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  Perhaps someone would like to respond to this from Alan. jl
  ---------- Forwarded message ----------
  Date: Thu, 1 Feb 1996 16:24:34 -0500 (EST)
  From: Alan Sugarman <sugarman@hyperlaw.com>
  To: teknoids@listserv.law.cornell.edu,
      Multiple recipients of list <teknoids@listserv.law.cornell.edu>
  Subject: LAW SCHOOL SERVERS, PALMING OFF etc. (long)
  To be published in The HyperLaw Report.
  Alan D. Sugarman, HyperLaw, Inc. February 1, 1996.
  Part II of this posting was completed prior to my receipt of the messages of 
  Tom Bruce of Cornell's Legal Informatin Institute (LII), William Morse of 
  Emory, and Kenneth P. Mortensen of Villanova. I am posting Part II unchanged 
  and realize that portions of Part I may be redundant.
  In earlier postings I objected to the Law School Court Opinions Web Sites that 
  solicited the imprimatur of the courts, falsely imply special authoritativness, 
  attempted to copyright HTML versions of public domain court opinions, and did 
  not make easily available by FTP or otherwise the original source files 
  obtained from the courts.  I provided excerpts from the Web Pages at Emory, 
  Cornell and Villanova concerning their policies and copyright claims.  My 
  comments related not to technical issues such as whether ftp was better than 
  http, or whether ASCII, WordPerfect or HTML were the best formats.  I will 
  address the policy issues.
  In this posting, I argue that the Law Schools sites are developing models that 
  are lowering the quality of case law, encouraging courts not to meet their 
  responsibilities, and and not meeting the quality standards of the law schools 
  on their letterheads.
  Unfortunately, first, I must address William Morse's ad hominem attack, that 
  "Of course, it seems odd that you, running a for profit venture which likely 
  has been hurt by our efforts, suddenly feels the need to scream openness."  Not 
  odd or sudden at all, Mr. Morse, if you followed what has gone on the last few 
  years.  Not only is Mr. Morse's attack irrelevant and illustrates again that 
  when the facts are against you, go on a personal attack, but he is completely 
  wrong.  I with others have been "screaming openness", to use Morse's phrase, 
  since 1991.  I have piles of my own correspondence concerning opening up access 
  to court opinions including, as an example close to Morse's home, the exclusive 
  feed once provided by the Eleventh Circuit to West which ended in 1993, a few 
  weeks after I spoke about the issue at a panel of the AALL in Boston and 
  several months after a joint letter to Chief Judge Tjoflatt and Dwight Opperman 
  copied to various federal court officials.
  At present I and others are pressing four specific openness issues:
  1. Ending the .75 cent a minute charge to access Pacer court opinions which far 
  exceeds the incremental costs of dissemination of the court opinions.
  2. The release by the United Supreme Court of the electronic versions of the 
  United States Reports
  3. The release by the United States District Courts of electronic versions of 
  their opinions
  4. The release of the United States Air Force FLITE database of United States 
  Supreme Court Opinions from 1937 to 1976.
  In addition I have been an active advocate of citation reform.  When 
  successful, I expect and it is my intention that these efforts will free up 
  even more information for the Law School web sites.
  Those also active on some or all of these issues, such as Jamie Love of 
  Taxpayer Assets Project and the American Association of Legal Publishers could 
  use the open and explicit support on these issues and the use of your HTML 
  pages to communicate the issues to those who will benefit.
  It is true that the Law School Web Sites is hurting or may hurt us but in this 
  regard only: the free access provided to the Law Schools on the BBS's and the 
  availability of many of the opinions on the Web Sites has removed pressure on 
  the courts and Congress to change the pricing of access to download court 
  opinions form Pacer and it may have helped cause one court to stop running the 
  Pacer BBS (the Eleventh Circuit).  (In a sense, the law schools have been 
  bought off and taken out of an important public policy issue by being provided 
  free access to the BBS's.)  It may have influenced another court (the Fifth 
  Circuit) to substantially curtail the period of time when opinions are 
  archived.  As to the Fifth Circuit, I am now at the mercy of the University of 
  Texas' willingness to continue to make the original versions (RTF) available on 
  an FTP site, which could change at any time based upon the whims of 
  institutional support or whatever technocrat is operating the system at the 
  time.  Finally, we fear what will happen when the District Courts place their 
  files on Pacer.
  I should note however that I did not complain at all about the Texas Web site, 
  for they make the (near) original files openly available.  On the other hand, 
  despite these intentions, the bad effect was that the Fifth Circuit then 
  stopped archiving after 30 days.
  My objection is not to the Law School Web sites -- my stated objection was to 
  those schools that on the promise of broad access and under the imprimatur of 
  the courts artificially then limit access to the original source files, while 
  at the same time placing spurious copyrights on the HTML versions which 
  themselves do not carry over all the "information" found in the original files.
  What I believe is appropriate is to hold each of you to the professional and 
  academic standards of the schools on your letterheads.  Cornell, Emory, and 
  Villanova are national law schools.  Moreover, where someone adopts or implies 
  the imprimatur of a Court, as does Emory, then the appropriate standard is the 
  standard one would apply to a publicly funded court.  If one takes the label, 
  one takes the accountability.
  Mr. Bruce:  I cannot understand how Cornell Law School-LII can place on its 
  well known and advertised Web Server links to Supreme Court slip opinions that 
  have been superseded by the official United States Supreme Court versions 
  without indicating this prominently.  Frankly, I do not believe that this is 
  properly reflective of the academic standards of a pre-eminent law school like 
  Cornell. I do not think the Cornell Law Review would quote from a slip opinion 
  of a Supreme Court case when the United States Report version had been out for 
  two years.  In addition, Cornell-LII should also bring to the attention of 
  those using this popular Web page that the Supreme Court could, but does not 
  release, the electronic versions of the final US Reports. The way in which 
  Cornell-LII skirts around this issue is a prime example of the way in which the 
  access provided by the law schools condones the failure of the courts to meet 
  their public responsibilities, and misleads the public as well.
  Mr. Bruce: If Case Western did not makes its opinions available on an FTP 
  server, then Cornell-LII would not be able to run its Supreme Court service.  
  If Case Western decided that it wished to be the big WEB site for Supreme Court 
  opinions and were to suddenly and to shut off access to it FTP site, where 
  would Cornell be, and to whom would you complain and why? [Hint:  The United 
  States Supreme Court should run its own FTP site and not rely upon Case 
  Western.  What happens if they get tired of feeding the entire world with these 
  I agree with Mr. Bruce that the law schools have an essential role in providing 
  a test bed or model for the courts to follow.  However, it seems to me that the 
  model being developed is absolutely the wrong model, especially the Emory 
  version.  The concept that the law schools will develop so-called special deals 
  with a court, lock up the original files, ignore version control, accept no 
  responsibility for missing files and amended opinions, and then attempt to 
  copyright what is made available is not the model for the courts to follow.
  It might also be useful were some to exhibit a little more humility and 
  modesty.  99% of the hard (and boring) work is being performed by the staffs at 
  the federal courts of appeals that operate bulletin boards that range from the 
  good to the excellent.  Most of the prototyping on public access to case law 
  has been done by the staffs of these courts.  This was all in place by 1993 and 
  without it, the Law School Pages would just be non-existent.  I am sure if the 
  court technical staffs were released from artificial constraints, we would see 
  some well run ftp and WEB sites.
  The factors that led to the "need" for the law school WEB sites were and remain 
  artificial.  One reason why there was limited public access to these court 
  opinions is the PACER access charge of .75 a minute.  Among other things, no 
  one wanted to pay the "freight" (including the law schools) and then make the 
  files available for free for Internet "freeloaders."  This was and is an 
  arbitrary charge to access material that exists anyway.  So, the law schools 
  asked for free access.
  In addition, the courts could easily copy their opinion files to an FTP site.  
  How big a deal is that?  The reason they do not is largely political, and 
  largely the result of people like Morse and West running around making it sound 
  far more complex than it is and screaming wooly-wooly about security on the 
  Internet.  So, I suggest that Cornell, actually set up a prototype FTP server 
  and make it available to courts that need the technical assistance to run their 
  own FTP sites and to test their own cites.  The focus would be on methods to 
  assure integrity and authenticity and on the KISS factor.  Lists of files, 
  which the courts already maintain, would be placed on the site.  In addition to 
  the FTP site, one could also create an HTML page converted from the existing 
  file list.  The server then could be made available to any court to test out 
  the methodology.  Then, after that, Emory and anyone else on a non-exclusive 
  basis could set up a fancy WEB sit with their own HTML versions and Harvest 
  search engines, accessing this publicly available data.
  In addition, Cornell could work on thorny issues like file naming conventions, 
  immediately available public domain citations, version control, digital 
  signature, and even paragraph numbering software.
  Tom, you suggested a debate on what is the reasonable level of quality: First, 
  the quality should be no lower than what is coming from the courts in the first 
  instance.  Second, with the label "Cornell" on the package, it better meet up 
  with the academic and publishing standards of Cornell Law School.  Third if 
  there is an implication that a Law School is acting on behalf of the Court, as 
  Emory palms itself off, then the quality should be at the authoritative and 
  authentic level.
  For example, if Cornell is on the label, and all of the January 1996 Second 
  Circuit cases are missing, then the users should be so advised.  If the Supreme 
  Court slip opinions have been superseded, then the users should be so advised. 
   A warning that some cases are missing is just not sufficient.
  Finally, I do not understand why you feel the need to make HTML copyright 
  claims (No doubt, Professor Samuelson on the Cornell faculty -- see recent 
  Wired article -- might disagree with your ability to do so) and your  
  anti-private sector and commercial publisher approach.  First, your institute 
  is a "commercial publisher", albeit a non-profit publisher  --- see your disk 
  publications.  Second, your faculty enters into contracts with commercial 
  publishers and receive royalties for the publication thereof.  Third, your 
  faculty enters into consulting agreements with these commercial publishers.  
  Fourth, your school trains lawyers who go to work for commercial publishers and 
  other commercial concerns.  Fifth, your library purchases products from these 
  commercial publishers and bears the brunt of limited competition and 
  artificially high costs for source material.  Sixth, I assume you would willing 
  take a consulting assignment with one of these commercial publishers.  Seventh, 
  your institute solicits and accepts contributions from these commercial 
  publishers.  Eighth, your law school accepts cut-rate access to the commercial 
  on-line databases.  Ninth, your school is in part a semi-public institution and 
  is directly or indirectly supported by taxes paid by these commercial 
  publishers. And Tenth, LII is so close to Folio that at times it appears to be 
  a part of its marketing arm.
  The sixties are over:  it is no longer politically correct to make disparaging 
  comments based solely upon a person's gender, sexual orientation, or 
  And who are these commercial publishers who you are concerned about?  Do you 
  really think that West, Lexis, and Thompson would take unverifiable HTML files 
  off your server, especially if the original court files was available.  So, is 
  your beef is with the second, third and fourth tier publishers?  [I am sort of 
  glad I did not make a contribution to Cornell's LII when I was solicited ... It 
  was a choice between paying fees to Pacer and paying for access to the Supreme 
  Court's Hermes or contributing a few bucks to LII.  My sense was that LII would 
  end up acting like a commercial publisher .] 
  People wander back and forth between jobs working in the private and public 
  sector and sometimes forget what hat they are wearing.  Sure you may not want 
  someone to cop your HTML files.  Similarly, a lot of judges and court staff  
  resent the fact that publishers make money of "their" work.  But the creation 
  of these files were funded on the basis of public access and by public funds.  
  They do not belong to the courts, and, the HTML files do not belong to you 
  personally but your institute which is supposed to be dedicated to public 
  An idea has been floated around amongst a couple of legal publishers as to 
  creating a "public utility" to create a case law archive and amongst the 
  institutions casually mentioned were Villanova, NCAR, Cornell etc.  It seemed 
  like a good idea at first.  But, given the predisposition of those running 
  these types of ventures to copyright their work, the who-me point-the-finger 
  approach, and the tendencies of bureaucracies to be self-perpetuating etc., I 
  do not think this will work.  Also, it is more efficient for the archive to be 
  created an maintained at the clerk's office level.  Centralized levels add no 
  value.  In the final analysis, the archives are a court responsibility and 
  should be run by the courts and would then susceptible to public pressures and 
  be accountable.  I really do not need to deal with types who are anti-private 
  sector, point the finger back to the courts while locking up everything they 
  can, and are not subject to Congressional or public oversight and parry all 
  criticism on the basis of the volunteer nature of their activites.  
  The law schools need to be careful about setting up exclusive self-perpetuating 
  systems that provide easy publicity but in the long term will undermine the 
  integrity, completeness, and authoritativeness of American case law (and, 
  Professor Robert Berring has expressed himself on this issue.)
  Next is part II that provides some factual background and I apologize for any 
  Part II:
  A recent posting perpetuates an important inaccuracy concerning United States 
  Supreme Court opinions and what is available on the WEB.
  Cornell has built a WEB front end to the ftp site run by Case Western Reserve 
  Law School.  The ftp site directories contain all original files obtained by 
  CWRU as a Hermes subscriber from the United States Supreme Court.  The WP 5.1 
  and ASCII versions of the opinions are prepared in their entirety by the 
  Reporter of Decisions Office at the Court (CWRU may append the different parts 
  of an opinion into a single ASCII file for each opinion and these appended 
  files are kept in a third directory.)  One can access the ftp site at CWRU and 
  obtain the exact files originally prepared by the Reporter's Office, with the 
  same file date and same file size.  CWRU runs a publicly available archive of 
  all of the slip opinions disseminated by the Court.  There is little question 
  in my mind as the authenticity of each file.   The quality of the files and the 
  quality and accuracy of the ASCII opinions are based entirely on the work of 
  the Reporter of Decisions.  So the good of CWRU do is that authentic opinion 
  files prepared by the Supreme Court are made to all in bulk at little cost.  
  CWRU provides no "value added", except the significant public service of making 
  the originals available to all [indeed, if a file is missing CWRU generally 
  does not know, and it may not be their fault].
  On the other hand, these files are in my view subsequently misrepresented by 
  others and many believe that the older opinion files are replaced by the 
  Official United States Reports (the Reporter's Office is currently -- i.e.. on 
  January 11, 1996) -- finalizing Volume 507 of US Reports which contains 
  decisions into April, 1993.)  I have read in countless articles, countless 
  Internet postings, and panels of law professors and law librarians that the 
  United States Reports are on the WEB and in a way these slip opinions are being 
  palmed off as the US Reports version.  What is also important to know is that 
  the Court could, if it wished, make available electronic versions of the US 
  Reports ... but, since everyone seems to think that it what they are looking at 
  on the Internet, there is no pressure to modify the situation.  And, it is 
  extraordinary that the superseded slip opinions for 1990, 1991, and 1992 are 
  allowed to be disseminated without even a hint as to what they are.  So, what 
  was good now becomes something that is bad.  Since the institutions in the 
  middle are gratuitous disseminators (although funded by someone, I assume those 
  who do it are paid), they end up contributing to a lowering of the quality of 
  legal opinions relied upon by the public and basically say that it is not their 
  responsibility:  they only put up what the court puts up.
  Now, we can look at some of the Circuit Courts.  What shows up on the WEB is 
  only as good as what comes out of the courts. Let us compare the Eleventh 
  Circuit and the Fifth Circuit.  Thanks to the effort of one Ward Mundy on the 
  staff of the Clerk's Office of the Eleventh Circuit, a complete (if not quirky) 
  FTP site is run by him on behalf of the court.  Also, the Eleventh Circuit slip 
  opinions are printed by West and most of the electronic opinions on the FTP 
  site were vetted by West and sent back.  In general, the FTP site contains a 
  complete set of opinions in Word Perfect format including a file which list the 
  opinions and versions thereof.  About the time the FTP site was set-up and the 
  Eleventh Circuit shut down its BBS site, Emory started its opinion service (by 
  sheer coincidence, Emory is in Atlanta and is the law school from which Judge 
  Forrester, a US District Court Judge in Atlanta and the head of the Technology 
  Committee for the Judicial Conference graduated in 1967 and from which J.D. 
  Fleming, chair of the ABA Citations Issues Committee graduated in 1966.)
  Basically, Emory copies the files from the FTP site and need not worry about 
  completeness or accuracy because this has already been taken care of by the 
  Court and its contractor West.  Emory converts the files to RTF and then to 
  HTML.  It does not make the files available in FTP form.  Now things become 
  interesting ... the Eleventh Circuit site zips all the files for a month into a 
  single file.  So, Cornell could not do with the Eleventh Circuit opinions what 
  it does with the Supreme Court opinions on the CWRU site ... builds its own 
  front end and link out of WEB pages by FTP to the individual court opinions.  
  Were the Eleventh Circuit to take is content rich FTP site and make the files 
  thereon available on an opinion by opinion basis, then in a sense Emory would 
  be redundant or easily replicated by anyone who wished to build a front end and 
  link into the Eleventh Circuit page.  Remember, Emory is content wise providing 
  no value added information and no quality control.  Primary quality control is 
  being provided by the court's Ward Mundy.  Note: Ward Mundy has declined to 
  offer a reason as to why the files are zipped up in a way the makes file by 
  file access difficult.  Is it a coincidence that the Eleventh Circuit's  local 
  law school similarly locks up FTP access?  Whatever, it is troubling.
  By the way, it is also ironic that the Fifth Circuit site run by Texas, which 
  school does make the files available by FTP, actually is a far worse site 
  through no fault of the University of Texas, because the Fifth Circuit does not 
  do a good job of disseminating electronic versions of all of its cases.  A 
  significant number are missing and amendments do not generally get posted (and 
  the Fifth Circuit only post opinions on its BBS for 30 days).  So oddly enough, 
  the quality of the Texas WEB service of Fifth Circuit opinions is lower because 
  the school is completely dependent on the quality and completeness of what 
  comes out of the Clerk's office in New Orleans.
  And, as to the potential of the Courts laying off on the law schools the 
  responsibility for public access, while the Second Circuit BBS states that its 
  opinions are also available on the Web from Touro and Pace, in fact, as of 
  yesterday, there were still no opinions for January, 1996 posted.  So, I really 
  do not blame Touro and Pace because they are law schools and not publishers, 
  but, what is really happening is the Courts are deluding themselves that it is 
  OK to continue overcharging for Pacer because the Law Schools are really making 
  it available for "free".  Interestingly, the cases posted by Villanova for the 
  Ninth Circuit do not appear to come directly from the Ninth Circuit and it 
  deletes stuff like the official slip opinion page numbers.  The Emory's Sixth 
  Circuit site drops out the Sixth Circuits official internal page numbering.
  Unfortunately, in the Internet world everything gets glommed together.  The 
  completeness of 11th Circuits opinions, and the explicitly amended 1st and 4th 
  circuit opinions get glommed together with the incomplete sets and superseded, 
  amended and vacated opinions from other circuits.  Then, the bad gets palmed 
  off as the good.   And, a law school takes credit when the source files are 
  good, and says "who me, I do this for nothing", when the files are bad.  Also, 
  I need not comment on some of the other "mirrors" or the Court BBS's.
  So, it really comes down to this.  If the clerk's or reporters office does a 
  good job, then what is on the Internet will be good, complete, and up-to-date. 
   The Law Schools do not really save any work at all for the clerk's offices 
  because the quality and completeness always goes back to those offices. 
  Why is all of this important:
  First, there are 94 US District Courts which eventually will be forced to make 
  their existing electronic versions available.  Will the current model work ... 
  I do not think so, and, it also removes accountability form the district court 
  clerk's offices.
  Second, the time of an official public domain cite has arrived and there is a 
  general moaning and groaning about who will prepare the cite and who will 
  insert paragraph numbers.  The idea has been floated by some involved in the 
  Law School effort and by Judge Forrester that these law schools sites could 
  somehow insert the official citations and the public and publishers would take 
  these of the law school cites.  We think it is a bad idea for a number of 
  reasons: lack of accountability, the fact that the sites now are adding no 
  substantive value, the variation from site to site in completeness, the access 
  requirements imposed by the schools, and the copyright claims by some of the 
  >From the point of view of creating archival files, assuring completeness and 
  quality, and establishing a citation system, the law school sites add no 
  information value, perhaps detract value, and do not appear to be prepared to 
  either undertake the accountability to do such if the courts do not or to 
  conduct themselves as a public custodian of the information.
  The law school sites are no substitute for publicly accessible court maintained 
  archives.  It's neither difficult or expensive to accomplish.  If achieved, the 
  Law Schools would be free to, and encourage, to create innovative WEB sites to 
  make the authoritative information available to a much wider public ... but 
  from the court archives or mirrors thereof.
  FACTOID:  On average, each federal judge writes about 20 "published" opinions a 
  FACTOID:  Federal judges generally have 2 law clerks and one secretary.
  FACTOID:  There are more computers than employees in the federal judiciary 
  LIGHTBULB QUESTION FOR THE DAY:  How many federal judges, clerks and 
  secretaries does it take to insert paragraph numbers in a 20 page opinion?
  Alan D. Sugarman        Federal Appeals on Disc tm CD-ROM ::
  President               Opinions of US Courts of Appeals  ::
                          1993 to Date - All Circuits       :: 
  HyperLaw, Inc.  &reg;                                     :: 
  New York, NY 10023    	                                  ::
  sugarman@hyperlaw.com   212-787-2812   212-496-4138(fax)  ::
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