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LAW SCHOOL SERVERS, PALMING OFF etc. (long) (fwd)
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- Subject: LAW SCHOOL SERVERS, PALMING OFF etc. (long) (fwd)
- From: James Love <firstname.lastname@example.org>
- Date: Thu, 1 Feb 1996 16:28:05 -0500 (EST)
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 <email@example.com>
Multiple recipients of list <firstname.lastname@example.org>
Subject: LAW SCHOOL SERVERS, PALMING OFF etc. (long)
LAW SCHOOL SERVERS, PALMING OFF, AND IS VALUE ADDED BY LAW SCHOOL COURT OPINION
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
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
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
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
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. ® ::
P.O. Box 1176 DO NOT SHORT CIRCUIT YOUR CLIENTS ::
New York, NY 10023 ::
email@example.com 212-787-2812 212-496-4138(fax) ::
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