Introducing “Citing Legally,” helping to improve legal citation

A byproduct of this year’s revision of Professor Peter Martin’s Introduction to Basic Legal Citation and the forthcoming revision of The Bluebook, is a new blog “Citing Legally” at:
http://citeblog.access-to-law.com/

Citing Legally just posted this item about a survey to improve the Bluebook:

Ideas on how to improve The Bluebook? Online survey

October 21st, 2013

In preparation for the commencement of work on the 20th edition of The Bluebook, due out in 2015, that manual’s proprietors have placed a survey online at: https://www.legalbluebook.com/survey.  Anyone with views on how that reference might be improved in scope, delivery, or content should register them … soon. Submissions must be received by Nov. 8.

 

A Proposed Course of Action for UniversalCitation.org …

Cornell Law School’s Peter W. Martin, Jane M.G. Foster Professor of Law, Emeritus, who has contributed in the past on vendor-neutral citation (see, e.g., 99 Law Lib. J. 329 (2007)), recently wrote:

A Proposed Course of Action for UniversalCitation.org or Some Alternative Non-Commercial Entity

See: UniversalCitation.org

Among other things, Prof. Martin emphasizes right off the bat that:

It is 2011 not the mid-nineties. The environment has changed since the ABA and AALL first came out for public domain citation…

Cross-posted on Law Library Blog.

“Abandoning Law Reports for Official Digital Case Law”

“Abandoning Law Reports for Official Digital Case Law” 

Cornell Legal Studies Research Paper No. 11-01
PETER W. MARTIN, Cornell Law School
In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state’s intermediate court of appeals, had served as the official record of Arkansas’s case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.
 
The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and this new official database from the opinion archives now hosted at the judicial websites of most U.S. appellate courts. It proceeds to explore the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. Speculation about which other states have the capability and incentive to follow Arkansas’s lead follows. That, in turn, requires a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.

Codifying Commonsense – the Law.gov Principles

I am very pleased and proud to add my signature to the LAW.GOV PRINCIPLES AND DECLARATION just posted at public.resource.org.  These principles coalesced during the fifteen Law.gov workshops and have received the unanimous consent of the co-covenors of these Law.gov workshops.  The principles include items that we librarians have discussed for years, even decades, like vendor-neutral citation.  And these principles are consistent with the National Conference of Commissioners on Uniform States Laws (NCCUSL) draft of a new “Authentication and Preservation of State Electronic Legal Materials Act.”

Here are the principles:

The primary legal materials of the United States are the raw materials of our democracy. They should be made more broadly available to enable an informed citizenry.

Primary legal materials include documents of primary authority issued by governmental bodies, such as court opinions, statutes, and regulations. They also include the supporting documents and other media issued and maintained by those bodies, such as dockets, hearings, forms, oral arguments, and legislative histories. These materials can be found in every branch, at every level, national, tribal, state and local, and should be available to anyone with the will and the heart to obtain them.

The following principles should govern the dissemination of primary legal materials in the United States:

1. Direct fees for dissemination of primary legal materials should be avoided.

2. Limitations on access through terms of use or the assertion of copyright on primary legal materials is contrary to long-standing public policy and core democratic principles and is misleading to citizens.

3. Primary legal materials should be made available using bulk access mechanisms so they may be downloaded by anyone.

4. The primary legal materials, and the methods used to access them, should be authenticated so people can trust in the integrity of these materials.

5. Historical archives should be made available online and in a static location to the extent possible.

6. Vendor- and media-neutral citation mechanisms should be employed.

7. Technical standards for document structure, identifiers, and metadata should be developed and applied as extensively as possible.

8. Data should be distributed in a computer-processable, non-proprietary form in a manner that meets best current practices for the distribution of open government data. That data should represent the definitive documents, not just aggregate, preliminary, or modified forms.

9. An active program of research and development should be sponsored by governmental bodies that issue primary legal materials to develop new standards and solutions to challenges presented by the electronic distribution of definitive primary legal materials. Examples include the automated detection and redaction of private personal information in documents.

10. An active program of education, training, and documentation should be undertaken to help governmental bodies that issue primary legal materials learn and use best current practices.

Adherence to these principles by governmental bodies is not just good for democracy and justice, it will spur innovation and will encourage:

1. Broader use of legal materials in all parts of our education system, including our law schools.

2. Researchers in law schools, universities, and other research institutions to have broader access to bulk data, spurring important research on the functioning of our government.

3. Innovation in the legal information market by reducing barriers to entry.

4. Savings in the government’s own cost of providing these materials through adherence to best current practices.

5. Small businesses to understand rules and regulations they must deal with, reducing their costs and increasing their effectiveness.

6. Increased foreign trade by making it easier for our foreign partners to understand our laws.

7. Better access to justice by making legal information more broadly available to citizens.

How we distribute the raw materials of our democracy is a foundational issue in our system of government. Access to the raw materials of our democracy is a prerequisite for the rule of law and access to justice and makes real the principles of equal protection and due process.

and here are the signatories:

Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
 Yale Law School 

Robert C. Berring, Jr.
Walter Perry Johnson Professor of Law
Berkeley Law, University of California 

James Boyle
William Neal Reynolds Professor of Law
 Duke Law School 

Nicholas Bramble
Postdoctoral Associate in Law
 Yale Law School 

Tom R. Bruce
Director, Legal Information Institute
 Cornell Law School 

Richard A. Danner
Archibald C. & Frances Fulk Rufty Research Professor of Law
 Duke Law School 

Laura E. DeNardis
Executive Director, Information Society Project
 Yale Law School 

Edward W. Felten
Professor of Computer Science & Public Affairs
 Princeton University 

Jerry Goldman
Professor & Director, Oyez Project
 Northwestern University 

Joseph Lorenzo Hall
Visiting Postdoctoral Research Associate
UC Berkeley and Princeton University

  Jennifer Jenkins
Director, Center for the Study of the Public Domain
 Duke Law School 

Mitchell Kapor
Trustee
 Mitchell Kapor Foundation 

S. Blair Kauffman
Law Librarian and Professor of Law
 Yale Law School 

Mark A. Lemley
William H. Neukom Professor of Law
 Stanford Law School 

Lawrence Lessig
Professor of Law
 Harvard Law School 

Paul Lomio
Director, Robert Crown Law Library
 Stanford Law School 

Carl Malamud
President
 Public.Resource.Org 

Harry S. Martin III
Librarian & Professor of Law Emeritus
 Harvard Law School 

Peter W. Martin
Jane M.G. Foster Professor of Law
 Cornell Law School 

John Mayer
Executive Director
Center for Computer-Assisted Legal Instruction

  Judy Meadows
State Law Librarian
 State Law Library of Montana 

Paul Ohm
Associate Professor of Law and Telecommunications
University of Colorado Law School

  Tim O’Reilly
Chief Executive Officer
 O’Reilly Media 

John G. Palfrey
Henry N. Ess III Librarian & Professor of Law
 Harvard Law School 

Pamela Samuelson
Richard M. Sherman Distinguished Professor of Law
Berkeley Law, University of California

  Stuart Sierra
Assistant Director, Program on Law and Technology
 Columbia Law School 

Stephen Schultze
Associate Director, Center for Information Technology Policy
 Princeton University 

Tim Stanley
Chief Executive Officer
 Justia 

Erika V. Wayne
Deputy Director, Robert Crown Law Library
 Stanford Law School 

Christopher Wong
Postgraduate Fellow
 New York Law School 

Tim Wu
Professor of Law
 Columbia Law School 

Harlan Yu
Doctoral Student in Computer Science
 Princeton University 

Jonathan Zittrain
Professor of Law & Computer Science
 Harvard Law School

Reconfiguring Law Reports and the Concept of Precedent for a Digital Age

One of the joys of my job is that I get to see everything new that comes into the library — every new book and every journal issue passes my desk before finding a home in the stacks.  Today volume 53, issue #1 of the Villanova Law Review was in my pile and I discovered this terrific article by Peter W. Martin (Legal Research Plus is a fan of his, see earlier post, “Finding and Citing the ‘Unimportant’ Decisions of the U.S. Courts of Appeals.”).  The present article is also a Legal Scholarship Network paper, but somehow I missed it there (so having print subscriptions is a good redundancy).

The Legal Scholarship Network page includes this abstract:

Adherence to the “rule of law” entails a strong commitment to consistency – a belief that throughout a jurisdiction and across time judges should treat like cases alike. For over a century, the U.S. judiciary’s pursuit of this aim has relied principally upon print law reports. With unsettling rapidity, digital technology has dislodged that system, in practical fact, if not yet in the way lawyers and judges talk and think about case law. This article explores gains one might hope for from a “judicial consistency” system liberated from the constraints of print, likely affects on concepts of precedent, as well as challenges and forces of resistance standing in the way of change.

Professor Martin divides his article thusly:

I. Introduction

II. Precedent Dissemination in the Pre-Digital Era

     A. Public Law Reports

     B.  Public Law Libraries

     C. Commercial Law Reports: The National Reporter System

     D. Unpublished Appellate Decisions

     E.  The Disappearance of Independent State-Published Reports

III. The Arrival of Virtual Law Reports and Virtual Law Libraries

     A. Lexis and Westlaw

     B. New Players in This New Environment

IV. The Problematic and Costly Status Quo

     A. Costs or Inefficiences Resulting from the Continued Dominance of Print Concepts and Practices

 1. Citation Norms Still Dependent on Print

 2. Public Accessible Digital Opinions: Neither Official Nor Final

 3. Risk of Inconsistent Versions

 4. The Temptation to Trade Privileged Data Access or Official Status for Online Services

 5. Market Dominance Reinforced, Competition Inhibited

     B. Simple Means for Court Systems to Re-Establish Public Control Over the Dissemination of Their   Precedent

V. Opportunities for Richer and More Expansive Conception of Precedent Once Digital Dissemination Displaces Print as the Official Channel.

     A. Removal of the Sharp Dichotomy Between Decisions That Are Published and Those That Are Not

     B. Inclusion of Trial Court Decisions in the Flow of Precedent

     C. Opinions Structured Not Merely For Print But For Digital Distribution, Navigation and Search

     D. Precedent Augmented by Related Data

     E. Opinions Employing More Than Text

VI. Institutional Inhibitions and Sources of Resistance

VII. Conclusion

Finding and Citing the ‘Unimportant’ Decisions of the U.S. Courts of Appeals

“Finding and Citing the ‘Unimportant’ Decisions of the U.S. Courts of Appeals” 
Cornell Legal Studies Research Paper No. 08-015

 

PETER W. MARTIN, Cornell Law School

A Federal Rule of Appellate Procedure that took effect at the end of 2006 overturned past policies in several circuits that banned or severely limited citation of unpublished or nonprecedential opinions. All U.S. Court of Appeals decisions issued after January 1, 2007, published or not, may be cited. One of the objections raised by those opposed to the rule rested on concern about access to such opinions, which constitute more than 80% of the annual total. The Judicial Conference committee that drafted and pressed for adoption of the rule pointed out that federal legislation called on the circuit courts to place all their decisions, published or not, on the Web in text-searchable format. Wrote the committee, chaired by Justice Samuel Alito (then a Third Circuit judge), [T]he E-Government Act … makes unpublished opinions widely available at little or no cost.

Despite that legislative mandate, very real challenges confront anyone seeking to take advantage of the new rule who is unable or unwilling to pay the cost of Westlaw or Lexis. The paper surveys the challenges of searching for, retrieving, and citing unpublished or nonprecedential decisions of the U.S. Circuit Courts of Appeals without using those costly services. It also sets out a few straightforward steps the federal judiciary might take that would fulfill the promise of the E-Government Act’s provisions.

From: LSN Law & Courts Vol. 2 No. 25,  05/14/2008