JUDICIAL CONFERENCE OF THE UNITED STATES
COMMITTEE ON AUTOMATION AND TECHNOLOGY
Notice of Opportunity To Comment On The
American Bar Association Citation Resolution
COMMENTS OF THE DEPARTMENT OF JUSTICE
Joel I. Klein
Acting Assistant Attorney General
Communications with respect to this document should be addressed to:
Rebecca P. Dick
Deputy Director of Operations
Christopher J. Kelly
Senior Counsel for Intellectual Property
Frances E. Marshall
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
March 14 , 1997
Comments of the United States Department of Justice
- As the American Bar Association Special Committee on Citation Issues
has stated, "continued growth of electronic publication of case reports
is certain."(1) Equally certain, however,
is that today's standard system of citation impedes the growth of electronic
publication of case law and competition generally among publishers of
American case law. By adopting the ABA's recommended citation form,
the federal courts would eliminate this barrier, fostering increased
competition among case law publishers and leading to swifter and less
costly access to case law for attorneys and their clients. Because the
competitive benefits from use of the recommended citation form should
substantially outweigh the costs it imposes, the United States Department
of Justice recommends that the federal courts adopt the ABA's recommended
- The Department of Justice has several interests in this matter.
As an enforcer of our Nation's antitrust laws, the Department has a
strong interest in encouraging competition in the provision of case
law materials in order to encourage the development of better products
and service at lower prices. As an advocate for equal justice under
law, the Department seeks access for all citizens to our legal system;
higher costs for legal representation and related services, including
legal research, diminish that access for some. In addition, as the Nation's
largest law firm, the Department is itself a consumer of case law research
products, with a strong interest in obtaining swift, comprehensive and
accurate access to judicial opinions at the lowest possible price to
its client, the American people.
- As the ABA Report notes, the advent of computerization and high-speed
data transmission makes swift and accurate access to judicial opinions
feasible in a way that was unimaginable 25 years ago. Now, rather than
waiting for printed copies of opinions to arrive via a case reporter
such as West Publishing Company's Federal Reporter or a topical developments
service like United States Law Week, practitioners and other citizens
can read opinions within hours of issuance. Case law publishers can
assemble collections of decisions based on whatever criteria they think
the market might demand and present them to users either on-line or
on CD-ROM. Users then can choose between comprehensive case law collections
or ones that more narrowly target their substantive or geographic interest;
either way, they can do so without filling the bookshelves that printed
case reports would require. Today, as the ABA Report points out, a lawyer
can carry the equivalent of a library in her briefcase.(2)
- These gains, however, will not be fully realized if electronic media
remain subject to an archaic citation system that penalizes their use.
For all its virtues, that is what the current citation system does.
By keying on a particular publisher and by identifying the location
of cited text on the basis of that publisher's layout of a printed book,
the current system unnecessarily hampers the usage of other publishers'
electronic products in two ways. The chosen publisher enjoys a special
advantage and the entire system is founded on a type of textual division
that is undesirable in electronic media.
- Under the current rules of practice in most state and federal courts,
a practitioner ordinarily must cite a case by indicating its physical
location in a particular series of printed, bound case reports. That
series is, with only a few exceptions, West's National Reporter System.(3)
- Consequently, to have a useable case law product, a case law publisher
other than West itself must be able to indicate to the reader where
each case it publishes may be found in West's printed system -- and
not only the first page of each case, but each portion of it, so that
the reader may employ pinpoint citation to the particular part of the
case relevant to his analysis. Publishers other than West can convey
this information only through star pagination, the placement of symbols
in the text of decisions indicating where pages end and begin in the
corresponding West volume.
- West, however, contends that star pagination to its system infringes
its copyrights by copying the "arrangement" of those volumes. And, until
it agreed with the Department recently in an antitrust consent decree
to license the right to star paginate to its reporters,(4)
West had only licensed star pagination to be used by the one other major
on-line case law provider, Lexis, and one other print publisher (in
its Virgin Islands reporter). Moreover West, as the monopoly licensor
of an essential input into these firms' products, was in a position
to set a floor on their prices. Thus West, as virtually the only publisher
of printed case reports capable of satisfying practitioners' need to
utilize the current citation system, has been able to dictate the amount
and price level of competition in the market for case law products and
- Whether star pagination infringes West's copyright is in litigation
in two circuits. The U.S. District Court for the Southern District of
New York rejected West's claim, granting summary judgment for one declaratory-judgment
plaintiff and partial summary judgment for another.(5)
In the Eighth Circuit, a third publisher is appealing from a summary
judgment in favor of West.(6) The United
States has filed amicus curiae briefs in both of these infringement
cases, supporting the argument that star pagination does not infringe
any valid West copyright.
- If West prevails in this litigation, because of the recent Thomson-West
consent decree, case law publishers will still be able to employ star
pagination, by license at a royalty rate no higher than that specified
in the decree. But they will be left at a distinct competitive disadvantage,
and their costs will be significantly higher than they would be if the
standard citation form were not based on one firm's proprietary product.
- Even if the plaintiffs prevail and may star paginate to West's
reporters without having to pay a royalty, star pagination is not costless.
It still entails the expense of accurately ascertaining where page breaks
fall in West's volumes, and accurately incorporating that information
in another product. This process unnecessarily consumes resources which
could be more efficiently employed to make a better or less costly product.
- The additional cost of star pagination is particularly troublesome
in connection with electronic case law products. When published in electronic
media, cases may be easily found by employing information intrinsic
to the case, such as parties' names, the court, and the docket number;
there is no need for extrinsic information, such as where a particular
publisher has placed the case in its printed reports. And page numbers,
which vary with the format of a particular printed version, are wholly
irrelevant to the electronic "location" of a case. By incorporating
star pagination, the new electronic products serve the existing citation
system; instead the citation system should serve efficient access to
cases within the new products.
- Use of a media-neutral citation system loosens these restrictions
on competition among case law providers. Increased competition is likely
to reduce the cost of case law access to attorneys and their clients
significantly. For example, before Louisiana introduced its vendor-neutral
citation system,(7) West offered its
CD-ROM product there for $5400. After the citation system's introduction,
West's price fell to $2500 in response to another publisher's offering
of a competing CD-ROM for $1500.(8) As
the current litigation over West's copyright assertions shows, there
is no shortage of firms eager to compete in the provision of case law.
Adoption of the ABA's recommended citation system will eliminate a needless
entry barrier, lower costs, and enable new firms to compete on the merits
of their products.
- Moreover, there is a special value to the federal courts' adoption
of a uniform system. Nationwide adoption will ensure uniformity among
the courts, so that a citation permissible in the Southern District
of New York may also be used in the Northern District of California.
A comparison of the citation systems of the Sixth Circuit and the state
courts of Louisiana and South Dakota, each a sensible solution standing
alone, suggests the confusion and compliance costs that would certainly
arise if individual circuits or districts each adopted their own preferred
media-neutral citation form, a distinct possibility absent action by
the Judicial Conference.
- In addition, the Judicial Conference is in an excellent position
to lead the way for all the Nation's courts. Its adoption of the ABA's
recommended citation system will set an influential precedent for each
state court system to adopt the same citation form, both to free competition
among publishers of its case law and to ensure ease and compatibility
for its state's attorneys when they practice in another jurisdiction.
- The Department of Justice also supports the ABA's recommendation
that, for some limited period of time, the federal courts "strongly
encourage" parties to add parallel citations to "commonly used printed
case reports."(9) The move towards electronic
publication of case law is evolutionary, the product of technological
advance and consumer demand. The purpose of a new citation system is
to accommodate that change, not to mandate it. Not to allow for a parallel
citation to a commonly used printed report might indeed be a mandate.(10)
Many practitioners are still unfamiliar with electronic case law products
and the computer technology on which they depend, or do not have ready
access to them. Use of a purportedly media-neutral citation system to
force them into the electronic world would be inappropriate. Moreover,
the current citation system will not disappear in any case: for practical
reasons it will remain necessary for citation to cases predating the
new system's adoption. Eventually, the parallel citation
may become less necessary to easily locate cases in printed volumes
-- perhaps because print publishers will have developed some means,
such as a cross-indexing, to guide researchers from a case's citation
in the new format to its physical location in a printed volume. Perhaps
some adjustment, not now obvious, to the proposed citation format will
reveal itself as a way of making the format usable for printed reports
even without a cross-index.(11) At that
point, parallel citations no longer will be necessary to make the new
format both convenient and truly media-neutral. In the meantime, though,
the parallel citation suggestion will make the new citation truly media-neutral
in the near term. It is a realistic way to ensure that the new citation
system is a benefit, not a punishment.
- The cost of compliance with the ABA's recommended system will be
small for litigants, including the Department of Justice. The information
that the citation comprises will be easily found in any copy of an opinion
a court issues, and its arrangement is straightforward. The retraining
required for attorneys, secretaries, and paralegals will be minimal.
The Department of Justice commits promptly to implement and promote
the proposed citation system if it is adopted, and will take every opportunity
to employ it in other fora so that it may become truly universal.
- The burden of facilitating the proposed citation system would fall
on the courts themselves, since they would be responsible for numbering
paragraphs and assigning sequential opinion numbers. Were opinions still
produced on typewriters, paragraph numbering could be a source of delay
and aggravation. With word processing software, however, paragraphs
can be numbered automatically, either while the document is being typed
(as this one was) or after it is completed. Both Canada(12)
and South Dakota(13) seem to have employed
paragraph numbering without significant expense. Sequential opinion
numbers might appear more challenging, particularly in multi-division
districts. As the ABA Report notes, though, a simple computer hookup
should accomplish this task inexpensively.(14)
While these burdens are real, they must be weighed against the benefits
the courts too will enjoy as users of case law materials that will be
disseminated more broadly, swiftly, and inexpensively.
- If any party is likely to lose more than it gains from the adoption
of a media-neutral citation system, it is the producers of products
the current system favors. It is axiomatic that the elimination of barriers
to competition in any market makes the incumbent firms worse off as
consumers exercise their newfound options to choose. But
the nature of competition is such that even those incumbents can thrive
in the new market if they choose to adapt and produce products and services
that consumers want. Particularly since the ABA's parallel-citation
provision creates a transitional period in which publishers of printed
reports can decide how best to configure their products in a market
which is no longer skewed in their favor, the proposed ABA citation
system does them no injustice.
- The Department of Justice urges the Judicial Conference to adopt
and implement the ABA's proposed citation system. This system will enable
more firms to develop products and services to answer the demands of
case law users for timeliness, ease of use, reliability, and low cost.
These benefits in turn will make the judicial system more efficient
and access to justice more affordable for all.
1. American Bar Association Special Committee on
Citation Issues, Report concerning recommendation to ABA House of Delegates,
May 23, 1996 (hereinafter "ABA Report"), ¶16.
2. ABA Report at ¶15.
3. Those exceptions are when the case is not published
in West's system, either because it is too recent or because West has
decided not to publish it. In the former instance, the current system
allows citation to on-line services such as Westlaw and Lexis, and reporter
services such as BNA's United States Law Week. The latter instance opens
the way for citations to specialized reporters such as the United States
Patent Quarterly and BNA's Trade Cases. These services, however, are
not comprehensive citation alternatives to the West system.
4. See United States v. The Thomson Corp. &
West Publishing Co., Civ. Action No. 96-1415 (PLF) (D.D.C., consent
decree entered March 7, 1997) (resolving competitive concerns raised
by West's acquisition by The Thomson Corporation).
5. Matthew Bender & Co. and HyperLaw, Inc.
v. West Publishing Co., No. 94 Civ. 0589 (JSM) (S.D.N.Y. November
22, 1996)(bench ruling), appeal withdrawn, No. 96-9711 (2d
Cir., March 4, 1997).
6. Oasis Publishing Co. v. West Publishing
Co., No. 96-2887 (8th Cir., oral argument held March 10, 1997).
7. See ABA Report at ¶48.
8. West's product offers case law back to 1942,
whereas the competitor's product provides case law only back to the
1970s. But for that difference, it is likely that the price of West's
product would have decreased even further in response to the competition
engendered by the adoption of the new citation system.
9. ABA Resolution, ¶1.D.
10. While the proposed citation system, absent
the parallel citation, is in theory media-neutral, as to case reporters
published under the existing citation system, its effect is different.
For example, without a parallel citation, the new citation system would
offer little help in finding a case in the Federal Reporter, 3d Series.
11. Somewhat more difficult to envision are the
possibilities that print publishers of comprehensive case reports will
be able to adapt their products to make a parallel citation unnecessary,
or that demand for print-medium case reports will disappear entirely.
12. See ABA Report at ¶47.
13. See ABA Report at ¶49.
14. See ABA Report, Appendix A, at 16.