February 16, 1996
Growing Internet Law Libraries
Shake Century-Old Legal Tradition
By CHRISTINE BIEDERMANhe legal profession's century-old system of citations appears likely to crumble soon before a freedom-of-information war unleashed by the Internet, much to the dismay of the leading print publisher of case law.
The deciding battle in that war has been underway for several months in the hallowed halls of Harvard Law School, where every five years a consortium of Ivy League law reviews -- including Harvard, Yale, Columbia, and the University of Pennsylvania -- publishes A Uniform System of Citation, the guide to legal writing form regarded by lawyers as a sort of cross between the Chicago Manual of Style and the Bible.
Known throughout the profession simply as "the blue book," its recommendations are followed by all Federal courts as well as by the courts of all states except California. And the 16th edition, which the Law Review's president, Dave Friedman, said is due "sometime this spring or summer," will for the first time make the Internet a useful source of case law.
Although court decisions have been widely (and cheaply) available on the Internet for some time, until now they have been of little practical use because citation styles are tied to the printed page. For nearly 100 years, practitioners have consulted the blue book to determine the proper citation -- that is, the formal reference to a particular volume and page of an "official reporter," or hard-bound series of opinions.
Such shorthand has been essential in bringing order to the thousands of cases adjudicated each year and efficiency to legal proceedings. But in the computer age, holding such a massive data base hostage to the index of the printed page strikes many consumer advocates and law librarians as an inefficient anachronism.
Still, tradition has its defenders, the most ardent of which is Minnesota-based West Publishing Corporation, the largest legal publisher in the land and thus the primary publisher of official reporters.
Increasingly, though, law librarians and consumer advocates have been demanding a "vendor-neutral," or "pinpoint" citation system that can be used with either print or electronic sources. And the blue book, it seems, has heard them.
Friedman said that the blue book's editors "made a tentative decision" to proclaim that "when vendor-neutral citations are available, people should use those vendor-neutral citations as the preferred citation." In other words, instead of referring readers to a particular volume and page of a hard-bound book of legal opinions, in many cases the proper method will be to list the year, the court, the decision number assigned by the court, and the paragraph in which the cited material can be found.
To the lay person, it may seem a small change, but it effectively amounts to taking sides in an information war already under way in law schools and courts around the country.
On one side is West Publishing, which asserts that its volume- and page-numbering system is intellectual property, and it insists that would-be competitors must pay a licensing fee to use the numbers or wind up in court. On the other side are consumer advocates, law librarians, the Justice Department and growing numbers of would-be legal publishers eager to turn a profit from information freely available on the Internet.
West is not taking this insurrection lying down.
The company has filed or joined a number of lawsuits (though it refuses to say exactly how many) against would-be rival publishers over its intellectual property claims. In 1992, it aggressively and successfully lobbied the Judicial Council of the United States -- the body that oversees the Federal courts -- to persuade members not to adopt vendor-neutral citations. As a result, the Council shelved a proposal to create an alternative citation system nationwide but granted each circuit the authority to implement an alternative system.
This year, both West and its opponents have been twisting arms around Harvard Law Review.
"We've faced some lobbying on the issue," Friedman said. "We've even discussed whether we're driving West out of business."
But Friedman said he had little fear of that happening. "The blue book makes recommendations, but unless a court codifies a vendor-neutral citation as the official citation, we don't force people to do anything," he said. "So, while I wouldn't be surprised if West was disappointed, I'm not sure how quickly different state courts will shift to vendor-neutral citations."
It may happen sooner than he thinks.
Several states, including Colorado, Louisiana, South Dakota and Wisconsin are currently experimenting with vendor-neutral citations. Last month the California Supreme Court asked for comment on a proposal to adopt a "neutral format" citation for appellate opinions. At least 20 other states are currently studying the issue.
Meanwhile, at least one of the 13 Federal appellate circuits, the Sixth Circuit in Cincinnati, which includes Ohio, Michigan, Kentucky and Tennessee, has already adopted the vendor- neutral format.
And though David Sellers, a spokesman for the Administrative Office of the United States Courts, says "there is nothing about the topic pending before the Judicial Council or any of its committees at this time," the blue book's decision seems sure to be at least an informal topic at the council's March meeting.
To be sure, not everyone is thrilled with the idea of vendor- neutral publishing.
Lawyers as well as judges tend by nature to be a conservative and technology-adverse lot. "A lot of the judges still don't do their opinions electronically; they're still handwritten," said Gail M. Daly, Director of the Underwood Law Library and an Associate Professor of Law at Southern Methodist University. Daly, who is in the process of loading Federal court opinions from the Northern District of Texas on S.M.U.'s Web site, notes that because many judges are not favorably inclined toward technology, "it's a political problem for the courts."
Indeed, even judges who are relatively up-to-date have reservations.
"The problem is, us older guys are accustomed to reading on the printed page," said Richard A. Posner, Chief Judge of the Seventh Circuit Court of Appeals in Chicago and a member of the Judicial Council. "I'm actually used to computers. But to do a lot of reading on the computer is not great; if we had to, we'd get a jolt. So I'm not terribly enthusiastic. On the other hand, maybe West is making an unconscionable profit."
Judge Posner notes that the Seventh Circuit's opinions "are on line for a nominal fee, so even those who want to can get them cheaply, which is important."
Friedman argues that West's business concerns are overblown and that at any rate they are irrelevant to the review association. "Even if every state switched to pinpoint citations, West would still be able to have a pretty good business," he said. "They're an established, reputable publisher, so I don't think we're driving them out of business. And anyway, as far as I'm concerned, that's not a concern of ours."
At the moment, though, judicial opinions remain easy to access on the Internet but hard to cite in legal proceedings.
But given the steady growth of judicial information on the Internet, coupled with the Web's increasingly powerful search engines and ease of use, tradition seems fated eventually to bow to simple efficiency and sheer expedience. In the interim, though, a lot of old lawyers -- that is, anyone licensed before, say, 1996 -- are going to have to learn new tricks; how to cross-reference and cite cases from the Net, for example.
The opinions of all Federal Circuit Courts of Appeals, as well as those of the United States Supreme Court, are already available on the Net, and both Cornell and Washburn Universities maintain Web sites that feature directories to various repositories of court opinions.
"They have hypertext links to collections of opinions," Daly said, "so you just click your little mouse on the court you want, and you're there."
Christine Biederman, a Dallas lawyer and journalist at CyberTimes@nytimes.com welcomes your comments and suggestions.
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