I am hoping readers can provide some empirical data in a series of disagreements I have been having with West Publishing Company in connection with my new 6,700 page treatise on copyright, due out the first of January. My theory is that West is dead wrong about what is useful to its customers or doesn’t care because it believes that if it brands its books like cattle with endless references to West somehow this is good advertising. I could be wrong; it could be West knows very well what research tools are useful to its customers and my objections are ill-founded and ill-tempered. If my theory is wrong I will quit abusing my long-suffering and abused attorney editor, an outstanding individual who deserves much much better. If I am right, I will get bragging rights, but given West’s corporate attitude I am skeptical anything will change: West’s attitude appears to be "there’s the right way, there’s the wrong way, and then there’s West’s way."
Let me be very clear that none of this has to do with substantive issues: on all substantive issues West has been extremely generous in letting me write the book I wanted , for which I am deeply grateful, while my attorney editor has provided incredibly helpful suggestions and corrections. My issues lie elsewhere, in the deeply nerdy issues of the use of key numbering, key cites, and citation forms, things which excite very few, maybe only me. The issues do go, however, to how we use online versus print versions of books and so may be of some general interest.
The print versus online distinction is a critical issue although not the only one, but let’s start with it. For the print version, my strong preference is to have no key cites or key numbering; none, no where; they cannot conceivably perform any useful function: slapping key cites or key numbering on a print version is an useless as you know what on a bull. You can’t link to anything. West asserts that people looking at the print version then go online and use the key cite or key number. I find that a fantastic assertion: how many people would put down the print version only to then go online and use the key cite or key numbering function, especially in a book like this which is 6,700 pages of fanatical detail? But even if such an individual exists, the actual key cites or key numbers are at such a level of insipid generality that I cannot imagine them ever being useful, but if so, they are never useful in a book of this sort where you have the print version right in front of you: there is nothing, absolutely nothing that you will learn by going just to the key cites or key numbering. To me it is the crassest form of cattle branding; utterly useless, and I think West knows it too. Am I correct, or am I exaggerating? Is there anyone who has ever been reading the print version of a comprehensive treatise and then gone online just to use key cites or key numbering (I am not talking about using them if you start your research online and are not using the print version).
But assuming there is such a person, to actually be useful, the key numbering would have to actually lead to someone useful. In my case, the key numbers could not be more useless. For example, Chapter 1 is an historical review; there are 111 sections, spanning 406 single spaced printed pages. The issues cover the entire history of copyright from Renaissance Italy to the Congress that just adjourned. For every section other than the first (which is no better), that is 110 times in a row, regardless of the subject matter of the section, there is the same key number: "West’s Key Number Digest, Copyrights and Intellectual Property 1,2." Of course, neither key number discusses anything covered in those 406 pages. Is this useful to you? Do you think it should be in the print version? Would you think West is telling you that those key numbers are useful to you in reading the sections they are inserted into? (And then there is in every chapter an enormous block of text explaining 25 times what KeyCite is, more useless, blatant advertising). My view is that the print version should be pristine: no reference guides, no references to KeyCite or key numbering.
For the online version, I assume some people (hopefully a very small number) use key cites or key numbers, so I have not taken the position that they should be totally banned as I think they must be from the print version. But in the online version, should key numbers and cites be strewn throughout every section in the book, as they are? Or, should they be used intelligently, say after West has determined by looking at a key number that there is relevant material in it? Use of the same key number: "West’s Key Number Digest, Copyrights and Intellectual Property 1,2" 110 times in a row where there is nothing of any relevance in 1 or 2 cannot possibly be helpful. It is instead banner advertising, relentlessly thrown up in every section. If you are going to do advertising, do it intelligently, make it relevant: that is an important reason why Google outperforms Yahoo: Google’s serving up of ads is tightly targeted: 110 repetitions of the same useless key number takes the opposite approach. My view is either make something useful or don’t do it, or come clean: "we know the key numbers aren’t useful, but we want to do advertising." OK, then why not really do advertising? Why not sell space to law firms, for example, that specialize in particular areas? For example, in a discussion of architectural works, LBK in Houston could run an ad. Someone who specialized in sampling could run an ad in that section. In short, do it right and be honest.
Citations are the next issue. For books and articles, I had inserted the first name of the author: West deleted them. The trend in legal scholarship is toward greater information, not less, for example even including middle names. Should the first names be present or not? Parallel cites are the next issue. If there is an a F Supp, F3d cite, that is all there should be in my opinion. If there isn’t such a report of a case, I think there should be a Westlaw cite so you can link on to it. West’s approach is to put a CCH cite first, then Westlaw usually without a pinpoint cite, which I had inserted but which was stripped out. Very few people use CCH and it is not linkable from Westlaw. It is placed first because of a bizarre view that CCH is a "published" form while Westlaw is unpublished. I say take out the CCH and in all cases provide the pinpoint cite. West also has what I regard as an equally bizarre citation form for older court of appeals decisions. The present court of appeals were created in 1981, but co-existed with the circuit courts until 1911. West’s form of citing to these older circuit court opinions (and I believe well past 1911) is X v. Y, 222 F. 222 (C.C.A. 1st Cir. 1906). That makes no sense, the C.C.A. being duplicative of Cir.). Another issue is repetition of the case name. I find this wholly unnecessary: if a case name is stated in the text, say X v. Y, West, in the first footnote and every other footnote, repeats the full name of the case and full cite. My view is that if the name is given in the text, it should not be repeated in the footnote and certainly not for every footnote thereafter.
There are other issues, but this is more than enough. Weigh in and tell me who has the better
arguments: am I kvetching about trivia that no one in their right mind cares about, or does it matter?