Newspaper Articles

This collection of articles was published in the Detroit Legal News from 1995-1997. All were written in the infancy of the modern Internet, before the landscape surrounding Internet legal and business issues began to develop. Access to the Internet largely consisted of dial-up connections on a 14.4 kbs modem or slower. Both the technology and state of the law have evolved considerably since these were first published.

Tradition Works Against On-Line Legal Research

Originally published September 18, 1996

If no one owns the law, how come it's so hard to find on the Internet?

The first thing evident to anyone attempting to do legal research on the Internet is the shortage of published case law, statutes and regulations.

While recent federal and state court opinions and statutes are beginning to appear on line, the Internet is simply no match for traditional print-based legal reporters and electronic research services such as WESTLAW and LEXIS.

Perhaps the biggest obstacle to widespread availability of state and federal law on the Internet is that old law school nemesis, The Bluebook, A Uniform System of Citation.

Among the first things taught to aspiring attorneys in law school are legal research and the Bluebook form of citation. The Bluebook provides uniform rules and conventions for citing court opinions, statutes and legal publications. The citations provide a convenient way for readers to identify and locate the source of precedent, rules or information. Use of the Bluebook form of citation is mandatory in most state and federal courts.

At the heart of the Bluebook conventions are the identification and retrieval of publications based on physical characteristics of books: volume, page number and publication date.

However, in the digital world where information (including rulings and statutes) is disseminated electronically through bulletin boards, CD-ROMS and the Internet. volume and page numbers are of diminished importance.

Relevant material on-line is typically located through use of search engines and hyperlinks. Page numbers and volumes don't correspond to what is viewed on a computer screen. Opinions are available on-line weeks before they ever get to print.

In short, while the Bluebook works great for traditional print media, it is largely unsuitable for information stored and retrieved electronically.

Compounding the problem of a shortage of primary legal material available electronically is the proprietary (at least for the time being) nature of the pagination systems for many state and federal reporters.

For example, West Publishing Co., the publisher of the Federal Reports, Federal Supplement, Federal Rules Decisions and various compilations of state reporters. claims entitlement to copyright in its internal pagination systems. The pagination copyright was upheld by the 8th Circuit in West Publishing Co. v. Mead Data Central, 799 F.2d 1219 (8th Cir. 1986).

In that case, West sued Mead for incorporating West pagination in Mead's LEXIS legal research service. The court determined that West was entitled to copyright in the pagination because of the considerable "labor, talent and judgment" used in compiling the pagination system. The case was eventually settled when West granted Mead a license to use West's pagination in LEXIS case reports.

In light of the Mead decision. West will allow reference to the first page of West reported decisions but not "pinpoint" or "jump cites" to particular pages contained within a lengthy decision. West will presumably challenge electronic posting of cases containing all of the page numbers in the book version of an opinion.

Early this year, West entered into a $4.3 billion merger agreement with publishing conglomerate The Thomson Corporation. As part of a Department of Justice consent decree issued because of anti-trust concerns. the merged company will he required to license West reporter pagination openly for a capped fee.

Meanwhile, West's rights to pagination of its reporters is again being challenged by Matthew Bender and Hyperlaw, Inc., a developer of CD-ROM based legal publications.

Despite the impediments to widespread availability of primary legal resources on the Internet due to historical citation systems and claims to proprietary rights in printed case law and statutes, numerous efforts are under way to change the manner in which law is cited. These efforts, if successful, could lead to a proliferation of primary legal materials available via the Internet.

For example, last month, the ABA House of Delegates adopted a resolution recommending adoption of a new vendor-neutral national citation system. Specifically, the ABA has recommended:

• All jurisdictions adopt a system of citation equally effective for publications available in print, on CD-ROMS and other digital media and over networked systems such as the Internet.
• The system be based on sequential numbering system for each decision published during a given year.
• Paragraph numbering be adopted in lieu of page numbers.
• Case citations be based on the year, court identifier, decision number and where appropriate, the paragraph number where the reference appears.
• Until electronic citation becomes more widespread, parallel citation to traditional reporters.

The format of the citation under the ABA system for a 1997 criminal decision in the 6th circuit would be as follows: People v. Smith, 1997 6Cir 27, Par. 22, 35 F3d 245.

The decision would be the 27th decision issued by the Sixth Circuit in 1997. The paragraph reference would be used to identify a particular section within the opinion.

The ABA recommendation and similar initiatives are already generating considerable controversy. The Bluebook and West reporting format have been around for decades and are widely accepted throughout the profession. Moreover, while electronic legal research is gaining in popularity, research through traditional print-based publications is clearly the exception rather than the rule.

As a result, while the Internet and electronic media will continue to grow in popularity as research tools, don't plan on abandoning traditional research systems any time soon.