Proposed Citation System

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

CURRENT SYSTEM'S PROBLEMS

Lack of State Public Record

No Permanent Citation until Published
The citation system does not allow a permanent citation until after the printed copy has been privately produced, because the page format of the printed copy determines the citation.
Possibility of Divergence in "Official" Reporters
Wisconsin is unusual in having two official reporters. Though the Committee is unaware of an actual problem, the process is one that permits the possibility of divergence between the two official reporters. On rare occasion, for instance, some late editing changes are made by telephone or fax. That creates the possibility of one publisher, but not the other, having a change. There is no "master" text from which to reconcile differences.
Unavailability of Public Records from Public Sources
Because the opinion may be edited in the publishing process, the State does not possess a "final" copy of the opinion. Thus no public repository of final decisions exists.

Barrier to New Entrants

Necessity of "Select" Publishers
As it presently exists, the system cannot support numerous independent publishers of case law. Additional companies may publish case law, but absent a willingness to allow longer and longer parallel cites they must license from the existing publishers the ability to use their pagination schemes.

Nor can the system provide additional publishers the type of support that it currently provides the two official publishers. Currently court personnel provide several steps of proofing and editing, communicate individually with the publishers, and generally provide a high level of support.

That same level of support could not be provided to an increasing number of publishers. As an unavoidable result, the selected reporters necessarily enjoy a favored status.

West's Copyright Claim
West claims that it has a copyright in the page numbers used for "pinpoint" citations ( In a citation, "100 N.W.2d 123, 23", 23 would constitute the "pinpoint" citation). Though West has stated that lawyers and courts may freely use the citation without threat of action, West claims that other publishers may not include West's page numbers in their editions absent a license from West. See West Publishing Co. v. Mead Data Central, 616 F. Supp. 1219 (D. Minn. 1985), aff'd 799 F.2d 1219 (8th Cir. 1986), cert. denied 479 U.S. 1070 (1987).

West has assiduously defended this claim. At least one attempt to provide federal case law on CD-Rom has collapsed after the product was produced, reportedly because the principals could not suffer the costs of a suit by West. Appendix H.

West's claim is arguable. A current opinion of the Wisconsin Attorney General states that a recent Supreme Court decision obviates West's claim. Appendix C. However the practical effect, absent a ruling to the contrary, is that the claim makes it difficult for new entrants unless they obtain a license from West.

West's copyright claim tends to evoke a visceral response among lawyers. It has limited competition. However, it is neither the sole nor even a principal reason for the Committee's proposals.

Citation Form is Media Specific

Page Number Determined by Layout in Volume
Currently citations are to the page number in a given publisher's volume. The page number is an artifact of the printing process, determined by the type face selected and the page size. It does not reflect the author's thought, nor is it logical.
Availability Determined by Printing Date
The necessity of citing to a page number makes it difficult to cite a case unless and until one of the print publishers has printed the case. Since the printing process is a fairly involved one, this delays the date when the case can be cited in permanent form.
Not Universal
The page number is a very parochial division. It applies to only a specific edition of the case law. If another publisher elects to print the cases with a different page size, typeface or order, the page numbers are different.
Parallel Cites
Because the page number is edition specific, we have created the mechanism of parallel cites so that lawyer A with one publisher of case law can cite a case and lawyer B with a different publisher can find the cite. This is clumsy and it creates a large amount of unnecessary work in the preparation of a legal document.

Moreover, it cannot easily be expanded. If another publisher wished to publish case law, the publisher could not reach the same level of utility in the legal community unless the citation were added to the parallel cite. Lawyers would balk at the increased work.

Not Well Suited for Electronic Media
The page number is an artificial construct that is a byproduct of the printing process. Though it can be "added" onto electronic copies of opinions by inserting page markers, it is not innate in the electronic media. Adding page markers, makes the electronic copy dependent on the particular printed edition that provided the page numbers.

Moreover, electronic media can "scroll". This strips a "page" of any meaning at all. Prior to printed books, the ancients routinely stored information on scrolls. The citation system normally used for this information was Chapter, Scroll or "Book" and paragraph number. The obvious example is the Bible, e.g., Deuteronomy 16:19, , but the convention is the same for all ancient authors, e.g., Herodotus, Thucydides, Caesar, etc.

Interestingly, the conversion of these authors to modern books has not ended the use of the ancient method. For example, most modern editions of Thucydides continue to make references in the form "V,23"meaning Book 5, paragraph 23. Unlike the lawyer, the classical scholar need not worry about his edition in order to find a reference.

The proposal of the Committee is, in no small part, a proposal to use this system. In several millennia, we have come full circle.


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