The Westlaw editorial process for Patient Protection & Affordable Care Act, part 3 (headnotes)

September 18, 2012

Adding editorial enhancements to the Supreme Court’s health care decision

After Lane, the KeyCite Analyst, completed the history for the Supreme Court’s Patient Protection and Affordable Care Act decision, 132 S.Ct. 2566 , the next step in Legal Editorial Operations was the creation of editorial enhancements, including headnotes and a synopsis.  As you all may know, headnotes summarize the points of law in a case and are a very important piece of any legal research, helping the researcher to decide very quickly whether the case is of interest to him or her.

Just a few minutes after the Supreme Court announced its decision, Jerry Barnaby, the team coordinator in the KeyCite Analyst area, printed it out on Westlaw and plopped it onto my desk. It was time to start writing, but I wasn’t writing on a blank slate (or typing into a blank screen) on the last Thursday in June 2012. My planning had begun when the Court granted certiorari on the second Monday in November 2011. Since then, I had written the portion of the synopsis describing the procedural history of the case, familiarized myself with the lower court rulings, learned the relevant terms of art, and, especially in the month of June, answered a lot of questions from coworkers, like “Will we be getting the decision soon?”

I had recruited Chip Allen, a senior attorney-editor with almost 33 years of experience, to be on standby to help, just in case the Justices reached a fractured decision, with shifting majorities. That happens sometimes.

And it happened here — which we quickly realized, by looking at the listing of how the justices voted on the various subparts of the opinion. What wouldn’t be quick was figuring out the extent to which five justices agreed on the reasoning for various points of law. This would determine which propositions in the lead opinion from Chief Justice Roberts could be headnoted, and how broadly or narrowly the headnotes could be written. This would also determine which cases cited by the Court could receive red flag or yellow flag treatments on KeyCite ® — “distinguishing” or “declining to extend,” for example.

Clearly, some subparts could be headnoted immediately, and that’s what I did. The others required a reading of the concurring and dissenting opinions, before I could start writing. Chip did that reading, while I was writing and printing out headnotes in small batches, so the classifiers could start doing their research.

As I wrote, I kept in mind — not that I’m in any danger of forgetting — that one of the benefits of our editorial enhancements is the addition of search terms that make a case easier for our customers to find. The lower court opinions had used terms of art. For example, the legislation referred to a “shared responsibility payment.” It is more popularly known as the individual mandate. The headnotes for the Supreme Court’s holdings on the Anti-Injunction Act, the Taxing Clause, and the Direct Tax Clause classified to the topic Internal Revenue. The headnotes used both the tax code’s term of art and the phrase more familiar to researchers, “individual mandate.”

There aren’t a lot of cases discussing the Direct Tax Clause — a lawyer wouldn’t make a very good living if that was his or her area of expertise. I ended up making a headnote defining “capitation” for purposes of the Direct Tax Clause, and that headnote was sent to “Words and Phrases,” a Westlaw feature that compiles court definitions of legal terms of art.

After Chip had finished his reading, and I had finished my writing, we met. He told me what the concurring and dissenting opinions said. Now, I could start writing the rest of the headnotes. And when all the headnotes were done, the classifiers could add the Key Numbers.

The Westlaw editorial process for Patient Protection & Affordable Care Act, part 1

The Westlaw editorial process for Patient Protection & Affordable Care Act, part 2 (Keycite)

The Westlaw editorial process for Patient Protection & Affordable Care Act, part 3 (headnotes)

The Westlaw editorial process for Patient Protection & Affordable Care Act, part 4 (Key Numbers)

The Westlaw editorial process for Patient Protection & Affordable Care Act, part 5 (Codes validity)