Will There Be a Better Time for Promoting Adoption of Universal Citation in the US?

While I will stand by my general premise that there is a professional divide between the documentation and law librarian communites that needs to be bridged, there are times when both are on the same page. Both oftentimes see the future clearly but can be too far ahead of the curve that practitioners and other stakeholders will not understand the importance of adopting their recommendations until much later and then sometimes only if the matter is resurrected.

Case in point, a format neutral, public domain citation standard. The Universal Citation Guide has been around for a very long time now. Published by the AALL Citation Formats Committee in 1999 with a second editon published in 2004, this Guide's citation recommendations have been endorsed by AALL, the ABA and formally adopted in several states. However, the timing of this effort was an instance where the pack was not yet ready to follow the leaders in terms of widespread adoption. Consequently, many law libraries probably have a copy of Universal Citation Guide, 2d (Hein, 2004) collecting dust on their reference shelves right now.

Universal Citation is Ripe for Implementation. A lot has happened in the 15-plus years since events prompting the conception and execution of this project by AALL. West lost its attempt to copyright pagination. That ironically probably put a damper on the univeral citation movement. But electronic distribution of primary legal resouces by federal and state web distinations is substantially more prevalent now. The issue is ripening. That means it is time to revisit the matter.

Universal Citation Meeting on July 25th. The aim of UniversalCitation.Org is "to provide the organizational infrastructure needed to facilitate the adoption and use of a uniform set of media and vendor neutral citations that can be used for all American court decisions." UniversalCitation.org will be conducting a meeting at Rutgers University School of Law, Camden on July 25, 2011 to discuss plans for implementation. Yes, this meeting is taking place during AALL 2011's annual meeting but it is off-site and the organization makes clear that its efforts and meeting are not in any way sponsored or affiliated with our professional association. Seems odd since this effort originated inside AALL. Ah well, a fair number of law librarians and vendors (like LexisNexis and Fastcase but not TR Legal) and other stakeholders (like CALI, including its new Director of Content Development, and Justia) are planning to attend.

Ahead of the meeting, Peter Martin, Jane M.G. Foster Professor of Law, Emeritus, Cornell Law School, posted his personal proposals on this issue. Quoting from A Proposed Course of Action for universalcitation.org or Some Alternative Non-Commercial Entity  (June 17, 2011):

It is 2011 not the mid-nineties. The environment has changed since the ABA and AALL first came out for public domain citation in ways that: 1) increase the importance of widespread (let us say “universal”) adoption of public domain, medium neutral citation, 2) call for more than exhortation and persuasion directed at jurisdictions that have not yet taken the plunge, and 3) make uniformity of approach across US jurisdictions an unlikely, even an undesirable near term goal.

Background. The history of the universal citations movement in the US is well documented. For starters, see AALL Citation Formats Committee's The Universal Legal Citation Project: A Draft User Guide to the AALL Universal Case Citation, 89 Law Libr. J. 7 (1997) if you can find it on AALL's website since the LLJ archives doesn't go back that far. Peter Martin's historical review, Neutral Citation, Court Web Sites, and Access to Authoritative Case Law , 99 Law Lib. J. 329 (2007) is available. Ian Gallagher's Cite Unseen: How Neutral Citation And America's Law Schools Can Cure Our Strange Devotion To Bibliographical Orthodoxy And The Constriction Of Open And Equal Access To The Law (2007) also is highly recommended. Quoting from Gallagher:

West was vociferous in its opposition to neutral citation format, perhaps because it correctly identified citation as one of the most important impediments to the development of an alternative to West-based legal information. West had two members on the AALL Task Force on Neutral Citation Formats who combined on a dissent to the Task Force’s recommendations that neutral citation formats should be adopted. In addition to their disparagement of neutral citation as the “nowhere” citation format, the West-employed task force members raised numerous objections to the adoption of neutral citation formats, among them their contentions that:

• “uniformity need not be achieved through government intervention;”
• neutral citation “promotes lack of uniformity;”
• neutral citation is “impractical when applied to regional reporters;”
• the AALL task force failed to consider a “needs assessment from the bench and bar perspective;”
• neutral citation would require “radical and costly changes in judicial administration in many states;”
• neutral citation is “unworkable for locating cases in looseleaf topical reporting services, legal newspapers, and many other compilations;”
• neutral citation “does not eliminate the need for parallel citations;”
• and “paragraph numbering raises numerous questions that still require answers.”

Unfortunately some of our younger law library community members may not be as aware as we aging and decrepit Boomer law librarians are of the long and winding road leading to the upcoming meeting.

Now quoting from Martin's recent personal proposed course of action:

I propose that universalcitation.org or some other non-commercial entity embrace and seek funding together with in-kind assistance from interested commercial parties that will enable pursuit of the following aims and actions:

• Encourage US courts to adopt public domain citation through diverse means (e.g., highlighting best practices and options illustrated by jurisdictions that have implemented public domain citation, offering consulting services to jurisdictions contemplating public domain citation, putting in place a system of public domain citation that courts can simply adopt).
• Affirm rather than criticize, modify, or adjust jurisdictionally adopted public domain citation schemes no matter how far they deviate from the AALL model (in other words, accept that institutional factors including embedded practice, which in some jurisdictions has been in place for over a decade, make “uniformity” less important than “universality”).
• Apply a basic system of public domain citation to citable appellate decisions in jurisdictions that have not yet implemented one of their own.
• To the extent possible engage or assist in the retrospective application of public domain citation in some or all US jurisdictions.
• Create and maintain an online citation server that will:
  • Employ public domain citation in enabling users to access individual decisions on any of the major free and fee case law databases, and among commercial services privileging those that have cooperated in building and maintaining this public domain system.
  • Allow authors of electronically filed briefs and online commentary to link to cited case authority without limiting the reader to a specific database.

Well, Martin's educational and advocacy proposals may do the trick, particularly his "uniformity” [is] less important than “universality" proposition for promoting public domain citation. However, I tend to get worried about the long-term viability and stable financing for an online citation server unless grant money can be obtained to dovetail this effort into Cornell's LII, assuming Cornell is interested and willing to take on the task. We don't need another eLaw silo when we have something like the Cornell LII in place.

Commercial Vendors Can Lead the Way to Adoption of Universal Citation. Being the "capitalist pig" I am, I believe there is another way to take a quicker first step for executing normative universal citation practices enacted before an open access server can be in place. I'm thinking that the first realistic executable step in the right direction is if a major vendor were to implement universal citations in its databases. Since the current list of attendees for the July 25th meeting in Camden does not list a TR Legal representative -- not even one going for "competitive intelligence" purposes -- I doubt that company's executives will do anything more then maintain its collective delusion that nothing is going to change, at least until the Shed West era of its print reporters makes the folks in the land of 10,000 wonder why the hell they continue manufactoring them. (Do note, once upon a time John West promoted reform of citation practices.)

Who then? I would suggest that Lexis is the most likely vendor that has nothing to lose by implementing universal citation practices in its databases and has the programming talent at hand to do so. [JH]