December 1, 1994
CITATION REFORM:
THE PAGE AS A METAPHORICAL UNIT
Christopher G. Wren
Jill Robinson Wren
Over the past several months, the citation-reform debate has
focused considerable attention on the use of paragraph numbering
to replace page numbering in public-domain, vendor-neutral,
media-neutral citation formats for cases. This focus has led, it
seems, to an assumption shared by many that paragraph numbers
have won acceptance as the preferred device for identifying the
location of information within a court decision.
It strikes us that this focus and assumption have obscured the
benefits offered by page numbers -- benefits that match or
surpass the benefits citation-reform proponents have noted for
paragraph numbers and that can with equal effectiveness achieve
the goal of providing citable public-domain divisions that work
in all media. We have been watching for this point to surface on
LAW-LIB, and not having seen it here (although it has been
published elsewhere), we offer this posting to balance the
discussion.
For readers who find this view worth exploring, we invite you
to continue reading. For those who disagree with this view or
find it irrelevant, we have provided this preview to give you an
opportunity to take advantage of the "delete" key before reading
on.
THE PROPONENTS' ARGUMENTS FOR PARAGRAPH
NUMBERING IN COURT DECISIONS
We have followed the citation-reform issue closely since late
March 1994, when we first learned that the Technology Resource
Committee of the State Bar of Wisconsin (to which we belong)
planned to propose a sweeping change in the way Wisconsin
appellate court decisions would be cited and published. As the
debate has unfolded in Wisconsin and elsewhere, we have been
struck by the ideas, which have surfaced throughout the
discussions, that computer technology has rendered the page
obsolete and that a new era in legal publishing will arise if
courts, lawyers, and publishers will get rid of page numbers as
the basis for pinpoint citations to court decisions.
Wisconsin citation-reform proponents have probably pursued
these notions most aggressively. The Wisconsin bar's Technology
Resource Committee, chaired by John Lederer, who has described
himself as a "substantially retired" Wisconsin lawyer who works
mainly as a law office automation consultant, put the idea in
stark form in a citation-reform resolution submitted to the bar's
Board of Governors in January 1994:
Page numbering is inherent in paper publication, but
is neither inherent nor desirable in electronic
publication.
In June 1994, in the report submitted to (and approved by) the
Wisconsin bar's Board of Governors, the committee returned to the
theme, asserting that a citation method based on page numbers
"forces use of a page delineation system based on paper that is
not particularly well suited for all media" (p. 9). In September
1994, at a meeting of the Wisconsin Judicial Council, Wisconsin
lawyer Rex Ewald, the Technology Resource Committee member
credited with conceiving the idea of a new citation format about
six years earlier, elaborated on the committee's and State Bar's
position. The minutes of that meeting summarize Ewald's
observations (p. 6):
Basically, there are four pioneering jurisdictions:
The 6th Federal Circuit, Louisiana, Colorado, and
Wisconsin. In [Ewald's] view, only [the Wisconsin
bar's] proposal is "pure," without any element of the
prior paper-based system. For this reason, it is
drawing the most excited comment around the nation
and the world. Each of the other jurisdictions has
compromised with the status quo and unnecessarily
complicated its scheme.
The American Bar Association's Judicial Electronic Data
Interchange (EDI) Committee also looks askance at pages in the
electronic setting. In a draft report submitted in August 1994
to the Council of the ABA's Section of Science and Technology,
the committee wrote:
. . . [P]age cites direct the reader to a
particular physical unit within a particular print
publication. Pagination bears little relation to
content; rather, it is determined by the physical
size of the page and typeface. Text breaks to a new
page not when it changes subject matter but rather
when it reaches the physical end of the page.
Pinpoint citing by reference to paper pages is
therefore a crude means of locating specific
content. . . .
Within the AALL, the Task Force on Citation Formats takes a
similarly dim view of page numbering. In _Electronic Publication
and Legal Citation Form: A Discussion and Proposal_ (discussion
draft dated 10/4/94), the task force characterizes page-oriented
citation as a relic of the Middle Ages:
Case citation form (name, volume, reporter, page,
court if necessary, year, and possibly a parallel
citation) has changed little since the Middle Ages.
It is highly dependent on the medium of paper, as
evidenced by the requirement of citing the volume
number of the book that the case is printed in, the
first page, and internal pages (when quoting or
paraphrasing) of cases. The form of a case citation
can change three times, depending on where the case
is available: on an online database, in slip form,
and in bound form.
The report throws its weight behind the Wisconsin model, in which
the authoritative version of court decisions will exist in
electronic form only.
THE MYTH OF TECHNOLOGICAL NECESSITY FOR
PARAGRAPH NUMBERS IN THE ELECTRONIC ENVIRONMENT
To us, it seems a dubious course of action to adopt paragraph
numbering in lieu of page numbering in the electronic environment
if that decision rests on a belief that print technology
accommodates page numbers but computer technology does not. In
particular, the drive to find alternatives to page numbering
seems curious to us in light of two characteristics of computer
technology.
First, as computer programmers have demonstrated, electronic
publications accommodate references to page numbers as readily as
they accommodate references based on other numbering schemes,
such as section numbers, paragraph numbers, or chapter and verse.
Indeed, for many years, users of LEXIS and WESTLAW have
encountered star-page numbers in online documents; many of those
numbers derive from the page numbers of print publications (such
as _United States Reports_), while others arise as electronically
created page numbers (as in a LEXIS Cite or WESTLAW Cite). These
online numbers are readily searchable for locating information
within a document.
The key point here is this: print methods of information
storage and retrieval and electronic methods of information
storage and retrieval share an equal indifference to the use of
any particular numbering mechanism as a preferred device for
designating or retrieving information.
In a computer, the ease or difficulty of handling a piece of
data like a page or paragraph number lies in the skill of the
programmer, not in the character of the data. Opting for
paragraph numbers rather than page numbers seems unlikely to ease
that programming task. If anything, switching to paragraph
numbers would seem to require additional programming by online
services already set up to recognize page numbering but not
paragraph numbering.
Second, as the Wisconsin committee's January 1994 resolution
notes, "[c]ourt opinions are currently largely produced in
electronic format"; similarly, the ABA draft report rests on the
well-founded assumption that courts issue decisions written with
word processors. Word processors typically possess a
characteristic particularly noteworthy in this context: they
need to know the physical dimensions of a document's page before
the user can create the document. Indeed, the many word
processors with which we have worked have come with a default
page size (8.5 by 11 inches) already built in. The word
processors the courts will use to create court decisions will
surely come with page characteristics already defined at the time
of installation, and any documents the courts create will come
with page breaks built in at the time of creation.
A CENTRAL QUESTION: WHY SWITCH TO PARAGRAPH NUMBERS?
In light of the effortlessness with which electronic
technology can accommodate page numbers, along with the
page-oriented design of the word processors the courts will use
to create court decisions, a question surfaces: why make
switching to paragraph numbering a critical component of citation
reform? After all, as the current chair of the ABA's Section of
Science and Technology noted earlier this year, paragraph
numbering is not essential to a citation-reform scheme. As he
wrote, an effective media-neutral, vendor-neutral citation merely
requires there be a sensible format for stating the
citation or prior precedent in the body of a brief or
opinion -- for example, "398 U.S. 15." This format
should be reasonably consistent with respect to
precedent emanating from a particular court.
. . . .
. . . It is not essential to settle the debate
about whether opinion-designation schemes should be
uniform or whether the divisions within opinions
should be by paragraph or by page. As long as the
divisions are marked electronically and in accordance
with a public domain syntax, the particular courts
can be allowed to have their own system. For
example, Louisiana recently decided to use its own
paper pagination scheme.
Robert W. Barger, "Technology Section Examines Electronic
Citations," Nat'l L.J., Aug. 8, 1994, at C8, C8. (Interestingly,
none of the citation-reform reports advocating paragraph
numbering as an alternative referencing system -- the reports of
the State Bar of Wisconsin, the ABA, and the AALL -- use
paragraph numbering themselves, even though no court, statute, or
Bluebook rule prohibits those organizations from following their
own citation recommendations.)
MOTIVATIONS FOR ADVOCATING PARAGRAPH NUMBERING
Perhaps an equally important question, what accounts for the
fervor of those advocating a switch away from page numbering for
identifying the location of material in court decisions? Several
motivations seem evident.
Dislike by some of the position West Publishing Company
occupies in the legal publishing market provides one obvious
theme in the debate. This antipathy rests principally on West's
successful defense of its copyright claims with respect to its
compilations of federal appellate and trial court decisions.
Most citation-reform advocates seem to view non-page citations as
a way of reducing West's influence. In this view, West produces
citable pages, so eliminating citable pages means eliminating --
or at least diminishing -- the influence of West.
The enthusiasm of some reformers also seems fueled in part by
the allure of electronic technology. Some view books and pages
as old-fashioned, even obsolete, and ready for replacement by
sleek new technology. Here, eliminating page numbers severs the
tie with print technology, hastening the day of the paperless
case reporter. In this view, good riddance to books, good
riddance to paper. The Wisconsin proposal takes a significant
stride in this direction by making the authoritative text of
court decisions available in an electronic medium only.
Citation-reform advocates also assert that locating
information based on a page reference rather than some more
precise pinpoint reference creates difficulties. In this view,
lawyers find it too challenging and time-consuming to locate
information based on a page reference and need a more
well-defined referencing system to make their work less
difficult. Shifting to paragraph numbers, the argument goes,
will make it easier to find information, much as reading statutes
or administrative regulations is made easier by using section
numbers.
As a corollary, some reformers see paragraph numbering as a
way of creating a tighter link between the referencing marker and
the content associated with the marker, much as statutory section
numbers or West's Key Numbers identify information according to
content. In this view, page numbers serve as inferior markers
because they are content-free and transparent to the reading of
the text. Or, to adapt a technology aphorism, page numbers in
court decisions are a bug, not a feature.
A DIFFERENT VIEWPOINT: THE PAGE AS A METAPHORICAL UNIT
In large part, the focus on the use of paragraph numbers in
citation reform seems to have arisen from concentrating on the
literal, physical characteristic of pages printed on paper and
from dismissing pages' metaphorical dimension. This literal
focus seems especially curious because metaphorical use of the
"page" pervades computer technology. Keyboards for
IBM-compatible personal computers have "page up" and "page down"
keys; LEXIS and WESTLAW keyboards also have "page up" (or
"previous page") and "page down" (or "next page") keys. Yet none
of those computers have literal pages in them. Likewise, LEXIS
and WESTLAW use pages in their LEXIS Cites and WESTLAW Cites,
even though those "pages" do not have any connection to a
corresponding print-based publication.
Even at a more "techie" level, the page remains a compelling
metaphor. The user guide for MS-DOS 5.0 notes (at page 276) that
a computer's "expanded memory is divided into 16K segments called
pages" and that the expanded-memory manager maps those pages into
an area called a "page frame." MS-DOS also defines the character
sets for different languages (French, Spanish, English, etc.)
through a mechanism called a "code page."
Computer technology is hardly the first to find utility in
incorporating a preceding technology in at least a metaphorical
sense. For instance, automobile manufacturers measure the power
of their vehicles in horsepower, not in technologically
equivalent watts or foot-pounds-per-second, even though
automobile manufacturers literally sought to displace horses as
the principal means of transportation. The metaphorical
connection with the earlier technology served a useful purpose --
providing continuity and a familiar frame of reference -- without
undermining the benefits offered by the new technology.
For citation reform, the metaphorical page can fill a role
similar to the one the metaphorical horse filled for the auto
industry and that metaphorical pages already serve for computer
manufacturers and software publishers.
CONNECTING PAST, PRESENT, AND FUTURE:
SIMPLIFYING CITATION REFORM BY USING PAGE NUMBERS
Perhaps because the citation-reform debate has proceeded on
the assumption that a "page" must be -- literally -- a printed
page, the debate has so far obscured a simple fact: *every*
proposed pinpoint marker so far offered for citation reform is
really public-domain, vendor-neutral, and media-neutral, even
when the proposed marker can trace its roots to a specific
medium. Each possible marker that has been proposed -- page
number, paragraph number, percentage-point marker (indicating the
percentage into a case a given textual reference occurs) -- is
simply an instance of what indexers refer to as a "locator" or
"reference locator." Each of the proposed locators can be
(a) placed by a court in a document at the time of
creation (thus making the locator public-domain
and vendor-neutral), and
(b) mapped from one medium to another without any
significant difficulty (thus making the locator
media-neutral).
Moreover, page numbering is no more difficult to implement in
electronic documents than is any other numbering method, and in
some respects could actually prove easier. For example, by
taking advantage of the page dimensions specified in a word
processor, a court could easily -- indeed, all but automatically
-- define fixed locations of page breaks in court decisions
instead of having to (among other things):
(a) decide which paragraphs need numbering (e.g., do
footnote paragraphs get their own numbers in
addition to the footnote number? do paragraphs
in indented text get their own paragraph
numbers?)
(b) write new macros to insert paragraph numbers
(c) ensure that the macros make distinctions between
paragraphs that get assigned numbers and those
that don't
(d) engage in additional proofreading to ensure that
paragraphs don't get misnumbered
When the court issues its decision, the page breaks (and the
corresponding page numbers) would be fixed in the decision. If
the court later revised the decision, the page numbers would
remain unchanged in the text, regardless of how much text the
court added or deleted. In contrast, with a paragraph-numbering
scheme, adding paragraphs would result in new paragraph numbers
(like 3a or 17b) and deleting paragraphs would leave numbering
gaps.
In short, technology does not require (or even imply a need
for) disrupting what already exists as the typical text-locating
system for court decisions, namely, page numbers. The use of
court-created page numbers satisfies every citation-reform
criterion for pinpoint reference markers, but without the extra
work required by a switch to paragraph numbering:
(a) the page numbers would be immediately available
for use (because the court would specify the
page numbers in the slip opinion at the time of
creating the decision)
(b) the page numbers would be fixed at the time of
creation and, because they would be unaffected
by later editing, would be permanent
(c) the page numbers would be vendor-neutral and
public-domain because they would be created by
the court
(d) the page numbers would be media-neutral because
they could be mapped from any medium to any
other (as LEXIS and WESTLAW do with star-page
markers in the electronic versions of documents,
such as court decisions and law reviews
articles, originally published in print
publications)
(e) the page numbers could also be mapped within the
same medium even when physical characteristics
differ (as, for example, Lawyers Cooperative and
West Publishing do in translating the page
breaks of _United States Reports_ into star-page
markers in _Lawyers' Edition_ and _Supreme Court
Reporter_)
In addition, page numbering offers courts flexibility
unavailable with other numbering systems. A court that prefers
to identify decisions with a sequential number can begin
renumbering pages with each decision, while a court that prefers
to maintain continuity with existing citation conventions can
number pages consecutively from decision to decision throughout a
given period, such as a year or a court's term.
The continued use of page numbers also avoids some potential
jurisprudential difficulties. First, because page numbers lack
relation to content, their use minimizes any likelihood that
lawyers and judges will come to parse cases the way they now
parse statutory materials. The use of paragraph numbers
increases the possibility of blurring distinctions between
common-law decisionmaking and statutory interpretation.
In statutory-type materials, the referencing system is
designed to make the section numbers content-significant, as
citation-reform advocates now propose for cases. For example,
the Wisconsin bar's citation report (at page 28) argues for
paragraph numbering in court decisions because paragraphs are
"logically related to the author's points and concepts." Indeed,
statute-numbering methods have provided the model to which
Wisconsin reformers point. The Wisconsin state law librarian
(who serves on the state bar subcommittee that developed the
Wisconsin proposal and who co-edited the final report with John
Lederer) recently promoted the Wisconsin proposal by highlighting
the similarity of the proposed numbering scheme to statutory
numbering. Marcia J. Koslov, "From the State Law Librarian,"
WSLL Newsletter, July-Dec. 1994, at 1, 1. Recently, another
member of the Wisconsin citation-reform committee remarked to a
friend of ours, Mathew Dew (also a Wisconsin lawyer), that
researchers should be able to access the content of cases with
the same precision with which they can access sections and
subsections in statutes, and that the Wisconsin proposal was an
important step in that direction.
But court decisions are specifically not drafted like
legislation, so proposals that seek to make court decisions take
on forms akin to those of statutes create a risk that blurring
the obvious structural distinctions between cases and statutes
will lead to blurring jurisprudential distinctions between them
as well. Professional designers know that form typically follows
function, but they also know that form can come to dictate
function. Changing the form of court decisions could result in
changing more than simply the form. Before making such a change,
it seems sensible to explore in as much depth as possible any
jurisprudential ramifications of structuring cases in a way that
encourages them to be read like statutes.
As for possible benefits attending the adoption of statute-
numbering methods for cases, does history offer any guidance?
Statute-numbering methods have been known to judges and lawyers
for centuries. If paragraph numbering offers significant
advantages over page numbering in court decisions, it seems that
judges, lawyers, and reporters of decisions would almost
certainly have spotted those benefits at some point in the
hundreds of years preceding the current citation-reform debate
and would have switched to paragraph numbering to gain those
advantages.
For lawyers, switching to paragraph numbering could prove
especially problematic in connection with waiver doctrines,
particularly in light of reformers' assertions that a major
purpose of paragraph numbering involves imposing greater
precision on pinpoint citations in case law. Based on experience
dealing with recurring questions of waiver at both the trial and
appellate levels, certain points stand out to us. In particular,
courts seem to allow more leeway in letting lawyers avoid the
consequences of inadvertent waiver when the waiver occurs because
the lawyer fails to cite a specific page within a cited case than
when waiver occurs because the lawyer fails to cite a precise
statutory section or subsection.
With a numbering scheme deliberately designed to tie a
pinpoint case-law reference closely to content in a statute-like
way, courts could quickly come to treat waiver arising from the
failure to cite specific paragraphs in a case as no different
from waiver arising from the failure to cite a specific statutory
section. This judicial response would both comport with a stated
purpose of the citation-reform effort and provide a simple,
bright-line rule for managing judicial case loads (by allowing a
virtually rote disposition of cases without reviewing the merits
of inadvertently waived claims).
For lawyers, such a development raises the inevitable
nightmare of malpractice claims. The practitioner's response
will likely consist of string citations to paragraph numbers
within a case, undermining the simplicity that citation reform
now promises. With such a response, pinpoint citation to
paragraph numbering will come to provide no more precision -- and
perhaps less -- than reformers now see in pinpoint citations to
page numbers. And if nothing else, this outcome could make case
citations lengthier and harder, rather than easier, to read:
imagine string cites of cases that include string cites to
paragraphs within those cases.
In short, to invert the earlier technology aphorism about bugs
and features, page numbers in a court decision in a common-law
system arguably serve as a jurisprudential feature rather than a
jurisprudential bug, precisely *because* they lack any relation
to content. Given this characteristic of page numbers,
page-based citations leave the case itself (or the specified text
taken in context), rather than selected paragraphs, as the focus
of decisionmaking and interpretation.
THE PRINCIPLE OF LEAST DISRUPTION
Donald Norman, currently an Apple Fellow at Apple Computer and
former professor and founding chair of the Department of
Cognitive Science at the University of California-San Diego, has
written widely about "user-centered system design." In addition
to numerous essays and technical articles, he has written _The
Design of Everyday Things_, _Things That Make Us Smart:
Defending Human Attributes in the Age of the Machine_, and _Turn
Signals Are the Facial Expressions of Automobiles_, and has
co-edited a collection of essays entitled _User Centered System
Design: New Perspectives on Human-Computer Interaction_.
From Norman's writings, we have distilled a notion we have
come to call "the principle of least disruption." This principle
says, in effect, that if you don't have to change something in
order to achieve the benefit you seek -- especially if that
"something" is widely used, understood, and useful -- don't
change it. Incorporate it.
If courts and publishers had always numbered cases with
paragraph numbers, the "least disruption" principle would weigh
heavily in favor of continuing with paragraph numbers because
they can work and be mapped in any medium, and their use would
represent a worthwhile continuation of a familiar, workable,
easy-to-use system.
Instead, courts and publishers have overwhelmingly used page
numbers for case citations, so the "least disruption" principle
weighs heavily in favor of continuing the use of page numbers
because they can work and be mapped in any medium and because
their use would represent a worthwhile continuation of a
familiar, workable, easy-to-use system.
To return a final time to the aphorism about bugs and
features, are page numbers a bug -- an "element of the prior
paper-based system" that should be discarded to achieve a "pure"
citation scheme (as the Wisconsin Judicial Council was told)? Or
are they a feature that can and should be retained, as Louisiana
decided to do as part of its citation reform?
As we see it, nothing -- technologically, theoretically,
practically, or jurisprudentially -- necessitates switching from
page numbering to paragraph numbering in court decisions to
achieve a public-domain system of citation that is both vendor-
neutral and media-neutral, and many factors arguing against
making this switch merit further investigation.
Copyright (c) 1994 Christopher G. Wren and Jill Robinson Wren.
Chris and Jill Wren
702 Emerson Street
Madison, Wisconsin 53715
Voice: (608) 251-1774
E-mail: cgwren@acm.org
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