M E M O R A N D U M
TO: List Subscribers
FROM: Dorothy Molstad
DATE: November 8, 1994
We recently received a copy of the letter that follows, and
permission to disseminate it at our discretion. Since many
readers have still not taken a position on this topic, the points
raised by Mr. Jessen might be of use.
Frederick A. Muller
State Reporter
Office of the State Reporter
One Commerce Plaza
Albany, NY 12240
Dear Fred:
Thank you for sending the draft of the AALL's Task Force on
Citation Formats. I would like to offer a few unsolicited
comments from the California perspective. Although the
comments may not make pleasant reading for the Task Force,
please feel free to forward or disseminate all or any portion of
the comments at your discretion.
CONCLUSION
The AALL Task Force proposal for a nonproprietary, medium-
neutral citation system imposes significant new citation burdens,
complexities, and expense on the bench, bar, and public for
reasons that, as a practical matter, fall far short of providing
a
correlative public benefit.
The underlying problem is not proprietary citations. Rather, the
problem is that many jurisdictions long ago surrendered (or
never asserted) governmental responsibility for disseminating
and preserving the decisional law. Surrendering (or never
asserting) this basic governmental responsibility to private
entities (e.g., the West Publishing Company) is not going to be
much remedied by burdening the public with an unnecessary,
nonproprietary citation system.
DICHOTOMY BETWEEN DIFFERENT JURISDICTIONS
The proprietary citation problem is simply not significant in
large states that have viable official reports with citations
that
are safely in the public domain (e.g., New York and
California). Thus, those states most critical to the success of
such a radical change in citation style will be the states least
motivated to do so. There are just not enough good reasons for
states with official reports and public domain citations to
undertake the disruptive and radical changes reflected in the
Task Force's draft.
New York and California tend to define the legal marketplace in
many ways, and radically changing the citation system may or
may not be one of the ways. If these two states do not embrace
and enforce whatever emerges from the AALL's Task Force,
the citation style will only succeed on a limited basis, and
probably not at all.
Policy considerations aside, incidentally, the proposal is
completely impractical as to California law and practice, and it
is categorically unworkable in the present form.
WHO OWNS THE LAW, WHAT IS THE LAW, AND WHY
NOTHING WILL CHANGE
Debate over proprietary citations is often framed as "who owns
the law," but "what is the law" should also be an issue. Is "the
law" the raw opinions filed by courts, or is it the more
accurate,
useful, and internally enhanced (as distinct from summaries and
headnotes) versions of opinions published by West after
correcting citation and clerical errors in consultation with the
courts? The underlying assumption is that opinions are
fungible, and they are not.
West has, for years, increasingly served as something of a de
facto reporter of decisions for the federal courts (except the
Supreme Court) and those states without a reporter or other
custodian of the decisional law.
In those jurisdictions, legal information providers attempting to
undertake the work West does in ensuring the integrity and
accuracy of opinions will never match West in cost or quality of
the result because West's institutional integrity and enormous
economy of scale þ and the discrepancy will not even be very
close.
Legal information providers foregoing internal editing and
publishing opinions "as-filed" will, over time, lose based on the
competitive disadvantage in editorial quality. (Editorial
quality
is a market force that usually takes time to emerge, but it may
now be manifest in the legal information field).
Either way, West will continue to dominate, and the AALL's
proposal will not effect this reality. West will still be the
dominant source of opinion data, regardless of format, in
virtually every jurisdiction that does not take responsibility
and
control for reporting its own opinions, and even most that do.
And the price will likewise be basically unaffected by anything
related to the proposal (except in a minor negative way to cover
West's cost of complying with any rule of court that underpins
adoption of the AALL proposal). There is simply nothing in the
proposal that will change this business reality.
This does, however, lead to an issue of equity that has never
been much discussed. In short, if West is fulfilling basic
governmental responsibilities in disseminating and preserving the
decisional law for various jurisdictions, West's proprietary
interest in internal pagination may be a paltry price to pay for
this public service.
ABSENCE OF A PROBLEM FROM THE PUBLIC
PERSPECTIVE
What demonstrable detriment to the bench, bar, and public has
yet been caused by West Publishing Company's claims that
internal opinion pagination in the National Reporter System is
proprietary? (The basic motivation here, of course, is to
neutralize the proprietary aspects of West's citations).
>From a practical point of view, why make a fundamental,
disruptive, and radical change to the form for citing opinions
when West has apparently asserted proprietary pagination rights
only against entities competing very directly with West in
supplying opinion data? Theoretical threats do not warrant such
fundamental changes and competing businesses should be left to
make their own way against West.
PROBLEM IS NOT PRINT-BASED, PROPRIETARY
CITATIONS
The AALL Task Force proposal will add burden, but provide no
significant benefit, because the real problem is the number of
jurisdictions that have long failed to exercise proper (or any)
responsibility for, and control over, the preservation and
dissemination of the body of decisional law. These jurisdictions
have long been content to rely on the West Publishing Company
for this fairly fundamental responsibility of government, and
now there is objection because West asserts some proprietary
rights in the data against direct competitors.
ALTERNATIVES
The AALL Task Force proposal is so radical that serious
consideration should be given, in the alternative, to simply
eliminating the requirement of citing to point pages. This would
be no less radical and far less disruptive to the bench, bar, and
public.
One of the apparent purposes of the Task Force proposal is to
accommodate the proliferating nonprint sources of the law in a
single citation form. If nonprint sources of the law is "the
future," and if there is already broad access to these sources,
who needs point pages? Using the opinion database search
engine to find relevant points and passages in opinions is
probably just as fast and accurate as using point pages (or
"point
paragraphs").
Incidentally, numbering every paragraph seems excessive and
unnecessary. If the intent is to supplant point pages, only
every
third paragraph or so needs to be designated. This would
reduce the administrative expense of adding paragraph
designations (and neither the AALL proposal nor any other has
yet appreciated or adequately dealt with the hidden complexities
of numbering paragraphs), and it would minimize data clutter in
opinions. (For clarity, the designations should be sequentially
numerical, but the designations could be placed in brackets
between the relevant paragraphs, either centered or at the left
margin.)
States with official reports that have public domain citations
have an even less radical, more palatable alternative to the
proposal. In short, technology now makes it quite feasible to
paginate opinions within a few days of filing. Technology also
makes it feasible to rapidly disseminate pagination data. It is
within the grasp of current, proven computer technology to
assign volume numbers, inception pages, and point pages within
a few days of the filing or release of an opinion.
The obvious avenue for states with official reports is to focus
on
promptly paginating opinions, and on broadly and quickly
disseminating that information. Resources that would otherwise
go to implementing the AALL proposal should, in states with
official reports, be used to publish and otherwise disseminate
decisions more promptly.
This approach is, of course, linked to the print version of the
opinion, and an apparent assumption of the AALL's proposal is
that a print-based citation is somehow a limitation. In actual
practice, quite the opposite is true. Linking the citation to
the
print version of an opinion provides far more flexibility than
anything else yet proposed, particularly as to point page
citation.
This is because modern computer-composition technology allows
the compression, expansion, or other accommodation of vast
amounts of data with altering pagination, or at least altering
pagination in way that leaves points of law intact on the
original
page. This is a conclusive advantage over any paragraph
numbering protocol, particularly for states that file opinions
and
proceed with publication before the period of modifying the
opinion expires. (The contrary practice of filing an opinion,
but
not "releasing" it for publication until, weeks later, it is
"final"
is anachronistic.)
Cordially
Edward Jessen,
Reporter of Decisions
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