Originally written as part of a team project on the future of online legal publishing
for an interdisciplinary Harvard University class on Business and the Internet (April 1997).

Subsequently published in the (now defunct) Internet Legal Practice Newsletter (May 1997).

Introduction

West publishes the National Reporter System, federal court reports, some official state reports, jurisdictional digests, as well as provides an online system that offers access to all this and other legal information, Westlaw.5 When the reporter system was established by John B. West in 1879, it enhanced access to court opinions; previously no centralized and comprehensive compilation of opinions existed for most courts.6 But even before the dramatic growth of the Internet and the World Wide Web in the mid-1990s, many parties had begun to assert that legal citations should be made to case reports in the public domain if the law's public-domain status was itself to be meaningful.7 Access to opinions has been described as part of the "common" to which the public is entitled; without a commonly usable system of case citation, a court opinion's "voice is silent, and its teachings are unheeded."8 Indeed, John B. West wrote in 1909 that:

The importance of an official citation for immediate use in text-books, digests, encyclopedias, etc., is perhaps not sufficiently realized . . . . The reporting number or universal citation being made a part of the title when the decision is filed, will attach and appear in any and all copies and all publications thereof. This makes the case easily found and permanently identified. All that is necessary is that all decision shall be consecutively numbered in the order in which them are rendered, and shall be reported and published in their numerical order . . . . In short, each case would be marked and identified unchangeably and unmistakably by one citation, authentic, universal and immediately available.9

In contrast, a public domain system of legal citation would not depend on West's page numbers, and thus, its proponents assert, facilitate the wider dissemination and publication of opinions. Because the state expects its citizens to act in accordance with its judicial opinions, the proper dissemination of case law is not only desirable but necessary.15 The uniform citation system recommended by the American Bar Association (ABA) and many other parties instead would use sequential decision numbers, and internal paragraph numbers within each decision to identify pinpoint citations. The numbers would be assigned by the courts and included in a decision at the time it is made publicly available by the court. A public domain system of legal citation would thus, proponents argue, be equally adaptable to printed and electronic case reports.16

A Public Domain System of Legal Citation

Thus the citation for a (hypothetical) decision of a federal court of appeals would be:

where 1996 is the year of the decision; 5Cir refers to the United States Court of Appeals for the 5th Circuit; 15 indicates that this citation is to the 15th decision released by the court in the year; 18 is the paragraph number where the material referred to is located, and the remainder is the parallel citation to the volume, series, and first page in the printed West case report where the decision may also be found.18

By not relying upon West volume and page numbers, citations would not only be available the instant an opinion was released from the court, but also be more precise than current citations, and usable by any publisher in any format.19 A public domain system of legal citation, proponents say, would be both vendor neutral, allowing smaller publishers to include citations on CD-ROMs or on the Internet,20 and medium neutral, facilitating pinpoint citations to material in an electronic case report; it would rely not on its parallel location on printed pages in a bound volume but remain constant regardless of the format.21 Thus, the system would be easy to use by the researcher, and provide a reader with certainty.22

Advocacy for a Uniform Citation System

At the urging of the Center for Study of Responsive Law (CSRL) and the Taxpayers Assets Program (TAP), Ralph Nader organizations, a number of legal publishers, librarians, lawyers, and consumer groups met in Washington, DC on October 19, 1994, to determine if a consensus could be reached regarding a vendor neutral public domain citation for court opinions.28 Using an e-mail list and two meetings in Washington several publishers agreed upon a system that uses paragraph numbers as the pinpoint citation, rather than the page breaks in the West paper volumes. West allegedly tried to disrupt the meeting, inviting dozens of people to attend at West's expense and object to the meeting and the agenda. West also took out four large ads in Washington Post to complain about the meeting. The West activities drew attention to the effort, however, and gave the then-obscure issue visibility.29

One of the most active advocates of citation reform, and the first party to resolve to call for a uniform system of citation, has been the State Bar of Wisconsin. On June 22, 1994, its Board of Governors adopted the report of its Technology Resource Committee, advocating a public domain system of legal citation.30 The report held, as later did the ABA, that citations should be vendor and media neutral, neither favoring any particular private publisher, nor any particular medium.31 Likewise, the report noted that the issue was of increasing importance as problems revolving around official citation, authoritative copies, and copyright claims in page numbers impeded the availability of legal materials on the Internet.32 New computer technologies, the committee noted, make it practical to provide case law to the courts, the Bar, and the public more effectively and less expensively than from books alone;33 the report held that "[o]ur goal is to establish a foundation that will allow the adoption of new technologies, but still support present technologies such as books."34

The American Association of Law Libraries (AALL), an organization of 5000 court, academic, firm and corporate librarians, also saw the rising need for a uniform system of citation. A Task Force on Citation Reform was appointed by AALL President Kay Todd in the Spring of 1994, prompted by the accelerating pace of electronic legal research and electronic dissemination of court opinions. After soliciting comments from the membership and outside organizations and individuals, it issued its report and recommendations to the Executive Board on March 1, 1995.35 The task force concluded that a requirement of citation to physical volumes and page numbers was anomalous for researchers who access court opinions through online, CD-ROM database services, or the Internet.36

To pre-empt a proliferation of alternative citation formats that at best would be chaotic, the AALL Executive Board proposed its own uniform citation system on July 18, 1995,37 as well as established a standing Committee on Citation Formats to monitor developments and serve as a liaison to other parties, such as the ABA, the United States Department of Justice (DOJ), states, and the editors of the "Bluebook."38 As did the Wisconsin Bar,39 the AALL proposed the national use of a vendor neutral, media neutral system, specifically recommending that: (1) citation forms should include case name, year of decision, court, opinion number and, where a pinpoint citation is needed, paragraph number;40 and (2) all jurisdictions should number their decisions by paragraphs and allow citations of paragraph numbers.41 The AALL system has been the model for many of the systems developed by state courts.42

The American Bar Association was a relatively late arrival to the issue, but its influence as the national professional association for lawyers is profound. The ABA first took up this issue at its 1995 annual meeting. But rather than decide it, the Board of Governors appointed a committee to consider how to bring citation in line with the growing availability of cases on the Internet and computer bulletin boards.43 The ABA's Special Committee on Citation Issues released its draft report on March 18, 1996, and Final Report and Recommendation on May 23, 1996.44 As described previously, it recommended a system similar to that proposed in Wisconsin and by other parties. A notable difference, however, was that it adopted a more middle ground position,45 recommending the use of parallel cites to West volumes and pages during the transition to electronic court decisions.46

On August 6, 1996, the House of Delegates adopted the committee's resolution, co-sponsored by the Section on Litigation, the Tort and Insurance Practice Section, the Section on Science and Technology, the Massachusetts Bar Association, the State Bar of South Dakota, the State Bar of Wisconsin, the Atlanta Bar Association, the Milwaukee Bar Association, and the ABA Coordinating Commission on Legal Technology. The margin was approximately 85% in favor of the motion to 15% opposed.47

The Implementation of a Uniform Citation System

A number of states have their own uniform citation systems, although how they are implemented varies considerably, according to Pat Brumfield Fry, a member of the ABA's Special Committee on Citation Issues.51 In Louisiana, the Supreme Court in 1993 issued an order requiring the use of a public domain citation form, based on docket numbers, as a parallel to citations to Southern Reporter.52 In South Dakota, the Supreme Court in 1995 adopted a rule, based on the work of the Wisconsin Bar, that requires citation to both a generic citation and the North Western Reporter.53 Maine also implemented a neutral citation requirement as of January 1997.54

Others states have considered or will consider uniform citation systems. In Colorado, the Chief Justice of the Supreme Court issued a notice in 1994 that all appellate decisions would include paragraph numbering. The court later stopped numbering paragraphs itself, but continues to permit private publishers to do so.55 In Wisconsin, the Supreme Court in 1995 declined to adopt the rule proposed by the state bar that would have required a uniform citation system, but decided to begin releasing opinions in electronic format and later re-evaluate the issue.56 In November 1996 the general council of the New Jersey State Bar Association unanimously voted to recommend that its state Supreme Court adopt a uniform citation system. The Arizona and Tennessee bars are also petitioning their Supreme Courts to implement a uniform citation system, and Georgia's Committee on Automation and Technology to the state bar may present its recommendations this spring.57 Other states have taken steps that would facilitate the introduction of a uniform citation system; Frederick A. Muller, New York's state reporter, has noted that the state has since 1991 had an electronic citation system that numbers every published decision in the state sequentially.58

A major step towards a public domain system of legal citation has been the updates in the sixteenth edition of the "Bluebook," the standard guide to legal citation,59 that acknowledge the growing importance of the Internet and other electronic media. Rule 10.3.1 has been updated to provide and preference a public domain format of citation for cases.60 Rule 12.5 also has been updated to provide a format for citing electronic databases as secondary sources,61 and a new rule, rule 17.3.3, has been created for citing World Wide Web pages and other documents on the Internet.62 These rules, however, do not solve all of the current problems of citation and introduce new ones. Rule 10.3.1, for example, mandates the use of a public domain citation only if it is "official" and "available." Rule 12.5 does not define an "electronic database." Rule 17.3.3 cannot be followed if a document is published on the World Wide Web; the rule instructs that web addresses should be enclosed between the symbols "<" and ">" - a style of notation that web browsers interpret as a Uniform Resource Locator (URL) address instruction and will not display on screen. Further, although recognizing the "transient nature of many Internet sources," rule 17.3.3 does not provide an adequate means to identify exactly what is being cited, nor does it actually provide any means of compensating for the transient nature of electronic documents.63

In addition, the development of a uniform citation systems that can be used for citing cases online is just the beginning, not the end, of the reforms necessary for citation to be adapted to an electronic era. Legal resources of all types are now or are becoming available online. The Supreme Court's decision in ACLU v. Reno is the first case in which a brief (from an amicus party) was submitted in an online style, on a CD-ROM.64 A "Coalition of E-Journals" has created a system of citation for electronic law journals. This system would apply not only to online-only journals but also to text journals published online in parallel.65 A handful of traditional law journals, such as the Cornell Law Review and the Florida State University Law Review, have embraced online publication.66 Indeed, scholars have begun to question whether the physical law journal has a future. Associate Dean for Communications and Information Technology and Professor of Law Bernard J. Hibbitts of the University of Pittsburgh School of Law published "Last Writes? Re-assessing the Law Review in the Age of Cyberspace," an article considering such issues, online.67

As this essay is being written, the Judicial Conference of the United States Committee on Automation and Technology has begun to study whether the federal courts should adopt the form of official citation for court decisions recommended by the ABA, and what the costs and benefits of such a decision would be for the courts, the bar, and the public. After soliciting public input in March, a public hearing was held before a subcommittee on April 3, 1997.68 Its recommendation will be heard by the full committee, and its recommendation in turn by the Conference.69

Opposition to a Uniform Citation System

Ingrained attitudes play a major role. Federal judges and their law clerks are provided with unlimited access to Westlaw and Lexis-Nexis at taxpayer expense, so the problems caused by the West monopoly on citations are not as evident; some judges think that there is no need at all for change from the status quo, and that it would be a costly burden to number opinions and paragraphs.71 Indeed, some commentators have described the counting of paragraphs from the beginning of a case as "highly onerous," although admitting to a belief that "market forces will inexorably lead to this foolish consequence."72 Many judges also do not believe that anyone but lawyers are interested in reading court opinions.73

Habit also plays a major role. One school of thought holds that lawyers' buying patterns are so established that practitioners will continue to buy and cite to West reporters, regardless of the availability of other publishers; some are still adjusting, shakily, to the third series of the Federal Reporter, F.3d.74 In fact, as of 1995, 19 states had no official reporters, relying by law or in practice upon West to archive their decisions.75 United States District Judge J. Owen Forrester, chair of the Georgia Bar's Committee on Automation and Technology as well as chair of Judicial Conference's Committee on Automation and Technology, expressed his concern as that the citations would not be "really a medium neutral system. . . . Can you imagine those cites on the spine of a book?"76 But this resistance is not insurmountable; Forrester also has said that he is impressed with the populist argument that "the common law ought to be available to the common man," from pro se litigants to lawyers on tight budgets.77

A related argument is that the citation issue is moot, given the number of courts that are now posting their decisions online. All United States circuit court decisions are now available, as are a growing number of other federal and state court decisions.78 If lawyers come to rely mainly on electronic resources, so the argument goes, page numbers are just an on-screen distraction; why bother with the number West slaps on days after the case appears online?79 But this does not explain what lawyers are to do so long as courts continue to in fact or in effect require West page numbers. Alan Sugarman, CEO of HyperLaw, Inc., further warns that opinions posted on the Internet are not to be trusted.80 Some circuits, such as the 2d, 5th, and 8th, have not indicated if an opinion has been subsequently amended, and use the same file name for a separate opinion rendered in the case after remand.81 "While pretty good privacy may be alright for encryption, it is insufficient to achieve 'pretty good accuracy' in the publication of a court opinion."82

Bills have been unsuccessfully introduced in Congress to require the acceptance of public domain citations. In 1992, Representative Barney Frank (D-MA) introduced H.R. 4426, which would have denied copyright protection to names and numbers used to identify judicial opinions and statutes.83 The bill's supporters cited public policy concerns, contending that bill would result in inexpensive access to legal materials, but its opponents asserted that, in the long run, this could diminish the incentive of private publishers to produce compilations of legal materials, particularly materials with limited markets.84 A hearing was held on the bill on May 14, 1992 but it did not emerge from the Judiciary Committee. In 1995, Frank introduced H.R. 1822,85 which would have prohibited federal and state courts from requiring the use of copyrighted citations in court documents if alternatives exist.86 Although a more moderate approach to reducing West's market advantage, this bill also failed to emerge from committee.87

Inherent Problems of a Uniform Citation System

Not surprisingly, one of the strongest opponents of a public domain system of legal citation has been West.89 West has made additional arguments against adopting a uniform citation system such as: (5) designing a new citation system would be a waste of taxpayer dollars;90 (6) West has been providing uniform access to case law for over 100 years;91 (7) the current citation system works well and is familiar to all legal researchers;92 (8) free access to court opinions is available to the public at law libraries;93 (9) a public domain system would result in less product innovation from the private sector, ultimately hurting the consumer;94 (10) sufficient competition already exists in legal publishing;95 and (11) the change will create the possibility of government censorship.96

Some opposition arguments have resonance - the process of assigning opinions paragraph numbers could be a burden on the courts, as likewise would be the conversion of old case law necessary to create a truly uniform citation system.97 Indeed, publishers other than West have expressed concern about the costs of such an endeavor.98 But some, such as West's argument that controversial cases could be removed from case law databases or from the citation process by extremists in Congress99 seem implausible at best, as well as ironic given that West's misconduct has created just as if not more valid a concern that West might edit opinions unfavorable to itself out of its reporters.100 While a uniform citation system should not be adopted without due consideration of the inherent problems that do exist in such a system, most of the depictions of these problems have made bogeymen out of stumbling blocks.

For example, in regard to finding cases, in an electronic age, locational citations are not inherent. While it is true that a universal citation system does not refer to an actual, physical source - what West calls a "nowhere cite" - this does not mean that users will not know where to look for it, nor will not be clear which source an author used.101 The currently proposed system imagines the courts being the official repositories, a task made easy by he use of word processors and other relatively new technology; the definitive version of a case would originate from a court archive, to which all would have access. To create a different version, a provider would have to actively alter the opinion.102 Even critics of reform have said that if a competitive market did develop the inability of a uniform citation system to point a reader to a specific source would not be objectionable.103 And, in fact, even in states such as Arkansas and Washington - which still have official reporters and, therefore, non-proprietary citation systems - CD-ROM publishers are flourishing, and sole practitioners and small law firms are enjoying easier and less expensive access to case law than ever before.104

Furthermore, there is no inherent reason why information cannot reside in multiple locations; the challenge simply is to establish accuracy and authenticity. In the end, it will be up to those publishing legal decisions to provide the finding aids to assist in locating decisions based upon the inherent citation information.105 That an appropriate source would be difficult to locate with the proposed citation system is not a fault of the citation form but rather of the current use of volume numbers that only signify how many volumes of a print reporter a publisher has released. The publishers could at least mitigate this problem by translation tables - as West provides tables today, for translating citation forms from those jurisdictions with official reporters to West's National Reporter System.106 James Love, director of TAP as well as the Consumer Project on Technology (CPT) notes that "Congress numbers its own records, as do many other agencies. Why can't the courts? They're public documents."107

In regard to the costs of conversion, a public domain system of legal citation offers benefits for the public in the form of better and cheaper access to legal information. It is very expensive to buy high priced services like Westlaw, and a public domain citation would promote competition; the public likely would save even if the judiciary was required to invest additional time into drafting opinions and maintaining repositories of them.108 Law libraries may not be a reasonable alternative; simply stated, there is a cost in traveling to law libraries, particularly if there isn't one close by, or one with unrestricted access, and even if there is time is still a premium.109 Further, the federal judiciary and indeed all branches of government are large consumers of legal information. The prices they pay for these services also would be much less if the courts did a better job of disseminating court opinions.110 Public archives need not provide a sophisticated search engine, leaving such value-added services to companies like West.111

In regard to West's historical performance and the reliability of the current citation system, even if the current system is not broken yet, it soon will be. Because printed reporters are the official cites, the electronic versions of a case have no official cite until the reporter is published, weeks or months later.112 Already, only about 70% of decided cases are ever published in print.113 Furthermore, the increasing number of parallel cites required not just by technology but the proliferation of reporters is cumbersome; even to the extent that competition exists, it is not a panacea.114 In contrast, nothing about the new system is very cumbersome - the learning curve for the new style of citation is not steep.115 As noted above, here would be costs involved, such as the courts maintaining authoritative archives. But many already have begun to do so.116

In regard to concerns that law would be "Balkanized," public domain systems of legal citation are already in common use, both in law and in other fields, and the format of such systems has been generally consistent. For two centuries, for example, there has been a widespread public domain citation system of legal citation: the citation systems for United States Supreme Court decisions and federal statutes. The federal government publishes relatively inexpensive public domain versions of those authorities (United States Reports and United States Code); nevertheless, lawyers purchase comparatively expensive private-sector versions available from Lawyers Cooperative and West.117 Furthermore, the use of paragraph numbering is a well-established citation technique. Paragraph numbering is used by lawyers to identify the text in court pleadings; appeals court judges often number the paragraphs of draft opinions, which go through several revisions.118 Paragraph citation is used in references to the Bible, allowing great precision in citing chapter and verse, yet distinctive annotations.119 The citation forms used in print reporters, in contrast, are products of nineteenth-century technology and ways of thinking; pages do not exist in cyberspace. The nearest analogy between the Internet and other forms of information dissemination are pre-printing press era scrolls.120 Citations to scrolls took a simple form: the number of the scroll and the paragraph number of the material being cited.121

In regard to innovation, the current system in fact can be stifling. West initially resisted the creation of electronic databases. West did not introduce Westlaw until two years after the launch of Lexis-Nexis, and throughout the 1970s the online system was plagued with deficiencies such as prolonged search times and frequent interruptions.122 Further, West's inertia bleeds over into the courts. Love asserts that "West has a lot of judges on its side. They've convinced them that numbering their own court opinions will create too much work for them."123 But the paper-based legal publishing market is shrinking. The risk for West, some commentators say, is for West not to so recognize and change; like the last manufacturer of the buggy whip, the quickest way to go out of business is to have an increasing share of a decreasing market.124

In regard to competition, the outcome of a uniform citation system would likely not be confusion but rather the denial to West of its current broad advantage over any publisher at issuing, compiling, reformatting, and enhancing decisions for a profit.125 The market did indeed anoint West as the favored resource for case law. Courts and the "Bluebook" followed suit. But these requirements, together with West's assertion of copyright in its reporter pagination, have skewed any "natural" market response to new citation forms.126 If a market is to provide access to court opinions cheaply and easily to the public and attorneys, it should not set limits as to which format or version to cite.127 In Louisiana, since the adoption of a public domain system, competition has increased, with new products such as CD-ROMs.128

In regard to censorship, one of the advantages (as well as disadvantages) of the Internet is that information cannot be so easily controlled as under a monopoly. Recently, New York lawyer Eugene R. Anderson launched a "vacatur center" on the web site of his firm, Anderson Kill & Olick, featuring "disappearing judgments" that have been in effect erased from law books and online services. Unfavorable rulings are frequently erased, Anderson charges, by generous settlements and the routine agreement of judges to vacate decisions. Even if judges continue to do so, however, the Internet will now provides a means by which to prevent such decisions from being forgotten, even if they will no longer be good law.129

An additional concern, raised by academics rather than businesses, however, is how a uniform citation system would influence legal thought. Professor Donald Dunn, law librarian at Western New England College School of Law, claims that citing to paragraphs could cause lawyers to lose their legal reasoning abilities: "It takes greater analysis to find the court's ruling in the traditional reporters."130 Alternatively, if propositions in cases were cited by paragraph rather than by page number, the individual paragraph would take on a whole new importance in relation to the rest of the case; if authors knew that their work would be cited by paragraph number, they would write so that no one paragraph could be construed as being any more important than another.131 Proponents counter that paragraphs are natural units of thought, and that it is more accurate to cite to a paragraph or series of paragraphs that contain a thought than to a page or pages; greater accuracy in the citation of case law would increase, rather than decrease, legal reasoning ability.132 One would expect, proponents add, that attorneys would continue to analyze cases in their entirety when they cite to individual paragraphs, rather than merely matching smaller units of thought to the particular situation at hand.133

West Publishing and a Uniform Citation System

West, however, seems to have adopted the worst possible course for both itself and the public: it has not spoken with one consistent voice.138 West has stated that it supports an open rule, allowing the citation of any reliable source, and that the best medium neutral and vendor neutral citation is the docket number. West further has stated that it has "no objection to the exploration or suggestion of such schemes as alternative, but [opposes] exclusive citation forms."139 Donna Bergsgaard, speaking as the manager of West's national reporter system, has said that even if a uniform citation system was adopted, her company "will be competitive, no matter what happens to citations";140 lawyers will continue to rely on sources of case law that are corrected, updated and augmented with elements like headnotes that summarize the case.141

But West has also bitterly opposed even hints at the adoption of a uniform citation system. Following an announcement by Attorney General Janet Reno on September 14, 1994 that the DOJ would explore ways to improve public access to legal information, including the development of a non-proprietary system of citation and a public domain database of federal and state judicial opinions, Dwight Opperman, Chairman of West, sent out 6000 "Dear Fellow West Publishing Employee/Retiree" letters, asking them to write letters opposing the plan.142 West also lobbied Congress intensely; one Senate staff member said that lobbyists claimed that a public domain system of legal citation would destroy West, and allow the Japanese to take over the legal publishing market.143 West also opposed Wisconsin adopting a public domain system of citation.144 Donna Bergsgaard here argued that in the first year such a system would impose costs of $195,000 on the state, and $155,000 for each subsequent year.145 She also suggested that numbering by the courts would rush opinions into publication, or confuse slip opinions and final opinions, and discourage creative compilations.146

Again, some of the issues raised by West are legitimate. But the arguments it has put forward are rife with contradictions, and at times cross over into the realm of paranoia. "They are going to outlaw the West citation system because it is too accurate, too reliable and too efficient," Opperman has said.147 He further has claimed that "[a]ny system that a court finds is reasonable, accurate or reliable ought to be allowed."148 But the current proposals would not prohibit West cites - and indeed would require the courts to accept a wider variety of styles of citation than they do today.

TAP noted that it had no comment on "West's dire predictions of the impact of a 'campaign to nationalize legal information,' since the idea of nationalizing something as public as the law seems baffling."149 The market is not the best means to establish a system of citation:

[T]he citation system is inherently monopolistic. If every publisher used its own citation system, everyone would have to subscribe to every publisher's products to locate case law. . . . A single authoritative citation has many obvious advantages, and in the absence of a public domain system of citations, whichever firm has the dominate market share will become the de facto standard.150

Indeed, West is likely to endure, and even prosper, under a public domain system of legal citation. West provides an important filter to correct errors and verify content. Cases, as well as other legal materials, are typically are rich with source cites and that have been checked for continued validity. If uniform citation system emerges, there may will be an explosion of inexpensive legal materials; some might be "Joe's Law Buks," filled with spelling and citation errors.152 In such an environment, West would be a reassuring safe harbor.

At the same time, a uniform citation system "would level the playing field, so people can compete on a value-added basis," says Cleveland Thornton, a Washington, D.C.-based sole practitioner. Many lawyers work with limited resources, especially the small firms and sole practitioners who provide more than half of legal services.153 "I can see a market developing for high-end and low-end" court documents, similarly comments Charles R. Merrill, a partner at Newark's McCarter & English, and chair of the firm's computer and high-technology law practice group. "[T]here might be people who want more than what they can read in the newspapers" but who wouldn't mind the spelling and citation errors that West corrects before publication.154

An interesting overall contrast to West is provided by the position of Lexis-Nexis, long West's only licensee, on the desirability of a uniform citation system; Lexis-Nexis is on record as supporting a public domain system of legal citation. No doubt Lexis-Nexis would profit from no longer needing to pay license fees from West, but it would also have to make a substantial investment in updating its databases and, lacking many of West's value-added features, would be more vulnerable to competition. Nevertheless, in 1989 Lexis-Nexis told the Judicial Improvements Committee of the Judicial Conference of the United States that "[i]t is important for the future of legal publishing that permanent, unique identifying numbers be given to cases as they are decided by the courts."155 A uniform citation system would, for example, Lexis-Nexis asserted, assist judges and court staff in performing their tasks because it would provide a means of initially, rather than post hoc, identifying opinions issued by the courts.156

West may be beginning to realize what its new role should be. West initially allowed the issue to be framed by its competitors and, when given opportunities to redeem itself in the court of public opinion, took a damn-the-public-opinion,-full-speed-ahead approach, defending its copyright and refusing to license.157 But since its recent acquisition by Thomson, a Toronto-based publishing giant, West has agreed to license citations to its competitors, for fees which scale up to 9 cents per 1000 characters per opinion, per year.158 After West issued a license to Juris for its Black Lung Reporter, Juris President Chuck Kitzen reportedly said that he was surprised at how affordable the West license was.159 But this is only a first step; the licenses are worth a great deal to West, and were all but imposed on West as a condition of its merger by the DOJ.160 CPT calculates that the present value of a license to cite a single year of federal opinions is approximately $500,000 - a high price to pay to simply avoid numbering opinions and paragraphs.161 Further, commentators have suggetsed that West licenses in practice may not be available to vendors who make court opinions available on the Internet, in part because end users must sign licenses whose format is approved by West.162 West also appears to be unsure at what pace change will occur (although in this it is by no means alone): Brady C. Williamson, a partner with LaFollette & Sinykin of Madison, Wisconsin, stated that West has no objection to a generic form of citation, as long as it directs researchers to an established citation also, as "[i]t could be a year, it could be 10 years" before electronic publications become so common that parallel citations are no longer necessary.163

Conclusion

It may be true that the United States has the best legal information system in the world, so we should be wary of change.165 But the current state of legal citation ignores the effects of the new electronic era.166 Change must occur.167 There are unknown quantities to any public domain system of legal citation. For example, if courts are to assume the responsibility for being the definitive source of case law, issues such as in what format they will provide the decisions, and what data search and manipulation capabilities they will provide, must be addressed.168 But the merits of a uniform citation system have been subjected to inertia and even outright scare-mongering. Franz Kafka wrote that "the Law . . . should be accessible to every man and at all times."169 Its citation system should not hinder this goal, unless in so doing the adjudication process would be compromised. In the beginning, West's system was crucial for the dissemination of the law. But that long ago ceased to be the case, even before the dawn of the Internet and the World Wide Web.

New technologies now provide an opportunity to break the cycle of dependence. West, like King Canute, cannot stop the tides; court opinions are quickly finding their way onto the Internet and CD-ROMs.170 It seems inevitable that the print medium will cease to be the dominant medium for legal research. A new uniform citation system, vendor and medium neutral, would serve both mediums. But its success ultimately depends on the courts; not only would they have to assume a new duty, being the authoritative source for case law, but their acceptance of public domain citations is requisite for them to flourish. To date, the crucial actors have been entrepreneurs, like HyperLaw and the Wisconsin Bar. But now a crossroads has been reached, in the form of the Judicial Conference. Perhaps the best call to arms was provided by Love: "Now the ABA, the American Association of Law Libraries, the American Association of Legal Publishers, several state bar associations, TAP, and most independent experts agree - paragraph number plus a sequential number for opinions is the format for a new public domain citation system. We know what needs to be done. Now lets do it."171