Proposed Citation System -- Discussion of Proposal

Proposed Citation System

Report to Board of Bar Governors
Technology Resource Committee
June 22, 1994

DISCUSSION OF PROPOSAL

Criteria for Judging

Any examination of a proposal should match it against neutral criteria for an "ideal" system. In Legal Citation Form: Theory and Practice 75 Law Library Journal 148 (1982), Paul Axel-Lute suggested 13 criteria for citations. The following is a list of those criteria, additional criteria, and comments.

Axel-Lute Criteria

Uniqueness

There should be an unambiguous identification of the material. The old and proposed citation systems meet this criterion equally.

Brevity

The new system is shorter. It does not identify the publisher or volume since these become irrelevant with a universal system. More dramatically, the obviation of the need for parallel cites reduces the citation size considerably.

Redundancy

Axel-Lute uses this term in two positive ways -- the ability to recover from an error in the citation, and the ability to provide different sources for the same material so that the reader can find the most convenient source.

There is a change in redundancy in the first sense. The current citation system can recover from an error in the volume number or year since this information is more or less redundant-- one can approximately derive the year from the volume number and vice versa.

The proposed system does not have this same redundancy, but it does have a stronger redundancy. Because the citation is innate in the opinion itself (which contains the year, the case number, and the paragraphs) an error in citation can easily be recovered from.

The proposed system gains a major increase of redundancy in the second sense. All sources of the case law would be available to the user -- books, compendiums, CD-Rom, on-line databases, since the citation is contained within the case.

Informativeness.

This is the amount of information regarding the authority behind the statement used. Both the old and proposed systems meet this criterion equally.

Dissimilarity among forms.

This is to prevent confusion among different cites. The four digit year of the proposed citation system will provide a distinctive format that will prevent confusion with other forms.

Similarity to original.

This means that the cite should be as close as possible to the full identifying material on the cited material. Since the cite and the identifying material in the case would be the same, this principle would be fully satisfied. It currently is not.

Logic

The suggestion here is that the various items of the cite should follow a logical order. No substantial change would occur.

Permanence

There would be a gain. Currently a case is cited to a slip opinion, then to an advance sheet, then to a permanent reporter. Though rare, there can be changes between each of these steps.

The proposed system would become permanent as soon as the decision to publish is made, eliminating one area of possible change.

Readability/Transcribabily

This refers to the ability to express the cite in different media - handwriting, electronic media, etc. There would be a no significant difference in the mechanical ability to express the cite.

Tradition

There is a substantial difference. The current system is well understood, if a bit complex and involved. The proposed system, though simpler, is different and represents a substantial change.

Standardization

This is not as simple as it appears. The current system is surprisingly uniform across jurisdictions. However, it is fragmenting. Two states have already changed. Others are considering doing so.

The proposed system may become the proposed "standard" system. No part of it is peculiar to Wisconsin, and for the reasons stated, we think this system preferable. Whether it will become the standard is problematic.

Simplicity

The proposed system is substantially simpler than the present system.

Honesty

This means that the cite should cite the source actually used, rather than another source for the same material.

The underlying assumption of the proposed system is that all "copies" of the original are accurate copies. That is not an unreasonable assumption, given that an electronic copy serves as the original, and the conversion to other forms is generally by automatic processes. The citation is to the opinion itself, not the publication in which it is copied.

Additional Criteria

In addition to Axel-Lute's 13 principles we would add four others:

Precision: A citation to particular material should allow the user to easily find the precise material referred to. A paragraph cite has much greater accuracy than a page number, particularly when the page is in a multi-columned version (such as The North Western Reporter), and consequently covers a large amount of material.
Public Domain: A citation system should be usable by any person without legal hindrance. The proposed system would be.
Longevity: A citation system should be one that can handle changes in communications technology over a long period of time. By relating the citation system to the author's thoughts rather than to the particular media in which it is expressed we believe that the proposed system will have longevity regardless of technological change.
Universality: The citation system should be one that can be used within a variety of media and for a variety of purposes. The proposed citation system would be universal. The present system is not.

Reactions of Publishers

Mead Data Central/Michie Company (MDC)

Mead was represented at both the April 18 and May 6 meetings by Monica Yunag, Director, Editorial Policy & Licensing Standards.

Mead voiced strong support for the development of the proposed citation form.

Ms. Yunag assisted the committee by sharing her considerable expertise in the needs and requirements of database providers. She expressed some concern that Lexis was not presently programmed to recognize the paragraph sign, though this is temporary.

Lawyers Cooperative Publishing Company (LCP)

LCP is the publisher of Wisconsin Reports.

Though LCP favors the present system, LCP expressed their willingness to work with the Committee and to accommodate any changes that would be feasible in Wisconsin Reports to make it work well with the new system.

The principal change discussed was the inclusion of what cases were included in a volume by a listing on the spine, e.g., "1996 Cases 1-500", and a corresponding need to have the case numbers be sequential. Tables and indices were also discussed and LCP stated that they could accommodate proposed changes.

LCP also suggested that the proposed citation form avoid using uncommon characters, parentheses and punctuation and that the form be designed with as few keystrokes as possible. They also expressed their need for "lead" time to accommodate changes.

In a letter dated May 26, 1994, Mr. Robert Harty, State Government Relations Manager, noted that LCP claims copyright "in our headnotes and other original material."

West Publishing Company (West)

Mr. Michael Whetstone, Editorial Counsel, met individually with various subcommittee members. Mr. Whetstone expressed appreciation for being notified at the early stage of our discussions. He stated that West was interested in providing as much assistance as possible during our study of the proposed citation form.

Mr. Whetstone drafted a lengthy response to a proposed citation form issuing from the Judicial Council, suggesting several alternative options. In his response, he voiced some concern about changing a system that is not broken. West does not claim copyright on the initial case citation; copyright is claimed on all subsequent pagination.

John Nelson, Editorial Dept. Representative, attended a sub-committee meeting. Although unable to respond directly to questions from committee members, Mr. Nelson was able to convey the committee's discussions and actions to Mr. Whetstone.

Discussion of Arguments Against Proposal

Change

The single greatest disadvantage to the proposal is that it requires a significant amount of change. Change is expensive, if not in direct costs, then in the indirect costs of people adapting to change. Unless there is, or will be, substantial reasons for the change, one ought not change.

The Committee believes that the reasons exist now. Those reasons will have increasing sway in the future. The Committee believes that this change is better done early than late, so that the benefits of a necessary change can accrue more quickly and disruption be minimized.

Need for long lasting system

The citation system cannot be changed easily. A change made needs to be one that will endure for a very substantial period of time. One can contend that changing at this point is premature, and that further developments in technology will require further changes, thus it is better to wait.

The argument is reasonable, but, we believe, incorrect. The system proposed is not one that is dependent on the details of the technology. Rather, it focuses on the unique identifying characteristics of the decision itself. Because this makes the citation medium independent, it should accommodate future technology changes. Years, sequential numbers, and paragraphs are not likely to change with different technology.

Possible incompatibilities with other jurisdictions

Citation systems are in a period of change. If Wisconsin changes its system, it will be the third state to do so, unless others change prior to the effective date. Being a leader is fine. Leading without followers is not.

We did not adopt the systems already adopted by Louisiana and Colorado. Both states were, in our opinion, too conservative. They adopted systems that solved some of the problems but not all. Given the high barrier to change, a partial solution is not satisfactory.

We think the proposed system a better one, and one that, because of its qualities, other states are likely to adopt. There is considerable support for this system in the ongoing discussions among interested groups. However, we possess no crystal ball, and there is no certainty of this.

Need for use of two citation systems

We have proposed that Wisconsin not use parallel cites for cases after the adoption of this system. The proposed system will allow cases to be easily found in any medium including books. [n 8] The committee reached that conclusion late in its deliberations, but perhaps more firmly for its maturity.

Nonetheless, parallel cites must be used for earlier case law. There is no way to number the paragraphs in volumes long on the shelves. For a period of years this will cause court documents that cite newer and older cases to have two citation systems in them with possible confusion, and a consequent failure to reap all the benefits of a new and simpler citation system.

We have tried to minimize the confusion by adopting the four digit year to provide a strong visual cue as to whether a cite is in the new format or the old.

Nonetheless, we have been unable to devise a system that would allow soon dropping the old citation system for old case law.

Possible conversion of earlier case law

There is some suggestion in our discussions with publishers that one or more of the publishers might be willing to modify their existing database of old case law in electronic format to use paragraph numbers and case numbers. This would be convenient for the practitioner who wants to use all of his case law in electronic form. It would not, however, obviate the need to use the old citation system to accommodate the vast bulk of practitioners who already have and will use bound volumes.

Risk of losing publishers

To some degree private publishers currently sell the text of case law. It is not otherwise obtainable. The Committee's proposal should dramatically reduce the cost of obtaining the text.

The Committee believes that this will result in publishers competing much more vigorously in value added to the text -- the speed of delivery, means to search and access case law, compilations based on subject matter, the quality and usefulness of headnotes, explications, and other added material, hypertext links among cases and texts or articles. Competition that results in better means to search and organize the law is badly needed. Our present tools are rudimentary.

However, that result is not preordained. Another possible outcome is that publishers will decide that there is little or no money to be made in publishing Wisconsin case law and simply abandon the market. In discussions, one publisher suggested as much, though it later explicitly withdrew the suggestion. Both of the current publishers now indicate that they will continue to serve the Wisconsin market.

Withdrawal from the market by experienced legal publishers would be a real loss to the profession and the public. We desire, and believe, that they would instead invigorate the market by adding value to their products.

8 Note that LCP has stated their willingness to include the case numbers covered by a particular volume on the spine of Wisconsin Reports. [Return to text]