Archive for the ‘Journal articles’ Category

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

Tuesday, 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.)

bjglj

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.

The Bluebook’s Inconsistency about When to Identify an Electronic Source

Friday, August 28th, 2015

The Issue

Most legal research in the U.S. is conducted using electronic source material, and for many types of cited works, primary and secondary, there are at least several possible sources.  A pervasive issue is whether a citation ought specify the source relied upon by the author or whether instead a generic citation, adequate to retrieve the cited work from all widely used sources, will suffice.  The latest edition of The Bluebook delivers inconsistent and, at times,  confusing guidance on the point.

Cases

Consider a brief that cites a slew of cases, state and federal.  If the author has retrieved them all from an online source (Westlaw, Fastcase, Google Scholar, an official court Web site) should her citations note that source?  A fair reading of The Bluebook (20th ed.) yields the conclusion that they need not.  Rule 10.8.1 authorizes, but does not require, citation to a specific database when “a case is unreported but available in a widely used electronic database.”  There is no suggestion that a citation to a “reported” decision (i.e. reported in print), such as State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015),  need state that the author relied upon Google Scholar or Fastcase or acknowledge that despite the use of volume and page numbers, she did not review the text in the print reporter to which they correspond. Similarly, a citation to State v. Ortega, 2014-NMSC-017, ¶ 55 is apparently complete without a notation clarifying whether the writer relied upon the official digital version available from the New Mexico Compilation Commission site or the altered version offered by Westlaw.  On this point The Bluebook‘s silence is in full accord with the citation practice of lawyers and judges.  The twentieth edition, like the nineteenth, appears to accept generic case citations.

Statutes, Constitutions, and Court Rules

What The Bluebook Says

Generic citations to a constitution or statutory provision are a different matter.  Rule 12.5(a) insists that when the writer’s source for a statutory code citation is an electronic database, the citation should include the name of the database, the publisher (unless a public office), and its currency.  Rule 11 lays down the same requirement for citations to constitutions even though it doesn’t call for identification of source if it is printed. (Presumably, one can be working from the U.S. Constitution as printed in The World Almanac and Book of Facts without confessing it.)  In contrast, rule 12.9.3 fully embraces citations to rules of evidence and procedure that leave off source, whether print or electronic.  Consistency in approach is lacking; no clear rationale for the different requirements is evident.

What Judges and Lawyers Do

When contemporary decisions of the U.S. Supreme Court or U.S. Court of Appeals cite provisions of the U.S. Copyright Act they refer to them by U.S. Code title and section number – no date (current provision being implied), no indication of source.  The odds are very high that the source relied upon by the judges or their clerks was Westlaw.  That being the case The Bluebook (rule 12.5) would call for a citation along these lines:

  • 17 U.S.C.A. § 301(a) (Westlaw through Pub. L. No. 114-49).

Instead the opinion will almost certainly cite the provision generically:

  • 17 U.S.C. § 301(a).

As will briefs submitted in the case.

Commentary

The Bluebook‘s strong stance on the primacy of print when citing treatises was the subject of a prior post.  Its position on law journal articles appears, at first, to be stated in similarly unequivocal terms.  Rule 16.8 requires that when “citing periodical materials to a database” one include “a citation to the database”.  But rule 18.2.1 (added with the nineteenth edition in 2010) provides that when an exact copy of a print source is available online it can be cited “as if to the original print source.”  That, of course, is standard professional practice with law journal citations.  Surely, such citations needn’t indicate whether the author retrieved the article in question from Lexis, Westlaw, HeinOnline or the journal’s own online archive.

The Rule that Should Swallow its Exceptions

The relationship between rule 18.2.1 and The Bluebook‘s various mandates to identify one’s actual source is unclear.  In all likelihood this is a case where the specific (the mandate concerning statutes, for example) is intended to prevail over the more general rule.  Both reflect the continuing grip of a print mindset, quite at odds with the world in which today’s lawyers and judges work.  Rule 18.2.1. itself carries a heading that refers to “the original print source.”  In truth the original source of nearly all print documents of the current era is electronic.  Rule 18.2.1(a)(iii) and rule 18.2.2(f) express an attachment to electronic material that is held in pdf format because it “preserves the pagination and other attributes of the printed work.”  Yet the information sources most heavily used by the legal professions, Westlaw, Lexis, Bloomberg Law, and the rest, scroll and hyperlink rather than page.  What is critical is that the source be reliably accurate and that it contain the accepted units of citation for the cited work, whether page, section, or paragraph numbers, and not that it look and behave like print.  Need it be an “exact copy” as rule 18.2.1 would seem to require?  On its face that would rule out all the online services that enhance decisions and statutes with parallel citations and other editorial tampering.  The Bluebook‘s level of unreality on these points can only be excused on the ground that it is prepared by students at four elite law schools and aimed primarily at the legal education market (list price $38.50).  Ironically, the proprietors now offer “the full content of The Bluebook” online (on a subscription basis – $36 for one year, $46 for two) and as an Apple ios app ($39.99).  Presumably, they intend these different formats to be viewed as interchangeable.  Believing it safe to rely on the authors for consistency, I don’t feel obliged to report which I relied upon in preparing this post.

What does the start of a new year mean in legal citation?

Tuesday, January 7th, 2014

A year change prompts reflection on the roles dates play in legal citation. I use the plural “roles” because of the diversity of functions dates serve in citations.  With some sources they are largely superfluous; with others, they are critical to retrieval.

Cases

As noted in a prior post, the full date of release is a crucial part of the identifying data for any unpublished opinion. Among the decisions released this week by the Second Circuit is one that should now and into the future be cited as: Wager v. Littell, No. 13-1683-cv (2d Cir. Jan. 6, 2014).

In all U.S. jurisdictions that have adopted systems of medium neutral case citation, the year of a decision is an integral part of its cite or retrieval tag. The decision, People v. Radojcic, 2013 IL 114197, would have been designated 2014 IL 114197, had it been released by the Illinois Supreme Court during the early part of 2014 rather than on Nov. 21, 2013. On Dec. 23, 2013, the Colorado Supreme Court released its opinion in People v. Cunningham, 2013 CO 71. Had it instead been the court’s first decision of this month it would have been 2014 CO 1. (Illinois and Colorado employ different systems of designating decisions rendered within the year.)

In a majority of U.S. jurisdictions, however, the year of a precedential decision is not critical for identification or retrieval. Nonetheless, it is routinely included as one element of a complete case citation. Thus, when a 2013 decision of the U.S. Supreme Court cites an earlier decision, that decision is identified as Trainor v. Hernandez, 431 U. S. 434, 443 (1977). Why include the year? “431 U.S. 434” provides all the information one needs to retrieve that earlier decision from any database or library shelf? The reason presumably is that knowing the year of a decision may help a reader to decide whether to look at it. It provides useful but not critical information.

Finally, it may be worth noting that the year incorporated within a decision citation is not the year that the case was compiled into a print volume or that the volume was finally published but rather the year the decision was issued.

Statutes

Citations to session laws generally include the year of enactment. Indeed, the year is often part of an act’s name. If the legislation has not been named, its full date will be employed for that purpose, as, for example, “Act of Dec. 9, 2013”.

What to do when citing to a section of a jurisdiction’s codified laws is bit of a puzzle. Should a year be furnished and, if so, what year? Now that the year is 2014 has section 110 of title 17 of the United States Code become 17 U.S.C. § 110 (2014)? Is that a function of the cutoff date of the writer’s source?

The most recent print version of 17 U.S.C. § 110 published by the Government Printing Office appears in a set denominated the 2012 edition. However, since that edition extends through the term of the 112th Congress it, in fact, includes laws passed and signed into law in the early days of 2013. The volume in which 17 U.S.C. § 110 appears was printed in 2013. Other volumes of the 2012 edition have yet to appear.  Westlaw doesn’t provide an “as of” date for this or other sections of the U.S. Code but it does report that the most recent amendment of this particular section took effect on April 27, 2005. Lexis represents that its version of the U.S. Code is “Current through PL 113-57, approved 12/9/13.” The LII notes of its version “Current through Pub. L. 113-52” without providing a date. However one interprets of The Bluebook’s prescription on this point, it definitely calls for some date to be appended to 17 U.S.C. § 110, in parentheses.

The more sensible approach, at least in legal writing produced by or for courts, is that followed by the U.S. Supreme Court. So long as an opinion of the Court is referring to sections of the code currently in effect, its citations include no date element. The lower federal courts follow the same practice as do most lawyers submitting briefs to federal courts. One also finds dateless statutory citations in the appellate decisions and briefs from such prominent states as California, Massachusetts, New York, Pennsylvania, and Texas.

Only when the provision being cited has, by the time of writing, been repealed or amended or has only recently been enacted does it become important to specify the date of a compilation that contains the language being cited. The precise form this takes will necessarily be governed by the form in which that compilation presents its cutoff date, and it ought to report the compilation date not the year that compilation appeared in print or online.

Regulations

The considerations bearing on citations to regulations appear very much the same. However, professional practice is less consistent. Justices of the U.S. Supreme Court and judges of lower federal courts will often include the year of compilation for a Code of Federal Regulations provision in an opinion’s first citation to it, leaving the year off all subsequent references. Arguably, for as long as annual print compilations constituted the principal source for codified regulations that approach furnished useful information. Today, with constantly updated compilations maintained not only by commercial online services but the Government Printing Office, it makes better sense for both writer and reader to understand that a citation in a brief or opinion to 37 C.F.R. § 205.22 refers to the provision in effect at the time of writing. With a section that has not changed since 2008, the addition of 2013 or, as of last week, 2014 in parentheses serves little purpose. For that reason many judges and lawyers would cite to 37 C.F.R. § 205.22 (or a state equivalent) without indicating a year, again, unless the litigation concerned an earlier version or the regulation in question has undergone recent change.

Commentary

Dates are far less precise and therefore less useful in citations to journal articles. Because publication delays are common with student-edited journals, numerous articles that failed to appear in 2013 will nonetheless carry that date.  Many destined to appear in 2014 last received attention from their author or an editor in 2013. Judicial opinions, legislative enactments, and regulations all carry specific release or effective dates.  Individual journal articles do not. Notwithstanding the imprecision and limited utility, attachment of the nominal year of publication to article citations is accepted practice.

The same holds for treatise  citations with greater reason and despite a further difficulty. Most major treatises have been acquired by an online research service and are bundled with the service’s primary law materials.  In both print and online form they are updated at least annually. In print, the updates may be integrated, the case with treatises published in a looseleaf format, or they may be issued in a separate supplement.  Online, they are integrated without any indication of what was changed or when. Under these circumstances, how should one date a section of A. Wright, A. Miller & M. K. Kane, Federal Practice and Procedure or M. Nimmer & D. Nimmer, Nimmer on Copyright in a brief or opinion prepared during 2014? Should that depend on whether one accessed the material in print or online? Assuming that one is citing to the current work rather than a prior edition or version, the best practice is to cite to the year of the most recent update or revision of the source relied on. Following that practice one would in January 2014 still use the year 2013 for both those works since they were last updated during that year, a fact noted in their print and electronic versions.

The updating phenomenon bestows greater importance on the date associated with a treatise citation. Unlike journal articles these are not static works. A reference to a particular section as it existed some years ago, 2004 say, or 1994, may well, if followed into the current version of the treatise, take the reader to significantly different text . The year accompanying the citation provides a reminder of that reality even though it may be difficult verging on impossible for those working in a contemporary research environment to determine exactly how the cited section read in 1994 or 2014. Neither Lexis (Nimmer & Nimmer) nor Westlaw (Wright & Miller) archive past versions of their treatises online as they do past statutory codifications.

Cite thoughtfully in 2014!