Brief citation 101

My post from yesterday about the incomplete and confusing (to me anyway) citations in numbered paragraph 3 of the Attorney General’s letter “Re: Physician Hospitals of America v. Sebelius, No. 11-40631 is, by far, our most-read posting on this blog.  Now that the mystery about the cites has been solved (they are in fact citations to Solicitor General briefs and we now have copies of all four of them, copies supplied to us by the Department of Justice), I’ve taken down the post to prevent my confusion from spreading to others.   But for our readers who might be new to legal research and legal citation, let me offer a few definitions from one of my most favorite reference books, Fox, Elyse H. The Legal Research Dictionary: From Advance Sheets to Pocket Parts. 2nd ed. [Chapel Hill, N.C.]: Legal Information Services, 2006.

First, brief. 

A document submitted to the court by a party to the litigation to persuade the court to accept a legal proposition advanced by that party.  Briefs include a statement of jurisdiction, a summary of the case (2), history of the proceedings, statement of facts, a summary of the legal issues presented, summary of argument, argument, the relief requested, conclusion, and table of authorities. . . . An amicus brief is a brief submitted to the court by a non-party to the litigation. . . .

Next, citation and citation manual

A reference that unambiguously identifies the location of a specific opinion, statute, rule, law review article, or other type of legal publication. . . . Appropriate citation consists of the name or title of the source . . . Citation guidebooks dictate proper form.  Citations use standard formats to for identifying authority to lead the legal researcher to the source material quickly and accurately.  Citation format generally applies to all types of legal writing.  Also called cite.  See also citation manual, parallel citation, medium-neutral citation.

citation manual

A manual or guidebook that prescribes the standard form of citation to be used in citing authorities in legal writing.  Various citation manuals exist: probably the most widely used manual is A Uniform System of Citation (the Blue Book). . . .

So now, turning to the so-called bluebook, let us take a look at how it says briefs should be cited:

Rule 10.8.3 (p. 106):

In general, all court filings follow the same general form.  The full name of the document, as it appears on the filing, must come first, . . . followed by a pinpoint citation, if any.  . . .

. . .

Always include the docket number, whether parenthetically (when there is a reported citation) or as the citation (when there is no reported citation):

> Brief of Petitioner-Appellant at 48, United States v. Al-Marri, No. 03-3674 (7th Cir. Nov. 12, 2003).

. . .

Shepardizing Science: Is an Article Fact or Fiction?

Ken Strutin, director of legal information services at the New York State Defenders Association, has an article in the September 27th issue of the New York Law Journal, “Shepardizing Science: Is an Article Fact of Fiction?,” calling for a need to create “forensic bibliometrics” tools, similar to law citators.

The author points out that “In the scientific publishing lexicon, three levels of caution, which resemble Shepard’s signals, are the most salient: Retraction, Expression of Concern and Correction.”

From the article:

   It was Frank Shepard’s methology that paved the way for Eugene Garfield’s creation of the Science Citation Index (SCI), and ultimately, the page ranking protocols used by Internet search engines. [footnote omitted]  Most legal opinions can be Shepardized, and along with a full court press of bibliometric analysis in multiple sources, this tool can provide a high level of quality assurance.  The same is not easily accomplished in the scientific disciplines.

   Aside from the tools already noted, quality control of scholarly literature would benefit from something resembling a Shepard’s for scientific research.  It would be a universal mechanism that flags retracted articles in peer review journals and treatises, in all formats and at all access points, clearing indicating which ones should not be cited or relied upon.

The article clearly sets out the reasons why “. . . an expert in the citation analysis of scientific literature can play a crucial role in litigation.”

Mitra Sharafi’s South Asian Legal History Resources

Professor Sharafi’s Web on South Asian Legal History site includes a list of citation abbreviations of  law reports from the colonial era for Bangladesh, Burma (Myanmar), India, Pakistan and Sri Lanka.  It also includes a useful “Research Guide to the Case Law,”  which explains the role of precedent, details major published and unpublished sources of cases, and describes how cases were cited.

 Mitra Sharafi’s South Asian Legal History Resources

http://hosted.law.wisc.edu/wordpress/sharafi/

 

 

Bluebook metastasis

Here’s a great article by Richard Posner:  “The Bluebook Blues, ” 120 Yale L. J. 850 (2011).

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense.  It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Judge Posner has a short manual for his clerks (written, as the judge notes, chiefly by Stanford Law School’s alumnus Scott Hemphill, now a prof. at Columbia) which includes an appendix on “citation formats.”  The appendix is reproduced in the article and starts with clarity and commonsense:  “No parallel citations in cases; statutory provisions do not need years, unless the point is to identify an old law . . . “

Here at Stanford I can’t count how many times law students have come to the reference desk confused about what year to assign to a United States Code citation.

Read the short book review article – you’ll enjoy it!

The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts

From the just-received Volume 2010, Issue 1, Spring University of Illinois Journal of Law, Technology & Policy, at page 51:

The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts

by Casey R. Fronk

Abstract:

Since the early 1960s, computerized legal research technology has enabled judges and their law clerks to access legal information quickly and comprehensively. Particularly for appellate judges, who rely on wide-ranging legal research when writing opinions, this technological change has had special resonance. This Article attempts to quantify the effects of computer- assisted legal research on the federal judiciary by empirically analyzing citation patterns over the past fifty years. The results of this analysis suggest that the digitization of legal research has had statistically significant effects on the amount and style of citation in judicial opinions. Although the average number of cases cited in opinions has doubled between 1957 and 2007, the number of cases cited only in string citations has decreased by nearly the same percentage. This Article argues that such results can be explained by a basic economic theory of judicial citation in which judges respond to the decreasing cost of opinion production by discarding string citation for more effective communicative techniques.

Conclusion:

This Article proposes that a simple microeconomic approach can describe judicial citation practices over the last fifty years.  It provides empirical evidence that judges use citations in part as a communication device, and that the cost of legal research is intimately connected with the effectiveness of this communication (and therefore with judicial citation patterns).  The empirical results in this Article not only demonstrate the effectiveness of the microeconomic approach in describing  judicial opinion style, but also provide a foundation for future research into the effects of judicial ideology on citation practices.

How do you cite T-shirts?

Since it’s only a matter of time before a student working on a journal asks this . . .

Q. How do you cite T-shirts?

A. You could write, for example: Last week on Ellis Avenue I saw a T-shirt that said, “I keep pressing Escape but I’m still here.” That is, if you think it’s a good idea to cite a T-shirt.

The Chicago Manual of Style Online

http://www.chicagomanualofstyle.org/CMS_FAQ/new/new_questions01.html

From:

The Chicago Manual of Style website has just been updated with answers to the following new questions:
Q. I’m wondering about the ampersand versus “and” in journal titles.
Q. Another editor wants this: New Westminster, BC: Pie Tree Press, [1988]. I say the comma goes.
Q. We have a difference of opinion in my company about the capitalization of defined terms in policy and procedure documents.
Q. Would it be most correct to write “2000% increase,” “2,000% increase,” or “2,000 percent increase”?
Q. I often have difficulty deciding how to cite translations with critical commentaries of ancient texts. How do I refer to something the editor/translator says in that edition?
Q. What is the proper way to punctuate a compound sentence with an introductory clause that applies to both parts of the sentence?
Q. When sending a paper manuscript for approval of publication in a journal, should it be softbound or sent as loose papers?
Q. Often I find this [ . . . ] within a quote. Does this mean that there is an ellipsis in the quoted passage in the original?
Q. I understand that the term “Other” is a philosophical term. Could it be initially capitalized or in quotes, and then subsequently written lowercase?
Q. What is the correct punctuation for an event or location for a group? I have the following examples: delegates’ reception, members’ forum, speakers’ room.
Q. How do you cite T-shirts?
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To read the answers to this month’s questions, go to the Chicago Manual of Style website, at http://www.chicagomanualofstyle.org.
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Citation Process for California Supreme Court Opinions

On the NOCALL list today was an interesting posting from Kerry Shoji, Paralegal/Research Analyst.

Kerry had recently asked questions on the NOCALL list about the citation process for the California Supreme Court.  Kerry then passed the questions along to the experts, Fran Jones, Director of Library Services, California Judicial Center Library and Edward Jessen, Reporter of Decisions.

Below is the text of Kerry’s questions and Mr. Jessen’s responses. [Reproduced with the permission Kerry Shoji and Edward Jessen.]

“How can you find out a California Supreme Court citation on a recently decided case?  I have the LEXIS citation, but I am curious:

1) How the official reporter volume/page number for the citation is assigned?

The California Official Reports publisher assigns volumes and page numbers because it is essentially a byproduct of the print composition process, and deadlines preclude much involvement in this function by the Reporter of Decisions.  But the publisher is contractually required to print opinions in the order received, and there are contractual requirements for the pagination of volumes.

2) How long does it take to go from slip opinion to the bound opinion?

For example, Official Reports advance pamphlet No. 16 will contain all published opinions filed between 5/17/10 and 5/25/10, and will be issued on 6/17/10.  Promptness is regulated by the Official Reports publication contract.*

Citations for opinions in that pamphlet, however, will be available on LexisNexis by approximately June 11.

3) How one can determine the official citation once bound?

Bound volumes, as a general rule, publish about 10 to 12 months after the last pamphlet issues with opinions  for a particular volume.  Citations, however, never change between advance pamphlets and bound volumes, except that superseded opinions (review granted, depublished, or rehearing granted) are omitted.

4) Do all the Westlaw or Lexis electronic references get converted to the official citation once the bound version is issued?

For the California Official Reports, there are several points in the editorial process leading to the final version of opinions in the bound volumes at which this office or the publisher would “convert” a Lexis or Westlaw cite to another California opinion to the Official Reports cite.  The LexisNexis version of that opinion would also then receive the Official Reports cite in place of the Lexis or Westlaw cite.  I cannot speak to what Westlaw would do in this situation because it is not the official version of opinions and we do not control content in the way we do for opinions on LexisNexis.”

*Special note: Peter W. Martin, Cornell Law School, has published in his Access to Law site many of the contracts between State courts and law report publishers, including California (2003).  There is also a great table showing these contracts, too.

What If Law Journal Citations Included Digital Object Identifiers? A Snapshot of Major Law Journals

“What If Law Journal Citations Included Digital Object Identifiers? A Snapshot of Major Law Journals”

BENJAMIN J. KEELE, Indiana University Bloomington – School of Library and Information Science

Prevailing citation practice in law journals is to use uniform resource locators (URLs) when citing electronic sources. Digital object identifiers (DOIs) provide a more reliable and robust mechanism for citing digital, scholarly articles. This study examines to what extent DOIs exist but are not used in law journal citations. Citations to scholarly articles from twenty-five randomly-selected articles appearing in the 2008-2009 volumes of four major law journals (Harvard Law Review, Columbia Law Review, Yale Law Journal, and University of Pennsylvania Law Review) were checked for existing DOIs using CrossRef’s Simple Text Query form. This resulted in 394 citations that could have had DOIs, but did not. This non-trivial number suggests that law journal editors and librarians should consider adding DOIs to citations. For journals that publish exclusively online or are interdisciplinary, assigning DOIs to their own articles may be a prudent measure to better ensure long-term digital access and citation by scholars in other fields.

Source:  LSN Experimental & Empirical Studies eJournal Vol. 11 No. 42,
  04/26/2010

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1″

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009