Our citations, ourselves: Changing with the times

And now I'm going to talk about everyone's favorite topic: What's the best shorthand way to refer to a case or statute in a written document?

But wait, you say. Didn't I learn this at the dawn of my legal career? Yes â?¦ it's coming back to me now. The first semester of my 1L year, I was texting with my buddies in our legal writing class while a hard-working adjunct professor was lecturing about the Bluebook: volume, reporter, first page of the opinion, court and year. And for the gunners, a pinpoint citation to the actual page where the good stuff is.

So why - in a column renowned for honing the bleeding edge of current legal writing controversies - why write about citation? It's one of the few things we all agree on.

Or is it?

Fasten your seat belts, readers, because it may not be for long. I recently attended a tech conference and heard Ed Walters, CEO of Fastcase, offer a five-minute glimpse into the future of legal citation. For those of us raised on books, it is an unnerving sight. Let me summarize the high points and walk you through the landscape.

I am a citation traditionalist. I have always considered West's citations a brilliant innovation of the analog world-a simple, elegant way to steer any literate reader to the precise words being used. Developed back when "computer" was still a human being's job description, these short sequences of numbers and letters let human beings find exactly what we needed in a paper book in a brick-and-mortar library. (Believe it or not, that's how I learned.) Any member of the public, lawyer or no, can go pull a book off the shelf and read the actual words of the law.

When the first proprietary electronic databases emerged, they preserved the legal fiction that opinions were organized chronologically into reporters and set forth on pages. The format for citing online opinions preserved the volume-reporter-page spine, even as its individual vertebrae became increasingly hypothetical. Because we still needed a way to identify exactly where the good stuff was, equally fictional pin cites were invented (e.g. 2001 WL 123456, at *1) even though there was neither a bound book nor a printed page.

Things got even more metaphysical (and the plain meaning of the long-suffering English language more abused) when the proprietary databases made so-called "unpublished" opinions widely available. Suddenly their subscribers could see London, France, and all the decisions the courts had not deemed fit to print. The ensuing debate over the precedential value of such decisions remains lively to this day.

Then came the "e." With the advent of electronic filing, courts posted their decisions directly to the web: no volume, no reporter, no subscription, no middleman. Standard citation forms that are not linked to any proprietary source. Power to the people, right? For a time, there was a movement to make hyperlinks the new citations-rightfully rejected, in my opinion, because hyperlinks are not only time-consuming to install and text, but also beg the question of what you link to. What if the court link is broken? How do you know it's the real thing? What if the reader doesn't have access to the source? And let's face it: hyperlinks are longer than sorrow and ugly as sin; they communicate nothing useful to a human reader about the value of the case. Secretly, I rejoiced when West's classic form triumphed over hyperlinks.

But hyperlinks themselves are quickly becoming a thing of the past, and we should all pay attention.

Let's assume essential ingredients of a case citation are the name of the case, the identity of the court, the date of the decision, and the precise location of the good stuff (or simply what, who, where, when, and why I should care). In a completely electronic world, why do we need volume, reporter, and page? When the courts are online, is there any need for an "official" reporter?

Maybe not. Ed Walters proposes a stripped-down universal citation form: Court + date + unique number (an arbitrary sequence of decisions decided on the same day, but sufficient to identify a particular case) + paragraph number (instead of page number). Like this:

Ciano v. Walters, Minn. Ct. App., November 1, 2017, 10, ¶ 3.

Hmmm. Virtues: extreme simplicity with almost no extraneous information (perhaps even simple enough that Bryan Garner would accept its presence in text rather than a footnote? But I digress). It is liberated from proprietary systems. The arguably outdated concepts of volume, page, and the concept of an "official" reporter are banished to the outer darkness.

Vices: it's unfamiliar and profoundly disruptive of the way that citation has been taught and understood sinceâ?¦ well, since there was such a thing as citation. During the presentation I found myself empathizing with whoever heard Edison's first pitch for electric lightsâ?¦ nice idea Tom, but I'll stick with my whale oil, thank you very much.

It'll be a tough sell in some quarters. I note that Ed's system proposes to let the plain meaning of the English language triumph and do away entirely with the published/unpublished distinction. The courts may not go quietly on this one; for a variety of reasons that I suspect have everything to do with them and nothing to do with us, they prefer having the option to issue a "lite" version of opinions. Speaking of the courts, there's another concern. If they're nervous about adopting a new citation form, they have complete power to resist. It's not hard to imagine a tsunami of local rules demanding particular citation forms, resulting not in a substitution but in a dual system. (I'm going to call it now, courts: that would be a steaming mess. Please, please don't.)

There's another problem. As already noted, volume and reporter are about as well established as chapter and verse. We're still using QWERTY keyboards not because they're best, but because they're familiar. How, exactly, are older dogs (i.e. everyone reading this column) going to learn this particular new trick?

Here's the good news: we may not have to. Ed proposes to develop software that can translate classic citations into the new form (and, let's hope, vice-versa). Generations of lawyers would not have to learn a new way of citing; they'd simply have to run software to translate their citations.

So with that in mind, I'm cautiously supportive. While it grinds my gears to think of citations wholly untethered from books, I can't muster a principled argument against the virtue of simplicity and access.

Published: Wed, Nov 08, 2017

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