One Journal’s Defection from The Bluebook – Its Reasons and 6-Page Replacement

October 11th, 2016

Past posts have noted many points of divergence between the citation norms manifest in most judicial and lawyer writing and The Bluebook‘s dictates. They include such matters as case name abbreviations, the identification of a writer’s online source for cited primary authority, the format and content of treatise citations, and inclusion of a currency date in citations to statutes or regulations. The Bluebook‘s continued reign over law journal commentary and programs of instruction on professional writing in U.S. law schools has largely been taken for granted. Its dominance within the legal academy is undeniable.

Ten years ago Professor Ilya Somin of George Mason explained that dominance in terms of market failure. He argued that it was primarily a result of the decision’s being made by short-termers, student board members at a time they no longer bear the cost of compliance and who, having previously mastered The Bluebook‘s arcane rules, derive some satisfaction from imposing them on their successors as a form of hazing. In a companion Bluebook critique Professor Somin noted that The University of Chicago Law Review had, without evident loss of quality or prestige, employed a simpler and more rational citation scheme ever since 1986.

maroonbook

Today that journal still follows its own citation guide, the “Maroonbook.” The University of Chicago manual is not a rule-for-every-situation guide. It aims, instead, to establish a framework for citation, in which general principles of sufficiency, clarity, consistency, and simplicity operate. In length it runs to 85 pages compared to The Bluebook‘s 560.

Now, in 2016, comes another law journal breakaway with an even more radical rejection of Bluebook rules and specificity. The citation guide released this week by The Berkeley Journal of Gender, Law & Justice consists of a mere six pages of principles and examples. The student editorial boards of other law school-based journals would do well to consider the reasons listed as propelling this change. The first cited by the Journal of Gender, Law & Justice is the barrier that Bluebook compliance places in front of both scholars from other disciplines and practicing lawyers, thereby privileging the work of a relatively small group of authors. Those the requirement favors, of course, are legal academics, who by virtue of background, resources (in the form of student assistants), or both can conform their references to Bluebook mandates. A second reason cited is the costly diversion of editorial time and effort away from attention to an article’s substance in order to scrutinize and perfect the format of its footnotes. Lastly, the editors express concern about the the difficulty for readers, particularly those situated outside the legal academy, posed by the Bluebook‘s terse encoding of journal names. (They employ “J. Mar. L. & Com.” as an example.)

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Will others likely follow? The process of article submission has moved online. Rarely, today, are articles prepared for and submitted to a single journal. Using services like Expresso and Scholastica most law faculty members submit their scholarly writing to multiple journals at once. The vast majority of those journals require citations of submitted manuscripts to be in Bluebook form. This adds a powerful network effect to the factors of market failure cited by Prof. Somin and the prestige and strength of The Bluebook brand. As sound a decision as The Berkeley Journal of Gender, Law & Justice has made, it seems unlikely to foreshadow a large scale exodus of journals through The Bluebook‘s force field.

Better Never than So Very Late?

September 22nd, 2016

The Supreme Court – Opening a New Term in Serious Arrears

As the U.S. Supreme Court begins a fresh October term, the lag between its release of decisions and their publication, the topic of a previous post, has grown to embarrassing length. Today, decisions do not appear with their volume and page number assignments until four and one half to five years after they have been handed down. That critical information is provided to those who require it only when decisions are printed and distributed in a paperback “Preliminary Print” edition. The Preliminary Print covering the period Oct. 3, 2011 through January 17, 2012 (565 U.S. – Part 1) was published just this year and received by the Cornell Law Library on August 3, 2016.

Other courts, federal and state, obliged to follow Supreme Court precedent are left to cope with this immense citation gap. United States v. Jones, decided on January 23, 2012, held that installing a GPS device on a vehicle in order to track the vehicle’s movements constitutes a search under the Fourth Amendment. The case has, as of this date, been referred to in at least 998 subsequent judicial opinions. None has been able to cite the case or its key passages using the official, public domain format: “___ U.S. ___”.

What Can Others Do When the Lead Horse Is So Slow?

Adopt a Similar Pace

A few states that still publish print law reports are themselves years behind, although none so egregiously as the nation’s highest court. The most recent bound volume of the Nevada Reports concludes at the end of 2011. The volume and page numbers for individual decisions, assigned in preliminary prints, are, however, available up through May 2013.

When the Nevada Supreme Court cites decisions of the U.S. Supreme Court for which the official citation is available it uses only that, no parallel references. An August 2016 Nevada case, McNamara v. State, illustrates the court’s preferred format:

[W]e also reject McNamara’s argument that the failure to submit the question of territorial jurisdiction to the jury violated his Sixth Amendment rights as articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Supreme Court’s citation lag forces at least temporary use of an unofficial, commercial source and citation scheme. The author of a 2013 Nevada Supreme Court decision, Holmes v. State, relying on a U.S. Supreme Court’s decision of the year before, cited it as follows:

This argument fails under Howes v. Fields, 565 U.S. __, __, 132 S. Ct. 1181, 1192-94 (2012), because the interrogation was not custodial ….

Neither this Nevada decision nor the cited Supreme Court decision, Howes, is yet out in a preliminary print. There is no reason to imagine that Nevada’s publication delay has been induced by that in the nation’s capital. Yet because the two are both so far behind the Nevada Supreme Court staff will, in all likelihood, be able to fill in the skeletal U.S. Reports reference and drop the parallel Supreme Court Reporter cite when Holmes v. State is readied for final publication.

Ignore and Keep Moving

Most U.S. courts publish their precedent in final form with a degree of promptness that precludes citation of recent Supreme Court decisions to U.S. Reports. That is especially true of jurisdictions that have shifted from print to official digital publication. Illinois appellate decisions move from preliminary to final version quite swiftly. The average elapsed time is less than two months. Furthermore, from the moment of release any court, lawyer, or commentator can cite to an Illinois Supreme Court decision in official form. That is because, at release, each decision carries complete public domain citation information. Because of that jurisdiction’s commendable speed, any Illinois decision that includes a citation to or quotation from an opinion of the U.S. Supreme Court less than four years old cannot employ a full U.S. Reports citation. It must instead rely on a commercial service for the permanent effective reference, as in the following:

This court did not intend to overrule a significant body of case law by this single sentence. “We resist reading a single sentence unnecessary to the decision as having done so much work.” Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, ___, 133 S. Ct. 511, 520 (2012).

Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 33.

New Mexico decisions face the same problem and adopt the same approach. See Morris v. Brandenburg, 2016-NMSC-027, ¶ 23. The Oklahoma Supreme Court doesn’t waste space with a skeletal “__ U.S. __, __”. See Okla. Coalition for Reproductive Justice v. Cline, 2016 OK 17, ¶ 3. That also holds for the print-published opinions of the Supreme Judicial Court of Massachusetts. See Commonwealth v. Arzola470 Mass. 809, 818 (2015).

One Possible Solution for the Court: Take a (Virtual) Page from Nebraska’s Law Reports

Four years ago, confronted by publication delays comparable to those now afflicting the U.S. Reports, Nebraska’s Supreme Court established an Electronic Publications Committee. Its charge was to devise a plan for cutting loose from the costs and delays generated by publishing books that few wanted to buy. The scheme it developed was implemented as of the beginning of this year. By rule the Nebraska Supreme Court declared print publication of the Nebraska Reports and the Nebraska Appellate Reports complete, ending with volume 274 of the former (which contains 2008 decisions up through July 2) and volume 15 of the latter (cutoff date, October 8, 2007). Those volumes were, in fact, the most recently published at the time the committee began its work. Physical distribution of advance sheets ceased with the fulfillment of all outstanding subscriptions this June.

State administered case report publication continues in Nebraska but now solely in digital form. Liberated from the demands of print production, sale, and distribution, the Nebraska Reporter of Decisions, Peggy Polacek, and her staff have already chopped years off the state’s publishing backlog. Eleven virtual volumes of the Nebraska Reports and five of the Nebraska Appellate Reports were completed in final form over the summer. They reside, fully authenticated, within the Nebraska Appellate Courts Online Library site – an open repository of all published opinions of the Nebraska Supreme Court and Nebraska Court of Appeals.

Having years of decisions already in the publication pipeline, Nebraska opted not to alter the jurisdiction’s existing format or citation scheme. Decisions and their quoted or cited portions are still to be identified by volume and page numbers. Unlike other states that have taken their case law digital, Nebraska did not switch to medium-independent case designations or paragraph numbers. Nebraska’s continuing reliance on a print-oriented citation scheme does not mean that those relying on its precedent must await a decision’s being bundled with others for its citation information. From the moment of release, published Nebraska decisions carry their volume number and ultimate pagination. State v. Liner, released on September 13, 2016, is to be cited: “24 Neb. App. 311”. It runs through page 322 of volume 24. As was true when print was the official medium, content on page 318 of the “advance” version will remain on page 318 of the final “certified” electronic version. When the next Court of Appeals decision is published it will be “24 Neb. App. 323”.  (The beginning of each decision starts a fresh page.) Every one thousand pages or so one digital volume is closed and the next, begun.

Could the U.S. Supreme Court Do the Same?

Unlike the “advance” opinions released by Nebraska’s appellate courts through its reporter’s office, the “slips” issued by the U.S. Supreme Court on the day of decision are not integrated compilations of the separate opinions they may contain preceded by the reporter’s syllabus. Each component, including that syllabus, has a full case heading.  They may be stapled together in print and merged into a single electronic file, but syllabus, majority, concurring, and dissenting opinions are all paginated separately. Any cross-references they contain – majority opinion to dissent, for example – must take a temporary form that addresses that awkward fact. Would it add too much time to the pre-release work flow to have the reporter’s office pull these pieces together as Nebraska’s does, stripping off the separate headings, running consecutive pagination through all constituent opinions, and conforming the internal cross-references? It shouldn’t. That done, the only further step required to eliminate the present citation lag would be to assign cases to a volume and run their pagination in a continuous sequence rather than resetting each at “1”. In other words if the first decision of a term runs to eight pages, start the second at page “9”. If the second consists of a 4-page syllabus, 21-page majority opinion, and 21-page dissent, commence the third at page “55”, and so on. If all of this were to delay public release of the Court’s decisions a few days or even a week, the harm would be minimal, the gain, enormous. The reporter’s office already maintains consistent pagination between the preliminary print edition of a volume’s constituent parts and the ultimate bound versions. The Nebraska approach would simply entail moving that one stage earlier in the publication process.

Nothing in this set of editorial reforms would imply that the G.P.O. need cease printing volumes of the U.S. Reports. The principal aim would simply be to prevent the huge delays in print publication from denying timely access to official citation information. It is true that the very factors that drove Nebraska to designate the final electronic version of its published decisions “official” lie behind the tardy publication of the U.S. Reports. Budgets are tight, and the use of, and therefore demand for, print law reports has plummeted. It is quite possible that if Supreme Court decisions carried their official citation data from the moment of release and final electronic versions were certified weeks or months rather than years later, even greater delays in the production and distribution of bound volumes of those opinions might follow. But who would care? Today, nearly all case research is done online. In the present environment the timeliness with which authoritative, citable electronic versions of precedent are made available is vastly more important than rate at which those same opinions are physically archived in a set of books.

Dealing with the Deep Backlog of Skeletal Citations

Because of the size of the Court’s publication lag many of its own citations to prior decisions are temporary and incomplete. For example, in the last decision of the 2015 term, Voisine v. United States, the slip version of Justice Kagan’s majority opinion includes these case references:

  • States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2) followed by numerous short form cites of the same case, many with slip opinion jump citations
  • Armstrong v. United States, 572 U. S. ___ (2014)
  • Descamps v. United States, 570 U. S. ___ (2013)
  • Abramski v. United States, 573 U. S. ___, ___, n. 10 (2014) (slip op., at 18, n. 10)

Slotting Voisone into specific pages of a virtual volume 579 of the U.S. Reports or the first decision of this coming term into the beginning of volume 580 need not await completion of volumes 565 through 578. On other hand, because of the frequency of the Court’s self-citation, recent decisions cannot be put in final form without the reporter’s office working its way relentlessly forward through the existing backlog.

As noted above, once liberated from print production Nebraska’s reporter of decisions has been able to move through that state’s accumulated unpublished decisions with impressive speed. It should, perhaps, also be noted that while the U.S. Reports may be more years behind than were the Nebraska Reports when the Nebraska judiciary began work on that state’s electronic publication plan, measured in numbers of opinions the state’s challenge was greater. During the U.S. Supreme Court’s past term it rendered only 81 decisions of which 17 were per curiam, five of them one-liners. During calendar 2015 Nebraska’s appellate courts delivered 260 decisions to the state’s reporter of decisions for publication.

A Need to Take Electronic Publication More Seriously

Bound volume 563 of the U.S. Reports, running through June 6, 2011, has, since late June, been on a shelf in the Cornell Law Library. Meanwhile, the Supreme Court’s web site has not pushed past volume 561 (covering the end of the 2009 term). Undoubtedly, the two missing pdf files are held at the Court somewhere; they were prepared there. But which office has the responsibility for placing them online? Apparently, none has ever been charged with providing electronic access to the preliminary print versions of decisions, which in the current pattern of dissemination are the first to provide full citation information.

One development of the last term provides modest grounds for optimism. Having been called out in 2014 for the undisclosed post-release substitution of revised slip opinions, the Court’s web site has begun to note when such changes have occurred and to provide a means for determining the exact nature of the revision.

In today’s environment, reducing the time involved in bringing the Court’s decisions to print, whether preliminary or final, is no longer an important goal. Making them promptly available to the public, the legal profession, and the nation’s other courts in final citable form is and that requires a serious program of electronic publication.

Would Congressional Action Be Required?

Most of the steps outlined here could be taken by Supreme Court staff without legislation. Following Nebraska’s lead all the way to cessation of print law report publication would, however, require that Congress amend the U.S. Code to authorize electronic publication as an alternative to print rather than a faster complementary track. Last year the Nebraska legislature passed such a bill, prepared by the state’s judicial branch.

For now 28 U.S.C. § 411 requires that: “The decisions of the Supreme Court of the United States … be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition ….” In recent years the “as soon as practicable” proviso has effectively swallowed the mandate of prompt printing and distribution. Ironically, in light of present realities, the act of 1817, which first established the reporter position, required publication of the Court’s decisions “within six months of their rendering.” Fifty years ago, when judges and lawyers still looked cases up in books, bound volumes of the U.S. Reports appeared within a year of the last decision they contained.

The time is ripe for the U.S. Supreme Court (indeed, for the full federal judiciary) to devote serious attention to the altered landscape of case reporting.

 

California (Finally) Ends Automatic Depublication

June 20th, 2016

California’s intermediate appellate courts, the Courts of Appeal, produce approximately ten thousand written opinions each year. Fewer than one in ten are published. In most cases, the decision to publish or not is made by the deciding court applying criteria set out in Cal. Rules of Court 8.1105(c). Except where res judicata or related doctrines are involved, opinions that are not certified for publication may not be cited or relied upon by “a court or a party in any other [California] action.” Cal. Rules of Court 8.1115(a).  While the deciding court makes the initial call, the California Supreme Court can “depublish” an opinion even as it lets the lower court’s disposition of the case stand. Cal. Rules of Court 8.1105(e). During 2015 the court did so in a dozen cases. (It can also direct that a Court of Appeal decision be published, but that is a rare occurrence.)

In a year’s time the California Supreme Court receives nearly eight thousand petitions for review, agreeing to hear less than ten percent.  Prior to a rule change that takes effect on July 1, 2016, the high court’s decision to take a case automatically placed the opinion being appealed in the “unpublished” category.  Of course, in the modern era, this did not prevented the circulation of the previously “published” decision in print or online.  Indeed, all “unpublished” opinions of the Courts of Appeal are released to the public at a judicial branch website. But automatic depublication blocked citation of it and any subsequent judicial reliance.

This unique rule dates from a time when the California Supreme Court reviewed trial court decisions de novo, so that its agreeing to hear a case effectively nullified the prior opinion of the intermediate appellate court in the matter. A 1984 constitutional amendment altered that framework. Bar groups and judges urged that the depublication rule be revisited, but without success. Three decades later the California Supreme Court released a set of proposed amendments for public comment. With some modification those changes were adopted in June 2016, effective July 1.

After that date a grant of review by the California Supreme Court will no longer automatically remove “published” status from a Court of Appeal opinion. Under the revised rule, the Supreme Court can take that step but only upon an affirmative decision to do so. Even with that change, a grant of review does automatically affect the weight to be given the opinion by other California courts. Pending resolution of the appeal, the Court of Appeal opinion “has no binding or precedential effect.” It may be cited but only for its “potentially persuasive value.”

Chalk this up as a very modest reform. As Professor David Cleveland reports in the most recent issue of The Journal of Appellate Practice and Process, the last decade has seen a significant and steady shift in state rules governing “unpublished” or “non-precedential” decisions. His article counts seven states as having moved to permit citation of unpublished decisions, one as going the further step of granting them precedential weight, and five as having eliminated the “unpublished” category altogether. California’s change comes nowhere near such measures or even the situation in the federal courts under Rule 32.1 of the Federal Rules of Appellate Procedure. Perhaps, in another thirty years?

 

 

 

From Blue to Indigo to …

May 20th, 2016

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A New Citation Guide

A legal citation guide of a different hue, The Indigo Book, arrived on the scene this spring. Like the University Chicago Law Review’s Maroonbook, it was born of frustration over The Bluebook – but frustration of a very different kind.  The Maroonbook, first published in the late 1980s, still followed and revised by the University of Chicago Law Review, aimed to supplant The Bluebook’s complex and detailed dictates with “a simple, malleable framework for citation, which authors and editors can tailor to suit their purposes.”  In contrast, The Indigo Book, seeks to pry loose those very dictates, or at least the subset most important for participation in U.S. legal proceedings, from the intellectual property claims made by The Bluebook’s proprietors.

Working under the guidance of NYU copyright expert, Professor Christopher Sprigman, a team of students spent over a year meticulously separating the “system of citation” reflected in The Bluebook from that manual’s expressive content – its language, examples, and organization.  The Indigo Book is the result.  Like the ALWD Guide to Legal Citation, first published in 2000, it endeavors to instruct those who would write legal briefs or memoranda on how to cite U.S. legal materials in complete conformity with the system of citation codified in the most recent edition of The Bluebook while avoiding infringement of that work’s copyright.

Unlike the ALWD Guide, which competes with The Bluebook for a share of the lucrative legal education market at a similarly substantial price, this new entrant is free.  It can be viewed online or downloaded, without charge, in either of two formats – PDF or HTML.  As the work’s forward explains, providing “pro se litigants, prisoners, and others seeking justice but … lack[ing] resources … effective access to the system lawyers use to cite to the law” was, for its creators, an important goal.

Relatively few U.S. jurisdictions formally require that citations in court filings conform to the scheme set out in The Bluebook.  (I count one U.S. circuit court, a handful of U.S. district courts, and the appellate courts of eleven states.)  But Bluebook-compatible citations are consistent with the rules of most.  By removing price as a barrier and focusing on the legal materials most frequently cited in U.S. proceedings, this guide of a different color seeks to improve access to the nation’s judicial system.

Establishing a Space for Innovation

The Indigo Book is free in a second, more radical sense.  It has been released with a Creative Commons public domain dedication.  Anyone can copy and redistribute it.  Anyone can create new and different works based upon it.  No further permission from the creators or publisher is required.  The aim here is said to be the clearing of this zone, so important to our legal system, for further innovation.

From the very outset, The Indigo Book project has been both goaded and troubled by overbroad copyright threats and innuendo from The Bluebook’s proprietors and their attorneys.  (Carl Malamud, who has been central to the project and whose Public.Resource.Org is Indigo‘s publisher, tells the full lamentable story here.) By separating the widely used system of citation codified in The Bluebook from its particularized expression, The Indigo Book seeks to build a wall between such claims and the projects of future software and database developers and citation guide authors.

“Not Authorized by Nor in Any Way Affiliated with …”

Why indigo?  As discussed in an earlier post, the four law journals that publish The Bluebook hold registered trademarks in three variations of that name.  The Indigo Book was, for a time, going to be “Baby Blue.”  The law firm representing the Harvard Law Review Association demanded that the title be changed and that it not be replaced by one “consisting of or comprising the word ‘Blue’”While denying that “Baby Blue” posed any risk of trademark confusion or dilution, the creators of the new guide decided, nonetheless, to change its name rather than waste time and money on litigation.  Quite possibly they shared Isaac Asimov’s view:

It is customary to list indigo as a color lying between blue and violet, but it has never seemed to me that indigo is worth the dignity of being considered a separate color. To my eyes it seems merely deep blue.

What Are the Likely Prospects for the New Guide?

In legal education

The Bluebook is published by four law journals and commands the allegiance of nearly all law student-edited reviews in the country.  Due to the place of those reviews in law school culture, faculty members responsible for courses on legal writing are under powerful pressure to teach the “Bluebook” rules.  Over time that pressure induced the Association of Legal Writing Directors (ALWD) to bring that organization’s competing guide into complete conformity.  Like the new Indigo Book, the ALWD guide is better organized than The Bookbook itself and, on many points, clearer in explanation and illustration.  It, too, has saved space and maintenance burden by limiting itself to U.S. sources.  Even so, powerful network effects have limited its market share.  For The Bluebook is not merely manifest in the format of the citations it enables journal editors, legal academics, lawyers, and legal assistants to produce.  It also represents a matrix of rule numbers and tables that facilitates communication about and resolution of citation issues.  Biblical exegesis is characterized by reference to chapter and verse.  Law review debates over proper citation form refer to Bluebook rule numbers, tables, and text.  Even at the powerfully attractive price point of free, The Indigo Book will run up against the dependence of most citation discourse within America’s law schools, student-edited journals, and large firms on The Bluebook’s classificatory scheme and specific language.

As a Resource for “pro se litigants, prisoners, and others seeking justice”

In the form released the new guide is also unlikely to be of much aid to those navigating the legal system on their own.  By seeking to liberate the full system of citation explicated in 350 or so of The Bluebook’s pages, Indigo had, of necessity, to be far more detailed than any useful self-help guide should be.  Moreover, that detail incorporates numerous points on which The Bluebook reflects the undue influence of major publishers and many others in which is out of step with the evolving citation practice of lawyers and judges responding to the proliferation of electronic sources.

By placing their guide in the public domain, however, The Indigo Book’s creators have made it possible for groups preparing pro se handbooks, web site resources, and courthouse kiosks to draw upon it in preparing appropriately tailored citation guidance.  Other derivative work possibilities abound.  Bar groups or court systems may well be tempted to prepare citation manuals adapted to state-specific citation requirements and norms.  Citation software developers should be able to proceed without infringement fears. All of this is to be hoped for.

As the author of a free citation reference, now in its twenty-third year, I welcome The Indigo Book and all its future progeny.

Lessons the Federal Courts Might Learn from Westlaw’s Prolonged Data Processing Error

May 6th, 2016

The Thomson Reuters Errata Notice

On April 15, 2016 Thomson Reuters notified subscribers to its online and print case law services that a significant number of U.S. decisions it had published since November 2014 contained errors.

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Here and there words had been dropped.  The company explained that the errors had been introduced by software run on the electronic texts it collected from the authoring courts.  Thomson posted a list of the affected cases.  The initial list contained some 600 casesA week later it had grown to over 2,500 through the addition of cases loaded on Westlaw but not published in the National Reporter Service (NRS).  Two weeks out the list included links to corrected versions of the affected cases with the restored language highlighted.  The process of making the corrections led Thomson to revise the number of casualties downward (See the list’s entry for U.S. v. Ganias, for example.), but only slightly.

Thomson Reuters sought to minimize the importance of this event, asserting that none of the errors “changed the meaning of the law in the case.”  Commendably, Thomson apologized, acknowledging and detailing the errata.  It spun its handling of the processing error’s discovery as a demonstration of the company’s commitment to transparency.  On closer analysis the episode reveals major defects in the current system for disseminating federal case law (and the case law of those states that, like the lower federal courts, leave key elements of the process to Thomson Reuters).

Failure to View Case Law Publication as a Public Function

Neither the U.S. Courts of Appeals nor the U.S. District Courts have an “official publisher.”  No reporter’s office or similar public agency produces and stamps its seal on consistently formatted, final, citable versions of the judicial opinions rendered by those courts in the way the Reporter of Decisions of the U.S. Supreme Court does for the nation’s highest court.  By default, cemented in by over a century of market dominance and professional practice, that job has fallen to a single commercial firm (originally the West Publishing Company, now by acquisition and merger Thomson Reuters) to gather and publish the decisions of those courts in canonical form.  Although that situation arose during the years in which print was the sole or principal medium of distribution, it has carried over into the digital era.  Failure of the federal judiciary to adopt and implement a system of non-proprietary, medium-neutral citation has allowed it to happen.

With varying degrees of effectiveness, individual court web sites do as they were mandated by Congress in the E-Government Act of 2002.  They provide electronic access to the court’s decisions as they are released.  The online decision files, spread across over one hundred sites, present opinion texts in a diversity of formats.  Crucially, all lack the citation data needed by any legal professional wishing to refer to a particular opinion or passage within it.  Nearly twenty years ago the American Bar Association called upon the nation’s courts to assume the task of assigning citations.  By now the judiciaries in close to one-third of the states have done so.  The federal courts have not.

Major Failings of the Federal Courts’ Existing Approach

Delivery of Decisions with PDF Pagination to Systems that Must Remove It

Several states, including a number that produce large volumes of appellate decisions, placed no cases on the Thomson Reuters errata list.  Conspicuous by their absence, for example, are decisions from the courts of California and New York.  The company’s identification of the software bug combined with inspection of the corrected documents explains why.  Wrote Thomson it all began with an “upgrade to our PDF conversion process.”

The lower federal courts, like those of many states, release their decisions to Thomson Reuters, other redistributors, and the public as PDF files.  The page breaks in these “slip opinion” PDFs have absolutely no enduring value.  Thomson (like Lexis, Bloomberg Law, Casemaker, FastCase, Google Scholar, Ravel Law, and the rest) must remove opinion texts from this electronic delivery package and pull together paragraphs and footnotes that straddle PDF pages.  All the words dropped by Thomson’s “PDF conversion process” were proximate to slip opinion page breaks.  Why are there no California and New York cases on list?  Those states release appellate decisions in less rigid document formats.  California decisions are available in Microsoft Word format as well as PDF.  The New York Law Reporting Bureau releases decisions in htmlSo does Oklahoma; no Oklahoma decisions appear on the Thomson errata list.

Failure to Employ One Consistent Format

The lower federal courts compound the PDF extraction challenge by employing no single consistent format.  Leaving individual judges of the ninety-four district courts to one side, the U.S. Courts of Appeals inflict a range of remarkably different styles on those commercial entities and non-profits that must process their decisions so that they will scroll and present text, footnotes, and interior divisions on the screens of computers, tablets, and phones with reasonable efficiency and consistency.  The Second Circuit’s format features double-spaced texts, numbered lines, and bifurcated footnotes; the Seventh Circuit’s has single-spaced lines, unnumbered, with very few footnotes (none in opinions by Judge Posner).

In contrast the decisions released by the Michigan Supreme Court, although embedded in PDF, reflect a cleanly consistent template.  The same is true of those coming from the supreme courts of Florida, Texas, and Wisconsin.  Decisions from these states do not appear on the Thomson list.

Lack of a Readily Accessible, Authenticated Archive of the Official Version

By its own account it took Thomson Reuters over a year to discover this data processing problem.  With human proofreaders it would not have taken so long.  Patently, they are no longer part of the company’s publication process.  Some of the omitted words would have been invisible to anyone or any software not performing a word-for-word comparison between the decision released by the court and the Westlaw/National Reporter Service version.  Dropping “So ordered” from the end of an opinion or the word “Plaintiff” prior to the party’s name at its beginning fall in this category.  However, the vast majority of the omissions rendered the affected sentence or sentences unintelligible.  At least one removed part of a web site URLOthers dropped citations.  In the case of a number of state courts, a reader perplexed by a commercial service’s version of a decision can readily retrieve an official copy of the opinion text from a public site and compare its language.  That is true, for example, in Illinois.  Anyone reading the 2015 Illinois Supreme Court decision in People v. Smith on Westlaw puzzled by the sentence “¶ 3 The defendant, Mickey D. Smith, was charged in a three-count indictment lawful justification and with intent to cause great bodily harm, shot White in the back with a handgun thereby causing his death.” could have pulled the original, official opinion from the judiciary web site simply by employing a Google search and the decision’s court attached citation (2015 IL 116572), scrolled directly to paragraph 3, and discovered the Westlaw error.  The same holds for the other six published Illinois decisions on the Thomson list.  Since New Mexico also posts final, official versions of its decisions outfitted with public domain citations, it, too, provides a straightforward way for users of Westlaw or any other commercial service to check the accuracy of dubious case data.

The growing digital repository of federal court decisions on the GPO’s FDsys site falls short of the standard set by these state examples.  To begin, it is seriously incomplete.  Over fifty of the entries on the Thomson Reuters list are decisions from the Southern District of New York, a court not yet included in FDsys.  Moreover, since the federal courts employ no system of court applied citation, there is no simple way to retrieve a specific decision from FDsys or to move directly to a puzzling passage within it.  With an unusual party name or docket number the FDsys search utility may prove effective but with a case name like “U.S. v. White” retrieval is a challenge.  A unique citation would make the process far less cumbersome.  However, since the lower federal courts rely on Thomson Reuters to attach enduring citations to their cases (in the form of volume and page numbers in its commercial publications) the texts flow into FDsys without them.

The Ripple of the Thomson Reuters Errors into Other Database Systems

Because the federal courts have allowed the citation data assigned by Thomson Reuters, including the location of interior page breaks, to remain the de facto citation standard for U.S. lawyers and judges, all other publishers are compelled in some degree to draw upon the National Reporter System.  They cannot simply work from the texts released by their deciding courts, but must, once a case has received Thomson editorial treatment and citation assignment, secure at least some of what Thomson has added.  That introduces both unnecessary expense and a second point of data vulnerability to case law dissemination.  Possible approaches range from: (a) extracting only the volume and pagination from the Thomson reports (print or electronic) and inserting that data in the version of the decision released by the court to (b) replacing the court’s original version with a full digital copy of the NRS version.  Whether the other publisher acquires the Thomson Reuters data in electronic form under license or by redigitizing the NRS print reports, the second approach will inevitably pick up errors injected by Thomson Reuters editors and software.  For that reason the recent episode illuminates how the various online research services assemble case data.

Services Unaffected by the Thomson Reuters Glitch

Lexis was not affected by the Thomson Reuters errors because it does not draw decision texts from the National Reporter System.  (That is not to say that Lexis is not capable of committing similar processing errors of its own.  See the first paragraph in the Lexis version of U.S. Ravensberg, 776 f.3d 587 (7th Cir. 2015).)   So that Lexis subscribers can cite opinions using the volume and page numbers assigned by Thomson, Lexis extracts them from the NRS reports and inserts them in the original text.  In other respects, however, it does not conform decision data to that found in Westlaw.  As explained elsewhere its approach is revealed in how the service treats cases that contain internal cross-references.  In the federal courts and other jurisdictions still using print-based citation, a dissenting judge referring to a portion of the majority opinion must use “slip opinion” pagination.  Later when published by Thomson Reuters these “ante at” references are converted by the company’s editors, software, or some combination of the two to the pagination of the volume in which the case appears.  Search recent U.S. Court of Appeals decision on Lexis on the phrase “ante at” and you will discover that in its system they remain in their original “slip opinion” form.  For a single example, compare Judge Garza’s dissenting opinion in In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) as it appears on Lexis with the version on Westlaw or in the pages of the Federal Reporter.

Bloomberg Law appears to draw more extensively on the NRS version of a decision.  Its version of the Garza dissent in In re Deepwater Horizon expresses the cross references in Federal Reporter pagination.  However, like Lexis it does not replace the original “slip opinions” with the versions appearing in the pages of the Federal Reporter.  Examination of a sample of the cases Thomson Reuters has identified as flawed finds that Bloomberg Law, like Lexis, has the dropped language.  Casemaker does as well.

Services that Copy Directly from Thomson’s Reports, Errors and All

In contrast, Fastcase, Google Scholar, and Ravel Law all appear to replace “slip opinions” with digitized texts drawn from the National Reporter System.  As a consequence when Thomson Reuters drops words or makes other changes in an original opinion text so do they.  The Westlaw errors are still to be found in the case data of these other services.

Might FDsys Provide a Solution?

fdsys

Since 2011 decisions from a growing number of federal courts have been collected, authenticated, and digitally stored in their original format as part of the GPO’s FDsys program.  As noted earlier that data gathering is still seriously incomplete.  Furthermore, the GPO role is currently limited to authenticating decision files and adding a very modest set of metadata.  Adding decision identifiers designed to facilitate retrieval of individual cases, ideally designations consistent with emerging norms of medium-neutral citation, would be an enormously useful extension of that role.  So would be the assignment of paragraph numbers throughout decision texts, but regrettably that task properly belongs at the source.  It is time for the Judicial Conference of the United States to revisit vendor and medium neutral citation.

Citation Software

January 4th, 2016

Citations and Software – A Long and Vexed Relationship

Hat tip to the team responsible for Blueline (http://blueline.blue/), who suggested a post on the love-hate relationship between programmers and The Bluebook.

They have discovered, as others have before, how challenging it is to create software that will identify all the legal citations in a document and do something to or with them. The trail, dotted with patents and patent applications, is a long one, stretching back to the 1980s when a pair of Harvard Law School grads established a software enterprise they called Jurisoft. By 1986 Jurisoft’s offerings included CiteRite, list price $395, very likely the first successful PC program focused on the professional rather than business side of law practice. CiteRite would scan a brief for citations and generate a report enumerating all failures to conform to Bluebook format. In short order, Jurisoft was acquired by the parent company of Lexis. By 1990 the Jurisoft line included a companion program named FullAuthority, which to quote one reviewer had the “smarts” to do the following:

All you have to do with FullAuthority is tell it the name of the text file on your computer that contains the legal citations. It will zip through your document, tracking each legal citation like a bloodhound. When it has rounded them all up, it will organize them into groups. These groups may include cases (with separate categories for state and federal cases), statutes (with separate categories for state and federal statutes) and other authorities.

Together CiteRite II and FullAuthority comprised Jurisoft’s Citation Toolbox.  Their system requirements are a stark reminder of the computer environment of the early 1990’s:

IBM PC or compatible, MS-DOS 2.0 or higher, 250 kilobytes available memory, hard disk recommended

In the early 1990s both major online providers were moving toward hyperlinking some of the citations that appeared in their collections of judicial opinions, which, of course, required them (and all subsequent competitors) to have sophisticated inhouse tools for identifying and manipulating citations.

In time Word replaced WordPerfect as lawyers’ preferred word processing software and Dakota Legal Software brought out a Word add-on designed to compete with the Jurisoft programs. Lexis acquired its technology as well and folded it into the company’s Lexis for Microsoft Office. Today, that package, like the comparable Drafting Assistant from Westlaw, performs cite-checking, quote-checking, and citation linking in addition to format review and table of authorities compilation.

Both major vendors also have, included as part of their latest generation systems, a copy-with-citation feature purporting to furnish a properly formatted citation (in any one of numerous formats including the distinctive non-Bluebook variants employed in California. Michigan, and New York).  They were reviewed in an earlier post.

Citation tools operating outside and apart from Westlaw and Lexis continued to appear. Although maintenance of the CiteIt! software appears to have ended over a decade ago, the product’s features are still on display at: http://www.sidebarsoft.com/. Another product, CiteGenie, held its ground until WestlawNext’s copy-with-citation feature effectively supplanted it. And, for a time, Jureeka! offered those reading citation-filled documents on the open Web a browser add-on that would converted plain text citations into links. Now along comes Blueline.

Some Reasons for Programmers to Love The Bluebook

Whether designed to review a document for citation format compliance, to check a citator for authority undercutting cited decisions, or to compile a table of authorities, verify the accuracy of a quotation, or generate a link, citation software must first identify which of the diverse character strings found as it scans a document constitute citations and not addresses, part numbers, or radio station call letters. If citation format were uniform across the United States, if judges in federal and state courts and the lawyers submitting documents to them conformed their citations of authority to a common standard presented in a consistent format, the job would be an easy one. The Bluebook, with its claim to offer “a uniform system of citation” (a phrase its proprietors have trademarked), purports to be just that. And so it is within the universe of academic law journals. Complex though it may be, to the extent that the citations in U.S. law writing conform to The Bluebook the programmer’s job is relatively straightforward. To the chagrin of those attempting to construct citation-identifying algorithms, however, courts in the fifty U.S. states have quite diverse ideas about citation norms. Often they are focused narrowly on the legal authorities most frequently cited in cases coming before them. The Bluebook specifies that Indiana Code sections be cited in the format “Ind. Code § x-x-x-x” and those of the Idaho Code as “Idaho Code § x-x”, but when judges and lawyers in Indiana cite code provisions to one another they often cite to I.C. § x-x-x-x; just as those in Idaho cite to I.C. § x-x. Generally, the federal courts and those practicing before them take a less parochial view when citing state authorities, but they are far from consistent on some very basic points. The Bluebook has it that a provision in the Code of Federal Regulations should be cited: “x C.F.R. § xxx.xx (year)”. The U.S. Supreme Court favors “x CFR § xxx.xx” (no periods, no date) but is not followed on this point by most lower federal courts. (Those at Blueline claim their citation analysis suggests “that Republican appointed judges typically cite the U.S. Code as ‘USC’, whereas Democrat appointees prefer ‘U.S.C.'”) Approaches to compressing party names and citing treatises are all over the place.  The same holds for abbreviations of the several sets of federal procedural rules as cited in briefs and court opinions.

A citation reform movement of the last two decades has called for courts to break away from print-dependent case identifiers through the attachment of vendor and medium neutral citations to their decisions prior to release. Building on recommendations of the ABA, the American Association of Law Libraries (AALL) prepared a detailed implementation manual. It carries the title AALL Universal Citation Guide and provides a modern blueprint for uniformity. No surprise, several of the states adopting the new approach have deviated substantially from it. How does The Bluebook address the resulting lack of uniformity? Its Rule 10.3.3 instructs that “the requirements of the jurisdiction’s format should be observed.”

As the folks at Blueline put it “the approved and unapproved variations in Bluebook style create a huge hurdle for coders who rely on hard and fast rules.”  Weak force though it may be, The Bluebook does offer a template for citation recognition on which programmers can begin to build. Deviations from its “uniform system” can be then treated as special cases or alternatives.

Grounds for Programmer Frustration with The Bluebook

Were all judges and lawyers to follow The Bluebook meticulously, would programmers be satisfied? Not so long as its citation rules remain stuck in print-era conventions. Volume and page number are far less precise than “2015 IL 117090, ¶ 31” which points to a single paragraph (straddling a page-break) in a uniquely identified decision of the Illinois Supreme Court. Decided this past January, the decision only later received volume number and pagination in the National Reporter System. Yet The Bluebook directs the passage in question be cited by the latter formula (unnecessary, delayed, and less exact). Page numbers can even yield ambiguous results. A Blueline communique reports that “a query intended for Peate v. McCann, 294 F.3d 879 (7th Cir. 2002) accidentally pulled McCaskill v. Sci Management Corp., 294 F.3d 879 (7th Cir. 2002) because the latter opinion was only 44 words long.”

The Bluebook‘s deference to the major online services, particularly when dealing with the increasingly large pool of “unpublished” decisions, is another problem. A single decision is known as “2015 BL 377979” on Bloomberg Law, “2015 U.S. Dist. LEXIS 155224” on Lexis, and “2015 WL 7253819”.  Google Scholar and other public access sites have the decision but don’t know it by any of those designations. No citation parser can establish the identity of those references or match any of them to a non-proprietary version of the case. Situated as it is in the academy, a domain handsomely served by the major commercial systems, The Bluebook fails to address this problem adequately, and its deference to the commercial sector leads to a strong bias in favor of publisher-specific citations.

That same bias combined with The Bluebook‘s continuing attachment to print leads to rules for statutory and treatise citations that are not followed uniformly because in the current practice environment they simply cannot be.

(internal quotation marks omitted)

November 5th, 2015

The Bluebook Change

Hat tip to Eva Resnicow, aka Editrix Lex, who brought this Bluebook change to my attention.

Since the eighteenth edition, The Bluebook has included “(internal quotation marks omitted)” among the parenthetical expressions listed in Rule 5.2. That is The Bluebook rule addressing the broader question of how to signal any number of alterations a writer might make to a quoted passage. Similar parenthetical notices to be appended to citations as appropriate include “(emphasis added)” and “(citations omitted).” Prior to this year’s twentieth edition, The Bluebook itself provided no guidance on when a writer could or should omit internal quotation marks. It merely specified how to report their removal. However, a “Blue Tip” posted to The Bluebook site in 2010 addressed the “when to omit” question. In essence it called for the omission of internal quotation marks whenever the primary quoted material consisted entirely of an embedded quotation. “In all other cases,” the tip advised, “include all internal quotation marks.”

Although less clearly expressed, the twentieth edition has added comparable directions on when to omit internal quotation marks to The Bluebook proper. At the same time, it has removed the “(internal quotation marks omitted)” parenthetical from Rule 5.2’s roster. There is no ban on its use. The phrase has simply been deleted from 5.2, presumably, on the ground that it is unnecessary. Added to 5.2 is a new paragraph (f)(iii) which directs (as Bluebook editions reaching back as far as the fourteenth have advised) that a parenthetical identifying the source of the embedded quote be appended to the citation of the passage in which it appears. Arguably, that identification of underlying source provides adequate notice that the quotation is derivative. The revised rule is also as emphatic as the Blue Tip was before that interior quotation marks should be retained in any case where the embedded quote makes up less than the entirety of the primary quoted passage.

An Illustration of the New Rule’s Effect

A note published this past June in the Harvard Law Review contains the following passage, footnoted as shown:

Expansive though it is, the President’s enforcement discretion is not limitless. In the OLC’s analysis, legal constraints on nonenforcement derive ultimately from the Take Care Clause24 and are spelled out in a series of judicial opinions following a focal 1985 case, Heckler v. Chaney.25 The Opinion interprets this case law as standing for four general principles: (1) enforcement decisions must reflect “factors which are peculiarly within [agency] expertise”;26 (2) enforcement actions must be “consonant with … the congressional policy underlying the [governing] statutes”;27 (3) the executive cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities”;28 and (4) “nonenforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis.”29


24. See id. at 4 (locating the President’s enforcement discretion in his constitutional duty to “take Care that the Laws be faithfully executed” (quoting U.S. Const. art. II, § 3) (internal quotation marks omitted)).
26. The Opinion, supra note 3, at 6 (quoting Chaney, 470 U.S. at 831) (internal quotation marks omitted).
28. Id. at 7 (alteration in original) (quoting Chaney, 470 U.S. at 833 n.4) (internal quotation marks omitted).

Had this note been prepared and published under the twentieth edition, the parentheticals appended to notes 24, 26, and 28 would be gone. Observe that the passage appearing in clause (3) includes internal quotation marks. The marks that the author omitted are those showing that the quotation from the Office of Legal Counsel opinion, to which the “Id.” refers, was itself a direct quote from the Chaney decision. The retained marks appear in the quoted Chaney passage and are attributed in it to a D.C. Circuit opinion. (Bluebook Rule 10.6.2 provides that “only one level of ‘quoting’ or ‘citing’ parentheticals is necessary.” Note 28’s failure to identify the source of the embedded quote is, therefore, in compliance. Also in compliance is the parenthical in note 28 reporting that the alteration to the embedded quote appearing in Chaney originated with the Office of Legal Counsel opinion.)

Courts Quoting Themselves Quoting Themselves

Some courts, including the nation’s highest, remove internal quotation marks under circumstances in which the new Rule 5.2 (and the prior Blue Tip) would require their retention. For example, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Justice Blackmun’s dissent cites a prior decision of the Court as follows:.

Cf. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (“Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury”) (internal quotation marks omitted).

Id. at 592.

A portion, but only a portion, of the parenthetical quote (“whether there is a real and immediate threat of repeated injury”) was drawn from a still earlier decision of the Court, O’Shea v. Littleton, 414 U. S. 488 (1974). Per The Bluebook, that quote within a quote should have been wrapped in single quotation marks. However, this is judicial writing, not a journal article. Judges may well consider it far less important to separate out exactly which language quoted from a past opinion of their own court was in turn recycled from a prior one. They are likely, however, The Bluebook notwithstanding, to continue to feel an obligation to note the occurrence of such reuse with an “internal quotation marks omitted” parenthetical.

Courts Quoting Themselves Quoting Other Sources

The situation is markedly different when one judicial opinion quotes a prior one that rests on constitutional or statutory language. Being absolutely clear about that dependency argues for retaining the interior quotation marks, even when The Bluebook would trim them. Justice Thomas, dissenting in a 2015 case, Elonis v. U.S., 135 S. Ct. 2001 (2015), wrote:

For instance, in Posters `N’ Things, Ltd. v. United States, 511 U.S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to “‘make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,'” id., at 516 (quoting 21 U.S.C. § 857(a)(1) (1988 ed.)).

Since Thomas’s quotation from Posters ‘N’ Things consists entirely of language drawn from the U.S. Code, The Bluebook would omit the single quotation marks and rely on the “quoting” parenthetical to inform the reader of the ultimate source.

What Should Lawyers Do in Brief or Memorandum?

Negligible space is saved by trimming single quotation marks. Indeed, space is sacrificed and the word count increased if that trimming compels the author to add a four word parenthetical phrase. That suggests, at minimum, lawyers not be influenced by the judicial practice of occasionally removing internal quotation marks from quotes that rest within longer ones, no matter the ultimate source. Absolute clarity argues for including them even when The Bluebook considers them unnecessary. In no case should there be need for an “internal quotation marks omitted” parenthetical.

Make that “Advert.” not “Adver.”

October 6th, 2015

For nineteen years The Bluebook has decreed that when the word “Advertising” appears in a case name it should be abbreviated as “Adver.”  The pairing of word and abbreviation first appeared in the sixteenth edition.  The codification at once captured the then prevailing professional practice and encouraged use of that abbreviation over the two common alternatives.  Those were: 1) to include the word in full or 2) to abbreviate it to coincide with the British informal term, rendering it “Advert.”

Inexplicably, the latest edition of The Bluebook has added a terminal “t”, embracing an approach it rejected in 1996. Henceforward, all who follow its mandate must cite:

  • City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991)
    • as
  • City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365 (1991)

Why make the change?  Successive editions of The Bluebook have regularly added new “mandatory” abbreviations. The T6 list of the sixteenth edition had 120 entries. In the nineteenth there were 144, including an entry for “County” (to be abbreviated “Cnty.”). This latest edition is the first, in my memory, to substitute new abbreviations for established ones. In addition to supplanting “Adver.” with “Advert.” it has replaced “Cnty.” with “Cty.” Neither change addresses a source of potential confusion. Neither is driven by professional citation practice.

A failure to proofread? Implausible. The most likely explanation lies in the increasingly proprietary claims of The Bluebook enterprise. Faced with a better teaching book, the ALWD Guide to Legal Citation, and with data sources and software packages that purport to deliver citations that conform to its rules its editors made a number of arbitrary changes. “Copy if you dare,” they seem to be saying. For those operating within the universe of law journal publication such arbitrary changes may be hard to resist. With lawyers and judges, they’ll largely be ignored.

 

2015 version of Introduction to Basic Legal Citation released

October 1st, 2015

The latest edition of Introduction to Basic Legal Citation is now online at: http://www.law.cornell.edu/citation/  with conformed ebook versions at: http://access-to-law.com/citation/. For those wanting the convenience of a direct download to a Kindle or Kindle app, the updated work is also available through the Kindle store. Only the latter carries a charge – $.99, the minimum Amazon will allow.

This year’s revisions include description of a number of changes in The Bluebook‘s approach to core citation issues reflected in its 2015 edition, flagging those that lack any basis in the writing of lawyers and judges. As is true every year, the tables and pages identifying and illustrating jurisdiction-specific citation norms for cases, statutes, and regulations have been carefully audited and, where necessary, updated.

Aimed at those who write as practicing legal professionals or are learning to do so, this resource leaves coverage of the distinctive format requirements and myriad potential sources cited in academic writing to The Bluebook (BB) and ALWD Guide to Legal Citation.  It contains detailed information on how judges and lawyers cite core legal materials in each of the fifty states and the District of Columbia, furnishing examples, but none on how to cite statutes and regulations of the Czech Republic (BB at 353) or decisions of France’s Conseil d’État (BB 359).

As was true in years past, the revision process unearthed a number of policy issues that deserve discussion here. Some of them (such as how to cite Restatements) have already been addressed.

Bluebook (20th ed.) and Restatements, Model Codes, etc.

September 8th, 2015

Prior to publication of the new Bluebook, law journals, lawyers, and judges were in pretty close agreement on how to cite a Restatement section (e.g.Restatement (Second) of Torts § 46 cmt. j (1965) [as cited in the May 2015 issue of the Harvard Law Review] or Restatement (Second) of Contracts § 349, cmt. a (1981) [as cited in an Aug. 2015 decision of the Seventh Circuit]).  Journals put the titles in large and small caps.  Lawyers and judges didn’t.  Furthermore, consistent with their treatment of other static material, many lawyers and judges left off the date element.  In an era in which briefs are held to a maximum word count, why include the redundant “(1965)” or “(1981)”?  The Bluebook reflected that consensus.  Its prescribed formats for citations to provisions in Uniform Codes, Model Acts, the federal sentencing guidelines, and the ABA Model Rules of Professional Conduct were consistent with it.  See The Bluebook R. 12.9.5 (19th ed. 2010).

Without warning the 20th edition of The Bluebook changed that. Revised rule 12.9.4 would add a new component to all such citations – namely, the institutional source of the work.  The new rule requires that the date parenthetical include the source’s name, abbreviated.  That means adding “Am. Law Inst.” (3 words) to Restatement citations, “Unif. Law Comm’n” (3 words) to most Uniform Code citations but “Am. Law Inst. & Unif. Law Comm’n”  (7 words) in the case of the U.C.C., and “Am. Bar Ass’n” (3 words) to Model Rules citations.   To what end?  Does the additional element aid “the reader to efficiently locate the cited source”? The preface to the new edition simply notes the revision and makes vague reference to “citation principles”.  It furnishes no rationale.

The preface does, however, credit two individuals for “valuable advice and assistance in revising this rule”.  Their identities furnish a clue.  One is Richard Revesz, identified by The Bluebook as dean, as he was at N.Y.U. Law School from 2002-2013.  However, since 2014 Revesz has been Director of the American Law Institute or ALI.  The other individual, Professor Robert Sitkoff of the Harvard Law School faculty, is a member of the ALI Council (its governing board) and a Uniform Laws Commissioner.  I have little doubt that the two of them pressed for the attachment of the America Law Institute’s name to all Restatement citations, with equal treatment for entities issuing uniform laws, model rules, etc.  In a  process as opaque as that leading up to revision of The Bluebook and with law students as the ultimate arbiters, it is not surprising that Revesz and Sitkoff prevailed.  Had the proposed change been floated for public comment, it probably would not have survived.

Will the change stick?  Most if not all law journals will blindly implement the revision.  With its commitment to follow The Bluebook in lockstep the ALWD Guide to Legal Citation seems certain to as well.  Will lawyers and judges comply?  Even in those jurisdictions that purport to require that citations in briefs conform to The Bluebook, I have my doubts.  The revision has created a very interesting test of The Bluebook‘s influence on citation practice within the legal profession.