Gallacher on Cite Neutrality
The law should be freely accessible to all, but in many ways it is not. Ian Gallacher’s Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system’s inertia and neglect. It turns out that 1) explains a lot about 2), as I’ll try to show below.
1) I believe Richard Posner has called the Bluebook a “hypertrophy of ritual”–an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:
Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.
An almost Linnaean taxonomy (reflecting Langdell’s geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes “F. 3d” instead of “F.3d”.
Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where’s the injustice?
2) Here Gallacher offers a tour de force telling of a story that has only been fragmentarily recognized before: how lawyers’ inertia and West’s extraordinary lobbying skills have blocked the adoption of a neutral citation system in the U.S. A truly neutral citation system would permit authors to refer to freely accessible versions of cases. Current practices demand cites to West’s proprietary reporters–and West has vigorously fought to control the reproduction of the page numbers within those reporters by anyone it has not licensed. Since the case law is mixed, Gallacher correctly observes that any good samaritan trying to reproduce the page numbers would face a “possible legal battle with West.”
Neutral citation practices would provide a way out of this dilemma; for example, judges could number the cases of their circuit (the third case of this year would be 2007.3), and the paragraphs within each case. However, this elementary step has gotten remarkably little traction:
[I]n 1994, the Technology Resource Committee of the Wisconsin State Bar proposed a neutral citation format that would allow the “courts, not private publishers, determine the citation” and would mean that “[t]he state, and not private publishers, will ‘own’ the final text of the case law. It will encourage publishers to compete by the value that they add to opinions such as headnotes or search tools, rather than by preferred access to the text of case law.”
Two heavyweights entered the neutral citation format debate in the mid-1990s; the American Association of Law Librarians (“AALL”) in 1995 and the American Bar Association (“ABA”) in 1996. Yet even though both organizations endorsed the need for neutral citations, there has been little movement towards acceptance of a neutral citation format.
What happened? Here the story takes a sad but predictable turn, as a crabbed resistance to change gets dressed up traditionalist aesthetics. One judge harrumphed that paragraph numbering “belongs to the civil law tradition and to decisions of the Federal Communications Commission, not to the common law.” Never too quick to challenge privilege, Judge Posner has said the innovation would “disfigure and bureaucratize the opinion-writing process.”
Like law review editors who cling to Bluebook “tradition” in the face of new technology that renders it obsolete, judges in a maze of confining precedent espy a rare chance to assert their autonomy by refusing case and paragraph numbering. This kind of traditionalism reminds me of the family that, from time immemorial, cut its Christmas ham in half and threw out the bottom half before cooking it…only to find out from their matriarch that the “tradition” originated because her stove of 70 years ago was too short to hold a full ham.
Fortunately, programs like AltLaw are beginning to challenge the proprietary status quo. As Gallacher observes, many laws require the federal judiciary to publish opinions online. We can only hope that all Circuits eventually join the Sixth in its commitment to providing a “court-generated, vendor neutral, reference number” for all cases–and the paragraphs within them. And imagine how scientific we’d look if we referred to an authority as, say, 2.2007.3.56 (for the 56th paragraph in the 3rd case of the year 2007 heard by the 2nd circuit).
PS: For real entertainment, read West’s litany of reasons given in opposition to neutral citation, on p. 32 ff. Here are my favorites:
[West’s report to the AALL asked] “[w]hat are the potential costs of numbering paragraphs in judicial opinions?” and observe[s] that it might be costly to hire clerks to number the paragraphs in judicial opinions, and note that “there exists the very real possibility that unintentional changes will be made to the substance of the opinions themselves.”
I never knew that numbered paragraphs could be so fraught with peril.