public domain citations

We take a break from Casey’s BS series and point you to a historical review of the “cutthroat” legal research industry as it moved from print, hardbound reporter sets, to the online legal research systems which we know today. Whenever an industry is disrupted by a new technology, the players within the industry can play hardball with each other, and that typically leads to litigation as everyone scrambles to protect their stake in that industry. Legal publishing was completely disrupted in the 1990s, and Alan Sugarman from HyperLaw was on the front lines of this battle. Sugarman tells his story to Sam Glover, over at The Lawyerist, and it is definitely worth a listen.

Sugarman describes the history of his battle with Westlaw and their claim to copyright on a number of issues, but primarily Sugarman’s discusses his suit against Westlaw’s claims of copyright on the text and the citation of court opinions. It’s a fascinating listen on how the legal research industry shifted to online research and the different issues surrounding the transformation.

It reminds me of my days with the Oklahoma State Court Network (OSCN.net) and when we adopted the vendor-neutral citation system we adopted and made official in the 90s. Sugarman talks about the vendor-neutral system and his stress on including the docket number of the court decisions within the vendor-neutral cites.

Hat’s off to Alan Sugarman for his rebellion in the 1990s. Take a listen to “The Lawyerist Podcast #151: How Westlaw Lost its Copyright, with Alan Sugarman.” Without the likes of Sugarman and others who challenged the behemoths of the legal publishing world, we wouldn’t have products like Google Scholar, Fastcase, and other legal research resources today.

I’m not sure how I missed this big news coming out of the Oklahoma Supreme Court, but it is something that has made me very happy, and very proud to have played a small part over a decade ago. Peter Martin pointed out on his blog that the Oklahoma Supreme Court, as of January 1, 2014, has become the official publisher of the state’s appellate court decisions and will distribute those decisions through The Oklahoma State Courts Network (http://www.oscn.net). All other publishers, including West Publishing, will be unofficial publishers. This is a big deal, considering that West had been the official publisher for sixty years. Here is a blurb from the Oklahoma Supreme Court decision, 2013 OK 109:

(1) Effective January 1, 2014 the Oklahoma Supreme Court will become the official publisher of decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals. The Oklahoma State Courts Network at www.oscn.net shall be the repository of official versions of the published decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals. Such decisions will become official upon the placement of the respective court’s official seal at the beginning of the published decision.
(2) The Oklahoma Bar Journal, West Publishing Company, and other publishers will continue to be unofficial publishers of decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals.

I’ll ask around to see if I can find out more information behind the decision and write when I know something more. Again, Peter Martin’s post goes into some further detail on what it actually means for a state to publish its own decisions, use a vendor-neutral citation system, and keep those decisions accurate and available.

Thanks to @caminick and those at Justia for pointing this out to me. It is really nice seeing the work started in 1997 by Justice Kauger and my fellow OU Law School classmate, Kevin King, come to fruition. I had the pleasure of managing the Court’s public website from 1999-2002.

If you’re going to submit documents with citations to unpublished decisions to US International Trade Court Commission Administrative Judge Dee Lord, you’re going to have to make sure it has Westlaw citations and not Lexis. In Judge Lord’s ITC Order [pdf] she ordered the parties to change the “incorrect” LEXIS citations for unpublished decisions and resubmit the briefs and reply briefs with WESTLAW citations.

The parties’ post trial briefs and reply briefs include several incorrect legal citations and citations to LEXIS databases for unpublished decisions, which are no longer available to the USITC. To ensure that the cited legal authority is considered, the parties are hereby ordered to review their briefs and verify the accuracy of their citations. The parties shall file corrected briefs, no later than February 14,2014, using Bluebook formatting for citations, fixing any errors in the citations and including WESTLAW citations for any unpublished decisions (including USITC orders and opinions).

Judge Lord joined the ITC Bench in September last year, and it would seem (and I am hoping) that this is her preference to how she wants briefs filed and not a larger trend. Since according to the USITC website [pdf, page 21], decisions can be researched on both Westlaw and Lexis, it would seem that both citations would be accepted by the USITC. However, the part in Judge Lord’s decision that says that Lexis unpublished decisions “are no longer available to the USITC”, may be driving this decision and thus creating an “incorrect LEXIS” citation.

This type of decision could mean that anyone submitting documents to the USITC would have to use Westlaw in order to submit “correct” citations. Let’s hope not!! Of course, it would be great if the courts would use a universal citation for their published and unpublished opinions, but that might be just too much to ask…

[Hat tip to Amy for pointing this out, and to Mark for getting me the USITC mention of using Westlaw or Lexis for USITC research.]

[Ed. Note: I incorrectly referred to the ITC as International Trade Court. I should have said International Trade Commission. – GL 2/15/2014]