BEFORE THE
JUDICIAL CONFERENCE OF THE UNITED STATES
COMMITTEE ON AUTOMATION AND TECHNOLOGY
WASHINGTON, D.C.
COMMENTS OF THE DEPARTMENT OF JUSTICE
Joel I. Klein
Acting Assistant Attorney
General
Antitrust Division
Communications with respect to this document should be addressed to:
Rebecca P. Dick
Deputy Director of Operations
Christopher J. Kelly
Senior Counsel for Intellectual Property
Frances E. Marshall
Special Assistant
Antitrust Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Room 3208
Washington, D.C. 20530
March 14 , 1997
.
Comments of the United States Department of Justice
1. As the American Bar Association Special Committee on Citation Issues has stated,
"continued growth of electronic publication of case reports is certain."1
Equally certain,
however, is that today's standard system of citation impedes the growth of electronic
publication of case law and competition generally among publishers of American case law.
By adopting the ABA's recommended citation form, the federal courts would eliminate
this barrier, fostering increased competition among case law publishers and leading to
swifter and less costly access to case law for attorneys and their clients. Because the
competitive benefits from use of the recommended citation form should substantially
outweigh the costs it imposes, the United States Department of Justice recommends that
the federal courts adopt the ABA's recommended citation form.
2. The Department of Justice has several interests in this matter. As an enforcer of
our Nation's antitrust laws, the Department has a strong interest in encouraging
competition in the provision of case law materials in order to encourage the development
of better products and service at lower prices. As an advocate for equal justice under law,
the Department seeks access for all citizens to our legal system; higher costs for legal
representation and related services, including legal research, diminish that access for some.
In addition, as the Nation's largest law firm, the Department is itself a consumer of case
law research products, with a strong interest in obtaining swift, comprehensive and
accurate access to judicial opinions at the lowest possible price to its client, the American
people.
3. As the ABA Report notes, the advent of computerization and high-speed data
transmission makes swift and accurate access to judicial opinions feasible in a way that
was unimaginable 25 years ago. Now, rather than waiting for printed copies of opinions
to arrive via a case reporter such as West Publishing Company's Federal Reporter or a
topical developments service like United States Law Week, practitioners and other
citizens can read opinions within hours of issuance. Case law publishers can assemble
collections of decisions based on whatever criteria they think the market might demand
and present them to users either on-line or on CD-ROM. Users then can choose between
comprehensive case law collections or ones that more narrowly target their substantive or
geographic interest; either way, they can do so without filling the bookshelves that printed
case reports would require. Today, as the ABA Report points out, a lawyer can carry the
equivalent of a library in her briefcase.2
4. These gains, however, will not be fully realized if electronic media remain subject
to an archaic citation system that penalizes their use. For all its virtues, that is what the
current citation system does. By keying on a particular publisher and by identifying the
location of cited text on the basis of that publisher's layout of a printed book, the current
system unnecessarily hampers the usage of other publishers' electronic products in two
ways. The chosen publisher enjoys a special advantage and the entire system is founded
on a type of textual division that is undesirable in electronic media.
5. Under the current rules of practice in most state and federal courts, a practitioner
ordinarily must cite a case by indicating its physical location in a particular series of
printed, bound case reports. That series is, with only a few exceptions, West's National
Reporter System.3
6. Consequently, to have a useable case law product, a case law publisher other than
West itself must be able to indicate to the reader where each case it publishes may be
found in West's printed system -- and not only the first page of each case, but each portion
of it, so that the reader may employ pinpoint citation to the particular part of the case
relevant to his analysis. Publishers other than West can convey this information only
through star pagination, the placement of symbols in the text of decisions indicating where
pages end and begin in the corresponding West volume.
7. West, however, contends that star pagination to its system infringes its copyrights
by copying the "arrangement" of those volumes. And, until it agreed with the Department
recently in an antitrust consent decree to license the right to star paginate to its reporters,4
West had only licensed star pagination to be used by the one other major on-line case law
provider, Lexis, and one other print publisher (in its Virgin Islands reporter). Moreover
West, as the monopoly licensor of an essential input into these firms' products, was in a
position to set a floor on their prices. Thus West, as virtually the only publisher of printed
case reports capable of satisfying practitioners' need to utilize the current citation system,
has been able to dictate the amount and price level of competition in the market for case
law products and services.
8. Whether star pagination infringes West's copyright is in litigation in two circuits.
The U.S. District Court for the Southern District of New York rejected West's claim,
granting summary judgment for one declaratory-judgment plaintiff and partial summary
judgment for another.5 In the Eighth Circuit, a third publisher is appealing
from a
summary judgment in favor of West.6 The United States has filed
amicus curiae
briefs in
both of these infringement cases, supporting the argument that star pagination does not
infringe any valid West copyright.
9. If West prevails in this litigation, because of the recent Thomson-West consent
decree, case law publishers will still be able to employ star pagination, by license at a
royalty rate no higher than that specified in the decree. But they will be left at a distinct
competitive disadvantage, and their costs will be significantly higher than they would be if
the standard citation form were not based on one firm's proprietary product.
10. Even if the
plaintiffs prevail and may star paginate to West's reporters without
having to pay a royalty, star pagination is not costless. It still entails the expense of
accurately ascertaining where page breaks fall in West's volumes, and accurately
incorporating that information in another product. This process unnecessarily consumes
resources which could be more efficiently employed to make a better or less costly
product.
11. The additional cost of star pagination is particularly troublesome in connection
with electronic case law products. When published in electronic media, cases may be
easily found by employing information intrinsic to the case, such as parties' names, the
court, and the docket number; there is no need for extrinsic information, such as where a
particular publisher has placed the case in its printed reports. And page numbers, which
vary with the format of a particular printed version, are wholly irrelevant to the electronic
"location" of a case. By incorporating star pagination, the new electronic products serve
the existing citation system; instead the citation system should serve efficient access to
cases within the new products.
12. Use of a media-neutral citation system loosens these restrictions on competition
among case law providers. Increased competition is likely to reduce the cost of case law
access to attorneys and their clients significantly. For example, before Louisiana
introduced its vendor-neutral citation system,7 West offered its CD-ROM
product there
for $5400. After the citation system's introduction, West's price fell to $2500 in response
to another publisher's offering of a competing CD-ROM for $1500.8 As the
current
litigation over West's copyright assertions shows, there is no shortage of firms eager to
compete in the provision of case law. Adoption of the ABA's recommended citation
system will eliminate a needless entry barrier, lower costs, and enable new firms to
compete on the merits of their products.
13. Moreover, there is a special value to the federal courts' adoption of a uniform
system. Nationwide adoption will ensure uniformity among the courts, so that a citation
permissible in the Southern District of New York may also be used in the Northern
District of California. A comparison of the citation systems of the Sixth Circuit and the
state courts of Louisiana and South Dakota, each a sensible solution standing alone,
suggests the confusion and compliance costs that would certainly arise if individual circuits
or districts each adopted their own preferred media-neutral citation form, a distinct
possibility absent action by the Judicial Conference.
14. In addition, the Judicial Conference is in an excellent position to lead the way for
all the Nation's courts. Its adoption of the ABA's recommended citation system will set
an influential precedent for each state court system to adopt the same citation form, both
to free competition among publishers of its case law and to ensure ease and compatibility
for its state's attorneys when they practice in another jurisdiction.
15. The Department of Justice also supports the ABA's recommendation that, for
some limited period of time, the federal courts "strongly encourage" parties to add parallel
citations to "commonly used printed case reports."9 The move towards
electronic
publication of case law is evolutionary, the product of technological advance and
consumer demand. The purpose of a new citation system is to accommodate that change,
not to mandate it. Not to allow for a parallel citation to a commonly used printed report
might indeed be a mandate.10 Many practitioners are still unfamiliar with
electronic
case
law products and the computer technology on which they depend, or do not have ready
access to them. Use of a purportedly media-neutral citation system to force them into the
electronic world would be inappropriate. Moreover, the current citation system will not
disappear in any case: for practical reasons it will remain necessary for citation to cases
predating the new system's adoption. Eventually, the parallel citation may become less
necessary to easily locate cases in printed volumes -- perhaps because print publishers will
have developed some means, such as a cross-indexing, to guide researchers from a case's
citation in the new format to its physical location in a printed volume. Perhaps some
adjustment, not now obvious, to the proposed citation format will reveal itself as a way of
making the format usable for printed reports even without a cross-index. At that point,
parallel citations no longer will be necessary to make the new format both convenient and
truly media-neutral. In the meantime, though, the parallel citation suggestion will make
the new citation truly media-neutral in the near term. It is a realistic way to ensure that
the new citation system is a benefit, not a punishment.
16. The cost of compliance with the ABA's recommended system will be small for
litigants, including the Department of Justice. The information that the citation comprises
will be easily found in any copy of an opinion a court issues, and its arrangement is
straightforward. The retraining required for attorneys, secretaries, and paralegals will be
minimal. The Department of Justice commits promptly to implement and promote the
proposed citation system if it is adopted, and will take every opportunity to employ it in
other fora so that it may become truly universal.
17. The burden of facilitating the proposed citation system would fall on the courts
themselves, since they would be responsible for numbering paragraphs and assigning
sequential opinion numbers. Were opinions still produced on typewriters, paragraph
numbering could be a source of delay and aggravation. With word processing software,
however, paragraphs can be numbered automatically, either while the document is being
typed (as this one was) or after it is completed. Both Canada and South Dakota seem
to have employed paragraph numbering without significant expense. Sequential opinion
numbers might appear more challenging, particularly in multi-division districts. As the
ABA Report notes, though, a simple computer hookup should accomplish this task
inexpensively. While these burdens are real, they must be weighed against the benefits
the courts too will enjoy as users of case law materials that will be disseminated more
broadly, swiftly, and inexpensively.
18. If any party is likely to lose more than it gains from the adoption of a media-neutral
citation system, it is the producers of products the current system favors. It is axiomatic
that the elimination of barriers to competition in any market makes the incumbent firms
worse off as consumers exercise their newfound options to choose. But the nature of
competition is such that even those incumbents can thrive in the new market if they choose
to adapt and produce products and services that consumers want. Particularly since the
ABA's parallel-citation provision creates a transitional period in which publishers of
printed reports can decide how best to configure their products in a market which is no
longer skewed in their favor, the proposed ABA citation system does them no injustice.
19. The Department of Justice urges the Judicial Conference to adopt and implement
the ABA's proposed citation system. This system will enable more firms to develop
products and services to answer the demands of case law users for timeliness, ease of use,
reliability, and low cost. These benefits in turn will make the judicial system more efficient
and access to justice more affordable for all.
FOOTNOTES
1 American Bar Association Special Committee on Citation Issues, Report concerning
recommendation to ABA House of
Delegates, May 23, 1996 (hereinafter "ABA Report"), ¶16.
2 ABA Report at ¶15.
3 Those exceptions are when the case is not published in West's system, either because it is too recent
or because
West has decided not to publish it. In the former instance, the current system allows citation to on-line services such as Westlaw and Lexis, and reporter services such as BNA's United
States Law Week. The latter instance opens the way for citations to specialized reporters such as the United States Patent Quarterly and BNA's Trade Cases. These services, however, are not
comprehensive citation alternatives to the West system.
4 See United States v. The Thomson Corp. & West Publishing Co., Civ. Action No. 96-1415
(PLF) (D.D.C.,
consent decree entered March 7, 1997) (resolving competitive concerns raised by West's acquisition by The Thomson Corporation).
5 Matthew Bender & Co. and HyperLaw, Inc. v. West Publishing Co., No. 94 Civ. 0589
(JSM) (S.D.N.Y. November
22, 1996)(bench ruling), appeal withdrawn, No. 96-9711 (2d Cir., March 4, 1997).
6 Oasis Publishing Co. v. West Publishing Co., No. 96-2887 (8th Cir., oral argument held
March 10, 1997).
7 See ABA Report at ¶48.
8 West's product offers case law back to 1942, whereas the competitor's product provides case law
only back to the
1970s. But for that difference, it is likely that the price of West's product would have decreased even further in response to the competition engendered by the adoption of the new citation
system.
9 ABA Resolution, ¶1.D.
10 While the proposed citation system, absent the parallel citation, is in theory media-neutral, as to case reporters published under the existing citation system, its effect is different. For example, without a parallel citation, the new citation system would offer little help in finding a case in the Federal Reporter, 3d Series.