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JILT 2000 (3) - Philip Leith


Contents

Legal Citations

Dr Philip Leith
Queens University Belfast
Chair of BILETA
p.leith@qub.ac.uk

1. Introduction

This edition of JILT contains the first of a number of papers which originated in the BILETA Citations Workshop held at the University of Edinburgh in March 2000. It is intended over the next few editions of JILT to further develop the ideas from this workshop so that an international perspective can be brought to a topic which, to date, has been primarily of national concern.

2. What are citations?

'Citations' are simply unique identifiers which are applied to judgments or cases. The logic of having a unique identifier to such output from the legal system appear, at first sight, to be compelling: indeed every bit as compelling as having an ISBN applied to each published book. This logic is especially forceful in the common law countries where non-statutory law is developed incrementally by adding judgments to the existing corpus and where judgments can have effect for very many years. Such a unique identifier would allow the researcher to easily identify various relevant factors - court of decision, date of decision, title etc, and whether it was reported in the standard printed legal literature or not reported at all.

3. Difficulties in applying citations

Despite the compelling logical force, though, citations have not been easily applied. One of the papers in this journal, that by Lynn Foster, looks to the obstacles to citations reform. Foster is a member of the most active citations group the AALL Citations Formats Committee and is thus well placed to view the various reasons why such a seemingly obvious system of identification has not been immediately accepted. Certainly in the US there has been a special circumstance where Westlaw's own proprietary citations system became both a standard and a tool in Westlaw's marketing. However, Foster clearly suggests a number of other obstacles.

4. The US experience and global needs

The US experience in citations has been driven by their national needs. One clear result which came from the Citations Workshop was that there was need for a more international attitude to citations - one which did not put either US or common law approaches to the fore, but accepted that a 'neutral' citations system must be expansible to other legal systems. These are the 'cultural' factors which Bruce Kennedy outlines in his paper. Part of the problem, as he suggests, for those who wish a common international citation system is that the textual materials of different jurisdictions can differ significantly, and there is certainly much comparative work required to develop the understanding of each other's legal information needs.

5. Citation systems

There is a sense that citations can become the 'glue' which links the particles of legal information into a more coherent whole. This is particularly the case in the new WWW world. Such a citation system should allow the corpus of existing judgments to be reprocessed and have identifying information added. It is the case, though, that such hand-coding of past judgments is too expensive and more automatic approaches are required. Justin Needle, from Context describes one commercial system which is used to apply citation links 'on the fly'. Commercial publishers are sometimes viewed as all being anti-neutral citation, but it is clear that many of the smaller publishers see such systems as being of great advantage. Such citation systems can allow them to develop innovative products which go beyond the simple editing and publishing of judgments. Context are certainly on of the smaller firms who are supportive of neutral citation systems.

6. Neutral citations - the way forward?

For those close to current developments, there is much to be pleased about. Neutral citations are being accepted by many jurisdictions as being a positive development, and it will not be too long before most countries and most higher courts utilise such systems. However, for those of us in the common law countries who despair of the lack of coherence of law brought about by the mass of judgments, citations are not the total answer to the need for clarity of law. Indeed, there has been some hostility to systems which allow easy access to judgments in the UK because - for many judges - they would prefer that most judgments disappeared from view. The earliest UK example of this, of course, was Lord Diplock in Roberts Petroleum[1] arguing that too many precedents of little value were being cited by advocates. In a more recent example Michaels v. Taylor Woodrow[2] another judge makes the same plea:

'In this case reference was made to a number of ... decisions obtained from legal databases ... This is not new, but the recent growth of computerised databases has made it an ever more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases and that there were even two decades ago. ... Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their client's case must be drawn to the attention of the court.'

It does seem, therefore, that citation systems are but the first step in making law a more coherent system for the common law countries. To stop at the point where neutral citations are universally accepted and claim that law is now clear will be patently untrue, since there will obviously be much more work required. However, it does seem to me that a neutral citations system is certainly the first step in moving towards law which is more certain and more clearly explicated.

Footnotes

1. Roberts Petroleum Lt v Bernard Kenny Ltd [1983] 2 AC 192

2. Available on the English Court Service web site. have not given the full citation for this case and suggest, to demonstrate the utility of unique identifiers, that the reader searches for it him/herself.


This Introdution was published on 31 October 2000.

Citation: Leith, 'Legal Citations', 2000 (3) The Journal of Information, Law and Technology (JILT) . <http://elj.warwick.ac.uk/jilt/00-3/leith.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_3/leith/>


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