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In March, Mike Lissner wrote for this blog about the troubling state of access to case law – noting with dismay that most of the US corpus is not publicly available. While a few states make official cases available, most still do not, and neither does the federal government. At Ravel Law we’re building a new legal research platform and, like Mike, we’ve spent substantial time troubleshooting access to law issues. Here, we will provide some more detail about how official case law is created and share our recommendations for making it more available and usable. We focus in particular on FDsys - the federal judiciary’s effort in this space – but the ideas apply broadly.

The Problem

If you ask a typical federal court clerk, such as our friend Rose, Pacific_Reporterabout the provenance of case opinions you will only learn half the story. Rose can tell you that after she and her judge finish an opinion it gets sent to a permanent court staffer. After that the story that Rose knows basically ends. The opinion at this stage is in its “slip” opinion state, and only some time later will Rose see the “official” version – which will have a citation number, copy edits, and perhaps other alterations. Yet, it is only this new “official” version that may be cited in court. For Mike Lissner, for Ravel, and for many others, the crux of the access challenge lies in steps beyond Rose’s domain, beyond the individual court’s in fact – when a slip becomes an official opinion.

For years the federal government has outsourced the creation of official opinions, relying on Westlaw and Lexis to create and publish them. These publishers are handed slip opinions by court staff, provide some editing, assign citations and release official versions through their systems. As a result, access to case law has been de facto privatized, and restricted.

FDsys

Of late, however, courts are making some strides to change the nature of this system. The federal judiciary’s FDsys_bannerprimary effort in this regard is FDsys (and also see the 9th Circuit’s recent moves). But FDsys’s present course gives reason to worry that its goals have been too narrowly conceived to achieve serious benefit. This discourages the program’s natural supporters and endangers its chances of success.

We certainly count ourselves amongst FDsys’s strongest supporters, and we applaud the Judicial Conference for its quick work so far. And, as friends of the program, we want to offer feedback about how it might address the substantial skepticism it faces from those in the legal community who want the program to succeed but fear for its ultimate success and usability.

Our understanding is that FDsys’s primary goal is to provide free public access to court opinions. Its strategy for doing so (as inexpensively and as seamlessly as possible) seems to be to fully implement the platform at all federal courts before adding more functionality. This last point is especially critical. Because FDsys only offers slip opinions, which can’t be cited in court, its current usefulness for legal professionals is quite limited; even if every court used FDsys it would only be of marginal value. As a result, the legal community lacks incentive to lend its full, powerful, support to the effort. This support would be valuable in getting courts to adopt the system and in providing technology that could further reduce costs and help to overcome implementation hurdles.

Setting Achievable Goals

We believe that there are several key goals FDsys can accomplish, and that by doing so it will win meaningful support from the legal community and increase its end value and usage. With loftier goals (some modest, others ambitious), FDsys would truly become a world-class opinion publishing system. The following are the goals we suggest, along with metrics that could be used to assess them.

Goal

 Metrics

1. Comprehensive Access to Opinions - Does every federal court release every published and unpublished opinion?
  - Are the electronic records comprehensive in their historic reach?
 
2. Opinions that can be Cited in Court - Are the official versions of cases provided, not just the slip opinions?
  - And/or, can the version released by FDsys be cited in court?
 
3. Vendor-Neutral Citations - Are the opinions provided with a vendor-neutral citation (using, e.g., paragraph numbers)?
 
4. Opinions in File Formats that Enable Innovation - Are opinions provided in both human and machine-readable formats?
 
5. Opinions Marked with Meta-Data - Is a machine-readable language such as XML used to tag information like case date, title, citation, etc?
  - Is additional markup of information such as sectional breaks, concurrences, etc. provided?
 
6. Bulk Access to Opinions - Are cases accessible via bulk access methods such as FTP or an API?

 

The first three goals are the basic building blocks necessary to achieve meaningful open-access to the law. As Professor Martin of Cornell Law and others have chronicled, the open-access community has converged around these goals in recent years, and several states (such as Oklahoma) have successfully implemented them with very positive results.

Goals 3-6 involve the electronic format and storage medium used, and are steps that would be low-cost enablers of massive innovation. If one intention of the FDsys project is to support the development of new legal technologies, the data should be made accessible in ways that allow efficient computer processing. Word documents and PDFs do not accomplish this. PDFs, for example, are a fine format for archival storage and human reading, but computers don't easily read them and converting PDFs into more usable forms is expensive and imperfect.

In contrast, publishing cases at the outset in a machine-readable Oliver_Wendell_Holmes_Jr_circa_1930-editformat is easy and comes at virtually no additional cost. It can be done in addition to publishing in PDF. Courts and the GPO already have electronic versions of cases and with a few mouse clicks could store them in a format that would inspire innovation rather than hamper it. The legal technology community stands ready to assist with advice and development work on all of these issues.

We believe that FDsys is a commendable step toward comprehensive public access to law, and toward enabling innovation in the legal space. Left to its current trajectory, however, it is certain to fall short of its potential. With some changes now, the program could be a home run for the entire legal community, ensuring that clerks like Rose can rest assured that the law as interpreted by her judge is accessible to everyone.

 

Nik and DanielDaniel Lewis and Nik Reed are graduates of Stanford Law School and the co-founders of Ravel Law, a legal search, analytics, and collaboration platform. In 2012, Ravel spun out of a Stanford University Law School, Computer Science Department, and Design School collaborative research effort focused on legal citation networks and information design. The Ravel team includes software engineers and data scientists from Stanford, MIT, and Georgia Tech. You can follow them on Twitter @ravellaw

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

“To be blunt, there is just too much stuff.” (Robert C. Berring, 1994 [1])

Law is an information profession where legal professionals take on the role of intermediaries towards their clients. Today, those legal professionals routinely use online legal research services like Westlaw and LexisNexis to gain electronic access to legislative, judicial and scholarly legal documents.

Put simply, legal service providers make legal documents available online and enable users to search these text collections in order to find documents relevant to their information needs. For quite some time the main focus of providers has been the addition of more and more documents to their online collections. Quite contrary to other areas, like Web search, where an increase in the number of available documents has been accompanied by major changes in the search technology employed, the search systems used in online legal research services have changed little since the early days of computer-assisted legal research (CALR).

It is my belief, however, that the search technology employed in CALR systems will have to dramatically change in the next years. The future of online legal research services will more and more depend on the systems’ ability to create useful result lists to users’ queries. The continuing need to make additional texts available will only speed up the change. Electronic availability of a sufficient number of potentially relevant texts is no longer the main issue; quick findability of a few highly relevant documents among hundreds or even thousands of other potentially relevant ones is.

To reach that goal, from a search system’s perspective, relevance ranking is key. In a constantly growing number of situations – just like Professor Berring already stated almost 20 years ago (see above ) – even carefully chosen keywords bring back “too much stuff”.  Successful ranking, that is the ordering of search results according to their estimated relevance, becomes the main issue. A system’s ability to correctly assess the relevance of texts for every single individual user, and for every single of their queries will quickly become – or has arguably already become in most cases – the next holy grail of computer-assisted legal research.

Until a few years back providers could still successfully argue that search systems should not be blamed for the lack of  “theoretically, maybe, sometimes feasible” relevance-ranking capabilities, but rather that users had to be blamed for their missing search skills. I do not often hear that line of argumentation any longer, which certainly does not have to do with any improvement of (Boolean) search skills of end users. Representatives of service providers do not dare to follow that line of argumentation any longer, I think, because every single day every one of them uses Google by punching in vague, short queries and still mostly gets back sufficiently relevant top results. Why should this not work in CALR systems?

Indeed. Why, one might ask, is there not more Web search technology in contemporary computer-assisted legal research? Sure, according to another often-stressed argument of system providers, computer-assisted legal research is certainly different from Web search. In Web search we typically do not care about low recall as long as this guarantees high precision, while in CALR trading off recall for precision is problematic. But even with those clear differences, I have, for example, not heard a single plausible argument why the cornerstone of modern Web search, link analysis, should not be successfully used in every single CALR system out there.

These statements certainly are blunt and provocative generalizations. Erich Schweighofer, for example, has already even shown in 1999 (pre-mainstream-Web),  that there had in fact been technological changes in legal information retrieval in his well-named piece “The Revolution in Legal Information Retrieval or: The Empire Strikes Back”. And there have also been free CALR systems like PreCYdent that have fully employed citation-analysis techniques in computer-assisted legal research and have thereby – even if they did not manage to stay profitable – shown “one of the most innovative SE [search engine] algorithms“, according to experts.

An exhaustive and objective discussion of the various factors that contribute to the slow technological change in computer-assisted legal research can certainly neither be offered by myself alone nor in this short post. For a whole mix of reasons, there is not (yet) more “Google” in CALR, including the fear of system providers to be held liable for query modifications which might (theoretically) lead to wrong expert advice, and the lack of pressure from potential and existing customers to use more modern search technology.

What I want to highlight, however, is one more general explanation which is seldom put forward explicitly. What slows down technological innovation in online legal research, in my opinion, is also the interest of the whole legal profession to hold on to a conception of “legal relevance” that is immune to any kind of computer algorithm. A successfully employed, Web search-like ranking algorithm in CALR would after all not only produce comfortable, highly relevant search results, but would also reveal certain truths about legal research: The search for documents of high “legal relevance” to a specific factual or legal situation is, in most cases, a process which follows clear rules. Many legal research routines follow clear and pre-defined patterns which could be translated into algorithms. The legal profession will have to accept that truth at some point, and will therefore have to define and communicate “legal relevance” much less mystically and more pragmatically.

Again, also at this point, one might ask “Why?” I am certain that if the legal profession, that is legal professionals and their CALR service providers, do not include up-to-date search technology in their CALR systems, someone else will at some point do so without the need for a lot of involvement of legal professionals. To be blunt, at this point, Google can still serve as an example for our systems, at some point soon it might simply set an example instead of our systems.

Anton GeistAnton Geist is Law Librarian at WU (Vienna University of Economics and Business) University Library. He law degrees from University of Vienna (2006) and University of  Edinburgh (2010). He is grateful for feedback and discussions and can be contacted at home@antongeist.com.

[1] Berring, Robert C. (1994), Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information, 69 Wash. L. Rev. 9.

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

[Editor's Note] For topic-related VoxPopuLII posts please see: Núria Casellas, Semantic Enhancement of legal information … Are we up for the challenge?; Marcie Baranich, HeinOnline Takes a New Approach to Legal Research With Subject Specific Research Platforms; Elisabetta Fersini, The JUMAS Experience: Extracting Knowledge From Judicial Multimedia Digital Libraries; João Lima, et.al, LexML Brazil Project; Joe Carmel, LegisLink.Org: Simplified Human-Readable URLs for Legislative Citations; Robert Richards, Context and Legal Informatics Research; John Sheridan, Legislation.gov.uk

In the fall of 2009, the American Association of Law Libraries (AALL) put out a call for volunteers to participate in our new state working groups to support one of AALL’s top policy priorities: promoting the need for authentication and preservation of digital legal resources. It is AALL policy that the public have no-fee, permanent public access to authentic online legal information. In addition, AALL believes that government information, including the text of all primary legal materials, must be in the public domain and available without restriction.

The response to our call was overwhelming, with volunteers from all 50 states and the District of Columbia expressing interest in participating. To promote our public policy priorities, the initial goals of AALL’s working groups were to:

  • Take action to oppose any plan in their state to eliminate an official print legal resource in favor of online-only, unless the electronic version is digitally authenticated and will be preserved for permanent public access;
  • Oppose plans to charge fees to access legal information electronically; and
  • Ensure that any legal resources in a state’s raw-data portal include a disclaimer so that users know that the information is not an official or authentic resource (similar to what is included on the Code of Federal Regulations XML on Data.gov).

In late 2009, AALL’s then-Director of Government Relations Mary Alice Baish met twice with Law Librarian of Congress Roberta Shaffer and Carl Malamud of Public.Resource.org to discuss Law.gov and Malamud’s idea for a national inventory of legal materials. The inventory would include legal materials from all three branches of government. Mary Alice volunteered our working groups to lead the ambitious effort to contribute to the groundbreaking national inventory. AALL would use this data to update AALL’s 2003 “State-by-State Report on Permanent Public Access to Electronic Government Information and the 2007 “State-by-State Report on Authentication of Online Legal Resourcesand 2009-2010 updates, which revealed that a significant number of state online legal resources are considered to be “official” but that few are authenticating. It would also help the Law Library of Congress, which owns the Law.gov domain name, with their own ambitious projects.

Erika Wayne and Paul Lomio at Stanford University’s Robert Crown Law Library developed a prototype for the national inventory that included nearly 30 questions related to scope, copyright, cost to access, and other use restrictions. They worked with the California State Working Group and the Northern California Association of Law Libraries to populate the inventory with impressive speed, adding most titles in about two months.

AALL’s Government Relations Office staff then expanded the California prototype to include questions related to digital authentication, preservation, and permanent public access. Our volunteers used the following definition of “authentication” provided by the Government Printing Office:

An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator.

Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.

An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be.

The “Principles and Core Values Concerning Public Information on Government Websites,” drafted by AALL’s Access to Electronic Legal Information Committee (now the Digital Access to Legal Information Committee) and adopted by the Executive Board in 2007, define AALL’s commitment to equitable, no-fee, permanent public access to authentic online legal information. The principle related to preservation states that:

Information on government Web sites must be preserved by the entity, such as a state library, an archives division, or other agency, within the issuing government that is charged with preservation of government information.

  • Government entities must ensure continued access to all their legal information.
  • Archives of government information must be comprehensive, including all supplements.
  • Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.
  • Governments must plan effective methods and procedures to migrate information to newer technologies.

In addition, AALL’s 2003 “State-By-State Report on Permanent Public Access to Electronic Government Information” defines permanent public access as, “the process by which applicable government information is preserved for current, continuous and future public access.”

Our volunteers used Google Docs to add to the inventory print and electronic legal titles at the state, county, and municipal levels and answer a series of questions about each title. AALL’s Government Relations Office set up a Google Group for volunteers to discuss issues and questions. Several of our state coordinators developed materials to help other working groups, such as Six Easy Steps to Populating Your State’s Inventory by Maine State Working Group coordinator Christine Hepler, How to Put on a Successful Work Day for Your Working Group by Florida State Working Group co-coordinators Jenny Wondracek and Jamie Keller, and Tips for AALL State Working Groups with contributions from many coordinators.

In October 2010, AALL held a very successful webinar on how to populate the inventories. More than 200 AALL and chapter members participated in the webinar, which included Kentucky State Working Group coordinator Emily Janoski-Haehlen, Maryland State Working Group coordinator Joan Bellistri, and Indiana State Working Group coordinator Sarah Glassmeyer as speakers. By early 2011, more than 350 volunteers were contributing to the state inventories.

Initial Findings

Our dedicated volunteers added more than 7,000 titles to the inventory in time for AALL’s June 30, 2011 deadline. AALL recognized our hard-working volunteers at our annual Advocacy Training during AALL’s Annual Meeting in Philadelphia, and celebrated their significant accomplishments. Timothy L. Coggins, 2010-11 Chair of the Digital Access to Legal Information Committee, presented these preliminary findings:

  • Authentication: No state reported new resources that have been authenticated since the 2009-2010 Digital Access to Legal Information Committee survey
  • Official status: Several states have designated at least one legal resource as official, including Arizona, Florida, and Maine
  • Copyright assertions in digital version: Twenty-five states assert copyright on at least one legal resource, including Oklahoma, Pennsylvania, and Rhode Island
  • Costs to access official version: Ten states charge fees to access the official version, including Kansas, Vermont, and Wyoming
  • Preservation and Permanent Public Access: Eighteen states require preservation and permanent public access of at least one legal resource, including Tennessee, Virginia, and Washington

Analyzing and Using the Data

In July 2011, AALL’s Digital Access to Legal Information Committee formed a subcommittee that is charged with reviewing the national inventory data collected by the state working groups. The subcommittee includes Elaine Apostola (Maine State Law and Legislative Reference Library), A. Hays Butler (Rutgers University Law School Library), Sarah Gotschall (University of Arizona Rogers College of Law Library), and Anita Postyn (Richmond Supreme Court Library). Subcommittee members have been reviewing the raw data as entered by the working group volunteers in their state inventories. They will soon focus their attention on developing a report that will also act as an updated version of AALL’s State-by-State Report on Authentication of Online Legal Resources.

The report, to be issued later this year, will once again support what law librarians have known for years: there are widespread issues with access to legal resources and there is an imminent need to prevent a trend of eliminating print resources in favor of electronic resources without the proper safeguards in place. It will also include information on: the official status of legal resources; whether states are providing for authentication, permanent public access, and/or preservation of online legal resources; any use restrictions or copyright claims by the state; and whether a universal (public domain) citation format has been adopted by any courts in the state.

In addition to providing valuable information to the Law Library of Congress and related Law.gov projects, this information has already been helpful to various groups as they proceed to advocate for no-fee, permanent public access to government information. The data has already been useful to advocates of the Uniform Electronic Legal Material Act and will continue to be valuable to those seeking introduction and enactment in their states. The inventory has been used as a starting point for organizations that are beginning digitization projects of their state legal materials. The universal citation data will be used to track the progress of courts recognizing the value of citing official online legal materials through adopting a public domain citation system. Many state working group coordinators have also shared data with their judiciaries and legislatures to help expose the need for taking steps to protect our state legal materials.

The Next Steps: Federal Inventory

In December 2010, we launched the second phase of this project, the Federal Inventory. The Federal Inventory will include:

  • Legal research materials
  • Information authored or created by agencies
  • Resources that are publicly accessible

Our goals are the same as with the state inventories: to identify and answer questions about print and electronic legal materials from all three branches of government. Volunteers from Federal agencies and the courts are already adding information such as decisions, reports and digests (Executive); court opinions, court rules, and Supreme Court briefs (Judicial); and bills and resolutions, the Constitution, and Statutes at Large (Legislative). Emily Carr, Senior Legal Research Specialist at the Law Library of Congress, and Judy Gaskell, retired Librarian of the Supreme Court, are coordinating this project.

Thanks to the contributions of an army of AALL and chapter volunteers, the national inventory of legal materials is nearly complete. Keep an eye on AALL's website for more information as our volunteers complete the Federal Inventory, analyze the data, and promote the findings to Federal, state and local officials.

Tina S. Ching is the Electronic Services Librarian at Seattle University School of Law. She is the 2011-12 Chair of the AALL Digital Access to Legal Information Committee.

 

Emily Feltren is Director of Government Relations for the American Association of Law Libraries.

 
 

[Editor's Note: For topic-related VoxPopuLII posts please see: Barbara Bintliff, The Uniform Electronic Legal Material Act Is Ready for Legislative Action; Jason Eiseman, Time to Turn the Page on Print Legal Information; John Joergensen, Authentication of Digital Repositories.]

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

Source: AALL Universal Citation Guide (First Edition).

In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens' access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.

A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states.  Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.

To remedy this problem, we (and others) propose applying a system of vendor neutral (universal) citation to all primary legal source material, starting with the state codes. Assigning a universal, uniform identifier for state codes will make them easier to find, use, and cite. While we do not expect an immediate endorsement from The Bluebook, we hope that once these citations find their way into the stream of information, people will use them and states will take notice. We think it’s time to bring disruptive technology to bear on the legal information industry.

About Universal Citation


"Universal citation" refers to a non-proprietary legal citation that is applied the instant a document is created. "Universal citation" is also called a "vendor-neutral," "media-neutral," or "public domain" citation. Universal citation has been adopted by sixteen U.S. states in order to cite caselaw, but universal citation has not yet been applied to statutes by any state. A review of universal citation processes for caselaw is helpful in understanding how we may apply universal citation to statutes.

Briefly, a case follows this process before appearing as an official reported decision:

When issuing a written decision, a court first releases a draft called a slip opinion, which is often posted on the court’s Website. Private publishers then republish the slip opinion in various legal databases. A party can cite the slip opinion using a variety of citation formats, depending on the database.

Afterwards, the court transmits the slip opinion to the jurisdiction's Reporter of Decisions, who may be a member of the judicial system or a private company. The Reporter edits the opinions, and then collects and reprints them in a bound volume with a citation. To cite a particular page within a case, which is also referred to as pinpoint citation, a party cites the case name, the publication, the volume, and the specific page number that contains the cited content.

Before the advent of electronic publishing, these books were the primary source for legal research. And, while publishers still print cases in book format, the majority of users read the cases in digital form. However, opinions in online database lack physical pages. To address this, online publishers insert page numbers into the digital version of an opinion to correspond to page breaks in the print version. Thus, the pinpoint citation (or star pagination) for an opinion, whether in print or online, is the same.

Under most court rules, and Bluebook guidance, once the official opinion is published, the Reporter citation must be used (see Bluebook Rule 10.3.1).

The decisions are published by a private company, usually Thomson West, and anyone wanting to read them must license the material from the company. Thus, if you want to cite to judicial law, you must pay to access the Reporter’s opinions. (Public law libraries offer books and database access, but readers must visit the physical library to use their resources. Google Scholar also provides free access to official cases online, but they must pay to obtain and license the opinions. In other words, Google, not the end user, is paying for the access.)

Universal citation bypasses the private publisher, and allows courts to create official opinions immediately. Under this system, judges assign a citation to the case when they release it. They insert paragraph numbers into the body of the opinion to allow pinpoint citation. This way, the case is instantly citeable. There is no intermediary lag time between slip and official opinion where different publishers cite the case differently, and there is no need to license proprietary databases in order to read and cite the work. In the jurisdictions that have adopted this system, the court’s opinion is the final, official version. Private publishers may republish and add their own parallel citations, but in most jurisdictions the court does not require citation to private publishers' versions. (However, Louisiana and Montana require parallel citation to the regional reporter.)

The American Association of Law Libraries (AALL) developed the initial standards for vendor neutral citation formats. AALL published the Universal Citation Guide in 1999, and released an updated edition in 2004. The Bluebook adopted a similar scheme in Rule 10.3.3 - Public Domain Format. Under this format, a universal citation should include the following:

  • Year of decision
  • State’s 2-letter postal code
  • Court name abbreviation
  • Sequential number of the decision
  • “U” for unpublished cases
  • Pinpoint citation should reference the paragraph number, instead of the page number

The majority of states employing universal citation follow the AALL/Bluebook standard, but a few have adopted their own styles. (Illinois, Louisiana, Mississippi, New Mexico, and Ohio employ universal citation but use a different format than the AALL/Bluebook recommendation.)

Most states that use universal citation adopted it in the 1990s. Cornell Law Professor Peter Martin details these events in his article Neutral Citation, Court Websites, and Access to Authoritative Caselaw. Professor Ian Gallacher of Albany Law School has also written about the history of this movement in Cite Unseen: How Neutral Citation and Americas Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. To date, 16 states assign universal citations to their highest court opinions. (To date, Arkansas, Illinois, Louisiana, Maine, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming have adopted universal citation for caselaw.)  Illinois is the most recent state to adopt the measure (in June 2011), and the concept has been gaining traction in the legal blogosphere. John Joergensen at Rutgers-Camden School of Law started a cooperative effort called UniversalCitation.org this summer.

Universal Citation and State Codes

Applying universal citation to state statutes can provide the same benefits as to caselaw, making statutes easier to find and cite, and improving access. While all states publish some form of their laws online for the public, as Ed has noted, these versions of state laws are often burdened by copyright and licensing restrictions. With these restrictions in place, users are not free to reuse, remix, or republish law, resulting in stifled innovation and external costs associated with using poorly designed Websites that take longer to search.

Though the AALL provides guidance on universal citation for statutes, no state has adopted it. The Bluebook does not specifically reference universal forms of citations for statutes and generally requires citation to official code compilations. There are exceptions for the digital version of the official code, parallel citations to other sources, and the use of unofficial sources where they are the only available source. (Bluebook Rule 12 provides for citation to statutes, generally. The Bluebook addresses Internet sources in Rule 18.)

The AALL’s Universal Citation Guide provides a schema for citing statutes in a neutral format. Rules 305-307 lay out standardized code designations, numbering, and dating rules, and each state has a full description in the Appendices. Basically, the format uses the state postal code, abbreviations for the name of the statutes (Consolidated, Revised, etc.), and a date.

As a result, the universal citations look similar to the official citations.

The AALL universal citation uses a name abbreviation for the state name and the name of the statute compilation. AALL’s format does not use periods in the abbreviations. It also uses a different convention for the year. The Guide’s recommendation is to date the code by a “legislative event,” to make the date more precise. Using “current through” dating provides a timestamp for the version of the code being used. This approach is less ambiguous than listing simply the year.

States like California and Texas have very large, segmented code systems with more complicated official citation schemes. The AALL mirrors these with the universal version, giving each subject matter code an abbreviation similar to the one used by The Bluebook.

Universal citation does not designate whether the code version is annotated, and of course it does not mention the publisher of the source.

Experimenting with Universal Citation

Justia is now applying the AALL’s universal citation to the code compilations on our site. We add this citation to the most granular instance of the code citation, along with a statement identifying and explaining it. So far, we’ve added citations to the state codes of Hawaii, Idaho, Maine, and South Dakota.

We started with Hawaii. The official citation and the universal citation are fairly similar:

Official: Haw. Rev. Stat. § 5-9 (2010)
Universal: HI Rev Stat § x-x (2010 Reg Sess)

This is how the code looks on the Hawaii Legislature’s site:

This is how the code section looks on Justia. We added the citation right above the text of the statute.

On our site, the full citation is visible, so readers can quickly identify and cite to it.  The “What’s This?” link next to the citation explains the universal citation.

We used the Legislature’s site to determine the date.

We also added the universal citation to the title tags. This allows search engine users to see the universal citation in their search results. It makes the search results more readable, because the text of the statute name appears next to the citation. For example, compare a search for "Haw Rev Stat 5-9"

with "HI Rev Stat 5-9":

With the search results for the universal citation (properly tagged), more information about that citation is presented. This helps the user quickly identify and digest the best search results.

We hope to accomplish three objectives by attaching universal citations to our codes. First, we want to give people an easy way to cite the code without having to look at proprietary publications. Not all citation goes into legal briefs or other documents that require formal citation to “official” sources listed by The Bluebook. The AALL universal citation scheme is easy to read and understand, and uses familiar abbreviations (like postal codes). Providing a citation right on the page of the code section will help people talk about, use, and cite to code sections without having to access “official” sources behind a paywall.

Second, we hope to demonstrate that universal citation can be applied in an easy and straightforward manner. The AALL has already developed a rigorous standard for universal citation; we are happy to use it and not reinvent the wheel. Legal folks here at Justia researched the AALL citation and the proper year/date information, and programmers applied the citation to the corpus. Anyone can do this, including the states.

Third, we want to encourage the adoption and widespread use of vendor-neutral citation schemes. There’s been a lot of talk about vendor-neutral citation for caselaw, and we are excited by efforts like UniversalCitation.org. Applying these principles to state codes will help get universal citation into the stream of legal information online. Just seeing the citation and the “What’s This?” page next to it will introduce readers to the concept. The more people use universal citations for state statutes, the more states will be forced to examine their reliance on third party publishers as the “official” source.

Next Steps

We plan to apply the universal citation to all of the codes in our corpus, but we have encountered some obstacles to achieving this for all 50 states. First, some of the codes are quite large and difficult to parse. Ari Hershowitz has documented his efforts to convert the California code into usable HTML. States like California, Texas, and New York will be more labor intensive. Second, the currency, or timestamp, is not always readily apparent on the state code site. With Idaho, I had to make a call to the Legislative Office to find out exactly when they last updated the code.

Source: AALL Universal Citation Guide (First Edition).

The third, and perhaps most troubling, issue is the "unofficial" status of the online state code repositories. With the exception of a few states (see Colorado), the codes hosted on the states' own Websites are papered over with disclaimers about their authenticity. While I understand the preference for “official” sources when citing a code, there seems to be no good reason why the official statutes of any state are not available online, for free, for everyone. These are the laws we must obey and to which we are held accountable. Does the public really deserve something less than official version? The states are passing the buck by disclaiming all responsibility for publishing their own laws, and relying on third-party publishers, which charge taxpayers to view the laws that the taxpayers paid for. I hope that as we apply a universal citation to our state statutes, the law will become more usable for the public. By taking disruptive action and applying these rules to our large corpus of data, we hope that more people will see the statutes and cite using universal principles, and that the states will take notice.

We have assigned a universal citation to the first few states as a proof of concept. We will also be sharing our efforts by supplying copies of the code with the universal citations included for bulk download at public.resource.org. As we move forward with the remaining 46 states, we would love your input.  Comment here or contact me directly with your thoughts.

Peace and Onward.

[Editor's Note: For other VoxPopuLII posts on universal citation and the status of content in legal repositories, see Ivan Mokanov's post on the Canadian neutral citation standard, and John Joergensen's post on authentication of digital legal repositories.]

Courtney Minick is an attorney and product manager at Justia, where she works on free law and open access initiatives. She can be found pushing her agenda at the Justia Law, Technology, and Legal Marketing Blog and on Twitter: @caminick.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.

Law BooksQuestion: Is there a good reason why judges should not be blogging their opinions?

Follow my thinking here.

I, like many librarians, love books. By that I mean I love physical books. I love the feel of paper in my hand. I love the smell of books. When I attended library school, there was no doubt in my mind that I would work in a place surrounded by shelf after shelf of beautiful books. I was confident that I would be able to transfer that love of books to a new generation.

That’s not how things turned out. Without recounting exactly how I got here, I should say that I am a technology librarian, and have been since even before I graduated library school. Technology is where I found my calling, and where libraries seem to need the most help. As I delve deeper into the world of library technology, particularly in the academic setting, I am increasingly forced to confront an uncomfortable reality: Print formats are inferior to electronic. And in some of my darker moments, I may even go so far as to echo the comments of Jeff Jarvis in his book “What Would Google Do” when he writes: “print sucks.”

On page 71, talking about the burden of physical “stuff,” Jarvis writes:

“It’s expensive to produce content for print, expensive to manufacture, and expensive to deliver. Print limits your space and your ability to give readers all they want. It restricts your timing and the ability to keep readers up-to-the-minute. Print is already stale when it’s fresh. It is one-size-fits-all and can’t be adapted to the needs of each customer. It comes with no ability to click for more. It can’t be searched or forwarded. It has no archive. It kills trees. It uses energy. And you really should recycle it, though that’s just a pain. Print sucks. Stuff sucks.”

In this paragraph, Jarvis may as well have been talking about the current state of online legal information. Although we may not have figured out the magic bullets of authenticity and preservation, the fact remains that print is a burden. In many cases, it is a burden to our governments, and our libraries.

There are good reasons to proceed cautiously towards online legal information. However, the most significant barriers to accepting new modes of publishing official legal information online, like judges' blogging opinions, may be cultural and political. In the end, law librarians and other legal professionals can’t allow our own nostalgia and habit to stand in the way of changes that can, should, and must happen.

AALL Working Groups

As many readers may know, the American Association of Law Libraries (AALL) began forming state working groups earlier this year. The purpose of those working groups was to “help AALL ensure access to electronic legal information in your state.” This is certainly a worthwhile goal, and one I obviously support. But the PDF document online, calling for formation of these working groups, sends a mixed message.

The very first duty of each working group is to “take action to oppose any plan in your state to eliminate an official print legal resource in favor of online-only unless the electronic version is digitally authenticated and will be preserved for permanent public access, or to charge fees to access legal information electronically. This is an increasingly common problem as states respond to severe budget cuts.”

Perhaps it’s just the phrasing of the document that bothered me. Rather than even providing guidance to states planning to eliminate print legal resources, AALL has set as its default position the opposition to any such plan.

In fairness, I note that the document hints that online-only legal resources might be acceptable if states don’t charge for them, or if such resources meet the rather complex standards laid out in the Association of Reporters of Judicial Decisions' Statement of Principles.

The Association of Reporters of Judicial Decisions (ARJD) published Statement of Principles: “Official” On-Line Documents in February 2007, revised in May 2008. Most tellingly, in Principle 3 of the Statement they write: “Print publication, because of its reliability, is the preferred medium for government documents at present."

Later in the document we find out why print is so reliable. Talking about electronic versions, the ARJD says they should not be considered official unless they are “permanent in that they are impervious to corruption by natural disaster, technological obsolescence, and similar factors and their digitized form can be readily translated into each successive electronic medium used to publish them.”

Without question, electronic material must be able to survive a natural disaster. The practice of storing information on a single server or keeping all backups in the same facility could be problematic. But emerging trends and best practices could help safeguard against these problems. In addition, programs like LOCKSS (Lots of Copies Keep Stuff Safe) can help alleviate some of these concerns by making sure many copies of each digital item exist at multiple geographic locations.

Also, digital format obsolescence has largely been overstated. PDF documents are not going anywhere anytime soon. Even conservative estimates establish PDF as a reliable format for the foreseeable future.

HTML may be no different. Consider that the very first Web document, Links and Anchors, is almost valid HTML5. Nearly 20 years later, that document is compatible with modern Web browsers.

BookOn the other side of the equation, is print impervious to natural disaster, or even technological obsolescence? Of course not. At Yale, with our rare books library and large historical collection, I have witnessed first hand the damage time can do to a physical book. Even more importantly, books in the last hundred years have been published so cheaply they may fall apart even sooner than books published centuries ago.

Print and Electronic Costs

The reality is that moving to online-only legal information is a good thing for everyone involved in producing and consuming such information. The burden of print is not limited to the costs forced upon states that produce it; that burden is also borne by libraries and citizens who consume it.

As mentioned above respecting the AALL working group document, many states are already looking at going online-only to cut costs, and why shouldn’t they? With current budget situations across the country being what they are, printing costs being particularly high, and electronic publishing costs being so low, of course states are looking at saving money by ending needless printing.

But libraries would also benefit from the cost savings of governments' moving to electronic formats. Not only do libraries currently have to subsidize printing costs by paying for the “official” print copies of legal materials; libraries also have to pay for the shelf space, as well as manpower to process incoming material and place it on the shelf, and may also have to pay additional costs for preserving the physical material. Not to mention the fact that we may pay for additional services that furnish access to the exact same material in an electronic format.

The costs involved in dealing with print legal resources are well known to most librarians. So why aren’t we clamoring for governments to publish online-only legal information?

Officialness, Authenticity, Preservation, and Citeability

Of course there are genuine concerns about online-only legal information. The big sticking points seem to be (in no particular order) officialness, authenticity, preservation, and citeability. Each issue is worthy of, and has been the subject of, much discussion.

Officiality may be in some ways the easiest and most difficult hurdle for online-only legal information to leap. To make an online version of legal material official, an appropriate authoritative body need only declare that version “official.” The task seems simple enough.

The more difficult part may be political. With organizations like AALL and ARJD currently opposing online-only options, that action may be politically difficult. Persuading lawyers, judges, and legislatures to approve such a declaration could be even more difficult. Can you imagine a bill, regulation, or some other action making a blog the “official” outlet for a particular court’s opinions?

The question of authenticity is more difficult to deal with from a technological perspective, although there has been interesting work done with respect to PDFs, electronic signatures, and public and private keys. The Government Printing Office (GPO) has done a great job leading the way in the area of authenticity: http://www.gpoaccess.gov/authentication/. The new Legislation.gov.uk site unveiled recently has taken a different approach from the GPO's. As John Sheridan has written in an earlier post, at the moment The U.K. National Archives are not taking any steps towards authenticating the information on the Legislation.gov.uk site, but they recognize the need to address the issue at some point. John Joergensen at Rutgers-Camden has taken yet another approach. And Claire Germain, in a recent paper about authentication practices respecting international legal information (pdf), states that those practices vary throughout the world. Thus the prickly question of authenticating online legal information is an issue that’s not going away any time soon.

AALL and ARJD have made a big deal about preservation of online legal information, an issue that's important for librarians, too. Unfortunately, this is another area where no good answer exists to guide us. As Sarah Rhodes wrote earlier this year, "our current digital preservation strategies and systems are imperfect – and they most likely will never be perfected."

The Library of Congress National Digital Information Infrastructure & Preservation Program (NDIIPP) has some helpful resources. The Legal Information Preservation Alliance (LIPA) also provides some good guidance in this area. However, many librarians are still reluctant to accept that digital preservation practices may enable us to end our reliance on print.

A similar reluctance can be seen in resistance to the Durham Statement, which -- though directed at law reviews -- also says something about other kinds of online legal information. Most notably, Margaret Leary of the University of Michigan chose not to sign the Durham Statement, and discussed her decision to continue to rely on print at a recent AALL program. In a listserv posting quoted in Richard Danner's recent paper, Ms. Leary asserted: "I do not agree with the call to stop publishing in print, nor do I think we have now or will have in the foreseeable future the requisite 'stable, open, digital formats'." Similarly, Richard Leiter explains that he signed the Durham Statement with an asterisk because of the statement's call for an end to the printing of law reviews.

What constitutes 'stable, open, digital formats' for the purposes of satisfying some librarians is unclear. As I mentioned earlier, a number of digital formats currently fit this description. This makes me think that there's something else going on here, a resistance to abandoning print for other reasons.

Citeability also becomes an issue as print legal information disappears. If there is no print reporter volume in which an opinion is issued, then how would one cite to an opinion (setting aside for a moment Lexis and Westlaw citations)?

However, efforts towards implementing “medium-neutral legal citation formats” have already been made. According to Ivan Mokanov's recent VoxPopuLII post, most citations in Canada are of a neutral format. In the United States, LegisLink.org has made an effort to improve online citations, as Joe Carmel describes in his recent post. Work on URN:LEX and other standards has resulted in some progress towards dealing with the citeability issue. Organizations like the AALL Electronic Legal Information Access & Citation Committee also deserve credit for taking this on. [Editor's Note: Those organizations have produced universal citation standards -- such as the AALL Universal Citation Guide -- which have been adopted by a number of U.S. jurisdictions.] Even The Bluebook supports alternative citation formats. For example, rule 10.3.3, “Public Domain Format,” specifies how to cite to a public domain or “medium-neutral format.” The Bluebook even goes so far as to allow citation in a jurisdiction’s specified format.

But despite all this work, nothing has yet stuck.

The Next Step

One thing you’ll notice respecting all of these issues is that they are currently unsettled. While AALL and ARJD have both suggested that they would look favorably on online-only legal information if it were official, authenticated, and preserved (they do not mention citeability), there is no indication of when we will reach a level of achievement on these issues that would be satisfactory to these organizations. Can governments, libraries, and citizens afford to wait?

Asking states to continue to bear the burden of publishing material in print as they run out of funding, and libraries to bear the expense of preserving that print, is irresponsible. While we might not have all of the answers now, we certainly have enough to move forward in an intelligent manner.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) has been working on an Authentication and Preservation of State Electronic Legal Materials Act. [Editor's Note: The Chair of the Act's Drafting Committee is Michele L. Timmons, the Revisor of Statutes for the State of Minnesota, and its Reporter is Professor Barbara Bintliff of the University of Texas School of Law.] According to the Study Committee's Report and Recommendations for the Act's Drafting Committee, the goal of the draft should be to "describ[e] minimum standards for the authentication and preservation of online state legal materials." This seems like an appropriate place to start.

Rather than setting unrealistic or vague expectations, the minimum standards provided by the draft act seem to allow some flexibility for how states could address some of these issues. As opposed to working towards a "stable and open digital format," which seems more a moving target than an attainable goal, the draft act sets forth an outline for how states can get started with publishing official and authentic online-only legal information. While far from finished, the draft act appears to be a step in the right direction.

What Is the Real Issue?

I think the real sticking point on this matter is mental or emotional. It comes from an uneasiness about how to deal with new methods of publishing legal information. For hundreds of years, legal information has been based in print. Even information available on the Lexis and Westlaw online services has its roots in print, if not full print versions of the same material. It’s as if the lack of a print or print-like version will cause librarians to lose the compass that helps us navigate the complex legal information landscape.

Of course, publishing legal information electronically brings its own challenges and costs for libraries. Electronic memory and space are not free, and setting up the IT infrastructure to consume, make available, and preserve digital materials can be costly. But in the long run, dealing with electronic material can and will be much easier and less costly for all involved, as well as giving greater access to legal information to the citizens who need it.

So Judges Blogging?Gavel

Question: Is there a good reason why judges should not be blogging their opinions?

Although he was the co-chair of the ARJD committee that produced the Statement of Principles, even Frank Wagner, the outgoing U.S. Supreme Court reporter of decisions, acknowledges that “budgetary constraints may eventually force most governmental units to abandon the printed word in favor of publishing their official materials exclusively online.” He also recognizes that the GPO’s work in this area may put an end to the printed U.S. Reports sooner than other “official publications.”

So were an appropriate authority to make them official, and some form of authentication were decided on, and methods of preservation and citation had been taken into account, would you feel comfortable with judges' blogging their opinions?

We have to get over our unease with new formats for publishing online legal information. We have to stop handcuffing governments and libraries by placing unrealistic and unattainable expectations on them for publishing online legal information. We have to prepare ourselves for a world where online is the only outlet for official legal information.

I still enjoy taking a book off the shelf and reading. I enjoy flipping through and browsing the pages. But nostalgia and habit are not valid strategies for libraries of the future.

jason_eisemanJason Eiseman is the Librarian for Emerging Technologies at Yale Law School. He has experience in academic and law firm libraries working with intranets, websites, and technology training.

VoxPopuLII is edited by Judith Pratt. Editor in chief is Robert Richards.