Internet Materials in Opinions: Citations and Hyperlinking

From The Third Branch

July 2009, Vol. 41, Number 7, p. 9

 

Internet Materials in Opinions: Citations and Hyperlinking

The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period.

The Internet often seems to pervade everyday life, giving us answers, matches, recommendations, definitions, and citations. But the information on the Internet can be as ephemeral as yesterday’s blog entry. Websites can change or disappear altogether.

“Judges are citing to and using Internet-based information in their opinions with increasing frequency,” Judicial Conference Secretary Jim Duff wrote recently to chief judges. “Unlike printed authority, Internet information is often not maintained at a permanent location, and a cited webpage can be changed or deleted at any time. Obviously, this has significant implications for the reliability of citations in court opinions.”

The Judicial Conference Committee on Court Administration and Case Management (CACM) began the pilot project, conducted by circuit libraries, and received and endorsed the recommendations of an ad hoc working group of circuit librarians. In approving those recommendations in March 2009, the Judicial Conference agreed that all Internet materials cited in final opinions be considered for preservation, while each judge should retain the discretion to decide whether the specific cited resource should be captured and preserved. The Conference directed the Administrative Office to work with the CACM Committee to develop guidelines “to assist judges in making the determination of which citations to preserve.”

The guidelines suggest that, if a webpage is cited, chambers staff preserve the citation by downloading a copy of the site’s page and filing it as an attachment to the judicial opinion in the Judiciary’s Case Management/Electronic Case Files System. The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system. When considering whether to cite Internet sources, judges are reminded that some litigants, particularly pro se litigants, may not have access to a computer.

The Judicial Conference also recommended that the Judiciary avoid including in final opinions working hyperlinks that lead directly to materials contained within commercial vendor databases to prevent a stated or implied endorsement or preferential treatment. To the extent that a court determines that such hyperlinks are to be used in opinions, it is recommended that an appropriate disclaimer be provided.

A Brief History of Opinion Writing (the book)

There’s a new book that all law clerks and law clerk wannabees might want to read.  It is:  Opinion Writing, 2d edition by Judge  Ruggero J. Aldisert.

Ordering information can be found here.

West Publishing Co. commissioned Judge Aldisert (Chief Judge Emeritus, Senior U.S. Circuit Judge, U.S. Court of Appeals for the 3d Circuit) to write the book.  It was never sold but utilized by West as a public relations gesture. Despite never being made commercially available, there are 144 libraries in WorldCat that hold copies.  West sent the book to  all federal judges and to state appellate judges, and as new judges came on later each new judge received a copy.  This practice continued for over 15 years, but after West was bought by Thomson, the new owners decided a few years back to stop the practice.  Rights were transferred back to the judge and the second edition is being published by AuthorHouse.

Full disclosure:  My daughter clerked for Judge Aldisert and assisted with the production of the book.  So I know it’s really good!

From the publishers description:

This book is a guide to opinion writing. It is written for every judge at every level and for all law clerks. Every trial and appellate judge, including the author of this book, can profit by learning how to improve his or her work product. This book provides a tool to do just that. Separated into four parts – Theoretical Concepts Underlying an Opinion, The Anatomy of an Opinion, Writing Style and Opinion Writing Checklists – the second edition of Opinion Writing distills the author’s nearly 50 years of experience on the bench into a handbook on the judge’s craft.

And the price is right too:

Hard Cover: $29.95
Paperback: $19.95

Writing the book on citing unpublished and non-precedential opinions

Today’s mail brought Volume 10, Issue # 1 (Spring 2009) of The Journal of Appellate Practice and Procedure.  This issue contains Professor David R. Cleveland’s book-length (116 pages) article “Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions.”

The Foreword to the issue notes that “Professor Cleveland’s article about Rule 32.1 follows both Judge Arnold’s famous comment about unpublished opinions, which ran in our second issue, and the series of Anastasoff-related articles that appeared in our Volume 3, Issue 1.”

Professor’s Cleveland first posted this piece to the Legal Scholarship Network as a working paper, which can be found here, with this abstract:

In the mid-1970s, the federal judiciary fundamentally changed the nature of precedent in the United States federal courts. It did so quickly and quietly: first, by issuing decisions as unpublished and not citeable, and then, by denying these decisions precedential status. Every opinion issued in this fashion deprives the law of a valuable precedent and ignores common legal conceptions of how our law works. While the recently enacted Federal Rule of Appellate Procedure 32.1 restores the ability to cite to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. This Article advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. Publication limits and citation bans have fallen away in light of modern technology and jurisprudential concerns. The related practice of issuing non-precedential opinions should likewise be ended. The practice is outdated at best and constitutionally infirm at worst. Moreover, it flies in the face of American legal and lay concepts of how our justice system works. Quite simply, the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them.

The article’s table of contents shows the wide range of coverage Professor Cleveland gives to his topic:

I. Background

II. Introduction

III. History of Publication and Precedent

   A. Ancient Publication and Precedent

   B. Early English Publication and Precedent

   C. Modern English Publication and Precedent

   D. Early American Publication and Precedent

IV. Modern American Publication and Precedent

   A. Comprehensive Publication and the Concern It Engenders

   B. The Birth of Limited Publication Plans

   C. Recent Technological Developments in Publication

   D. Citation and Precedent in the Federal Courts of Appeals Prior to Rule 32.1

   E. Rule 32.1

V. The Debate Over Precedential Status of Unpublished Decisions

   A. Criticisms of the Premises of Limited Publication, Citation and Precedent

   B. Premises Supporting the Prevention of Comprehensive Publication

   C. Premises Supporting a Bar on Citation to Unpublished Decisions

   D. Premises Supporting the Denial of Precedential Status to Unpublished Decisions

VI. Current Status of the Article III Debate

   A. Equal Protection

   B. Due Process

   C. Pragmatic Objections to Precedential and Proposed Solutions

VII. Conclusion

And here’s the conclusion:

     Whether by constitutional case decision or by the adoption of a new Federal Rule of Appellate Procedure, the practice of issuing non-precedential opinions should be ended.  Failure to recognize every decision as precedential represents and perpetuates a serious problem in our judicial system because the practice conflicts with both our constitutional and community values.

     Evidence suggests that unpublished opinions are already published.  They have long been researched despite the rules against their citation, and they are now fully citeable under Rule 32.1.  Unpublished decisions are already being published, researched, and cited because they are perceived to have precedential value within our legal system.  This value should be recognized rather than denied.

     The Supreme Court has aptly cautioned in another content that ‘[l]iberty finds no refuge in a jurisprudence of doubt.” [footnote omitted]  Yet  for over three decades, the federal courts’ policy of creating “non-precedential precedents” [footnote omitted] has increasingly fostered a jurisprudence of doubt.  After three decades of limiting the publication, citation, and precedential effect of their opinions, federal courts are still carefully avoiding the “morass of jurisprudence” [footnote omitted] involved in closely examining the precedential status of unpublished opinions.  However, the winds have changed.

     The limitation of publication now exists in name only.  The limitation of citation has been removed by Rule 32.1.  The limitation on full precedential status for all decisions of the federal courts of appeals, initially instituted to help realizer the gains believed to flow from the other two limitations, is the last remaining vestige of a flawed and failed experiment.  The practice of deciding ex ante which cases join the body of precedent and while do not should be abandoned.  Both the dictates of American constitutional law and the traditions of the American legal community require it.

 

A related article by Professor Cleveland, “Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System,” was noted here.

Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

From Journal of Empirical Legal Studies, Vol. 6, No. 1, March 2009, pp. 213-39

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

Denise M. Keele, Robert W. Malmsheimer, Donald W. Floyd, Lianjun Zhang


Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges’ decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.

Court-System Transparency

Here’s a new law review article of note:

Lynn M. LoPucki, “Court-System Transparency,” 94 Iowa Law Review 481-538 (February 2009).

ABSTRACT: Over the past decade, the federal courts became the world’s most transparent court system by switching from paper to electronic filing, resolving daunting privacy problems, and posting their case files on the Internet. Now they are embarking on a second, equally important transformation–the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. Policymakers, litigants, and the public would be able to see and understand the patterns of judicial decisionmaking–who wins what and how often. That would provide policy makers the feedback needed to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. All could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court-record transparency (1) would expose parties and witnesses to the risk of identity theft and other harms, (2) would invade privacy by making previously-difficult-to-obtain public-record information about individuals readily available, and (3) would pressure judges in ways that deprive them of judicial independence. This Article argues that none of those objections is well-founded.

Wikipedian Justice

“Wikipedian Justice”

RAGHAV SHARMA, National Law University, Jodhpur

This short article highlights the increasing reliance by Indian courts on Wikipedia. The Supreme Court seems to have accepted Wikipedia as a reliable source of information. The article discusses how far such judicial reliance is warranted on Wikipedia.

Source: LSN Law & Courts Vol. 3 No. 21,  03/10/2009

“Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum”

 

Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum

JOSH BLACKMAN, George Mason University – School of Law

From the birth of our Republic, starting with Chief Justice Marshall in Cohens v. Virginia, judges and scholars alike have grappled with the distinction between holding and dictum. However, neither the judiciary nor the academy has been able to come up with a consistent and workable definition of these two concepts. This article attempts to shine some light on this perplexing issue.

This article proceeds as follows. In Part I, I will discuss some of the simpler, yet unsatisfying definitions of dictum, and introduce some of the easy cases, where distinguishing dictum from holding is relatively straightforward. Next, I will chronicle the Supreme Court’s erratic approach to dealing with dictum, and show how this uncertainty has left a gaping void in our jurisprudence. Next, I will discuss prior scholarly attempts to define dictum, and show why their approaches are inadequate, as they only focus on Supreme Court cases, and ignore how the inferior courts treat the distinction.

In Part II, I will confront the task where others have not ventured, and systematically survey and analyze over four hundred court cases that distinguish between dictum and holding. After explaining my methodology and framework, I will attempt to answer three critical questions. First, what is dicta worth? Second, whose dicta must/should/can courts follow? Third, how do courts define dicta? These three questions reveal clues to understanding how courts have treated dictum, and what the distinction means in practice.

In Part III, I will analyze the results from Part II. Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before. Next, I analyze precedent, stare decisis, and dictum through the lenses two jurisprudential schools, legal formalism and realism. I conclude with a legal realist argument, that the distinction between dicta and holding is inextricably linked with a judge’s views on precedent.

Source: LSN Law & Rhetoric Vol. 2 No. 1,  01/06/2009

The Curious Appellate Judge: Ethical Limits on Independent Research

“The Curious Appellate Judge: Ethical Limits on Independent Research”

 ELIZABETH G. THORNBURG, Southern Methodist School of Law

Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal – involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has turned a once-marginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer fail comprehensively and rigorously to engage this question, because it is now taking on a central importance to proper judicial decision-making in an increasing number of cases. The stakes are high. Whether and when judges independently may research cuts to the very heart of our adversary system of justice: these questions implicate directly the ethical role of the judge, the balance between fairness and efficiency, the rights of the parties, and how we view the rule of law. This article therefore argues that states should reject the current proposal and adopt instead a rule that provides clear guidance to judges, notice to litigants, and transparency to the judicial system.

 

Source: LSN Law & Courts Vol. 2 No. 61,  10/28/2008