Archive for the ‘Bluebook’ Category

Citing the Code of Federal Regulations

Monday, December 11th, 2017

I. C.F.R. Versus e-CFR and its Progeny?

A. The Historic Print-Determined Timeline

Federal regulations pose the same fundamental citation question as do provisions in the United States Code. On January 18, 2017, important new and amended regulations governing the determination of disability benefit claims under the Disability Insurance and Supplemental Security Income programs were published in the Federal Register.

January 18, 2017

The changes took effect on March 27. The Federal Register for that very date contained a series of “technical amendments” cleaning up minor drafting errors in the January version of the text. Those corrections arrived just in time to beat the April 1st cutoff date for the volume of the 2017 print edition of the Code of Federal Regulations that contains Part 404 of Title 20. That is where the regulations governing these programs are organized. (The Code’s annual editions are published in four waves: “[T]itles 1-16 are revised as of January 1; titles 17-27 are revised as of April 1; titles 28-41 are revised as of July 1; and titles 42-50 are revised as of October 1.”)

In due course the volume containing all Social Security Administration regulations, as of April 1, 2017, was published by the Office of the Federal Register of the National Archives and Records Administration. In that physical form the new regulations, fully compiled and in context, made their way to Federal Depository Libraries, arriving in mid-September.

Date of Arrival: September 13, 2017

Following distribution of the printed volume, a digital replica in PDF was placed online as part of the Government Publishing Office’s Federal Digital System (FDsys).

The citation issue posed by that schedule is this: During the eight months that separated initial publication of these regulations from their appearance in a volume of the “official” Code of Federal Regulations (print and electronic) would it have been appropriate to cite them in accordance with the code location designations they carried from the moment of release? Take the revised 20 C.F.R. § 404.1521, for example. The pre-2017 version of that section dated from 1985. How should a legal memorandum written and filed in July 2017 have cited the text of the section by then in effect?

Citation norms, formed during the era in which the printed volumes of the Code of Federal Regulations and its companion, the Federal Register, were the only trustworthy means of accessing federal regulatory texts, would require citing such a recently revised provision to the Federal Register issue dated January 18, 2017, until the C.F.R. volume holding it could be inspected.

B. e-CFR and Derivative Compilations

Today the same public offices that publish the official Code of Federal Regulations also prepare and disseminate online a continuously updated version of the Code they call the “Electronic Code of Federal Regulations” or e-CFR. It lags the most recently published final regulations by a few days, at most.

On December 8, for example, all sections of the e-CFR were current as of December 6. As is true with the Office of Law Revision Counsel’s online version of the United States Code, the e-CFR can be downloaded in bulk (in XML). That makes it possible for all major online legal information services to offer comparably up-to-date versions of the C.F.R. In short, in the current research environment, the lawyer, judge, or legal scholar who would read, quote, and cite to provisions of the Code of Federal Regulations as they stand at the moment of writing has no excuse not to draw upon the e-CFR or one of its reliable derivatives. (The latter include up-to-date versions of the C.F.R. maintained by Bloomberg Law, Lexis, Westlaw, and Cornell’s Legal Information Institute (LII).)

II. Chronological Version as Distinguished from Source

A. Disambiguating Recently Altered Provisions

Unless the citation to a compilation like the Code of Federal Regulations or the United States Code indicates otherwise, it will be understood as pointing  to the cited portion as it stood at the time of writing. Recent regulatory (or statutory) changes to a provision are likely to require a parenthetical note to remove uncertainty about the reference. With a citation to 20 C.F.R. § 404.1521, for example, the reader will want to know whether the writer is invoking the section’s language before or after the 2017 revision. The writer may well also want to signal to the reader that she is aware of the change. On this score an initial citation reading “20 C.F.R. § 404.1521 (as amended in 2017)” or even “20 C.F.R. § 404.1521 (as amended, 82 Fed. Reg 5844, 5868 (Jan. 18, 2017))” is more useful than one that simply furnishes the year of the most recent official publication or the “as of” date of an unofficial version. On the other hand, a citation to 20 C.F.R. § 404.130, which was last amended in 1990, need carry no such baggage.

The existence of the chronological slices represented by the annual official versions does provide a ready means for citing to provisions as they once read. So long as the context makes it clear that the writer means to refer to the language of the section as it stood before the recent change, a citation reading “20 C.F.R. § 404.1521 (2016)” should suffice. But standing alone, one reading “20 C.F.R. § 404.1521 (prior to the Jan. 18, 2017 amendment)” provides a reader with more information. The GPO’s online archive of past C.F.R. editions, which reaches back to 1996, allows retrieval of no-longer-current regulatory texts on the basis of such references.

B. The Citation Manuals’ Requirement of a Date Element in All Cases

Rule 14.2(a) of The Bluebook calls for a C.F.R. citation to include the year of the cited section’s “most recent edition.” No exceptions. The mandate applies to a provision like 20 C.F.R. § 404.130 which has not been amended for over a quarter century. For a citation in a memorandum completed in July 2017, this rule would require  “20 C.F.R. § 404.130 (2016)”. A few months later, that, again per The Bluebook, would become “20 C.F.R. § 404.130 (2017)”. The Indigo Book, being limited in purpose to prying the citation system codified in The Bluebook out of its proprietary wrapper, takes precisely the same position. The ALWD Guide to Legal Citation (6th ed.) goes a step further and addresses the likelihood that the writer has relied on an online compilation more up-to-date than the once-a-year official edition. Acknowledging the e-CFR, it provides in Rule 18.1(c), that if one is relying on its version of the C.F.R. the citation should “indicate the exact date (Month Day, Year) through which the provision is current, and append its URL after the publication parenthetical.” If the writer has, instead, referred to a commercial service’s compilation, ALWD calls for the citation to take the form: “27 C.F.R. § 72.21 (Westlaw through Sept. 29, 2016)”. (The section in its example was last amended in 1995.) In the ordinary case, both are unnecessary.

C. How Federal Judges (and Lawyers Appearing before them) Cite the C.F.R.

With the exception of opinions of the U.S. Supreme Court do which include the year of the current volume in initial citations to the Code of Federal Regulations, the decisions of most federal judges cite its provisions generically. That is, so long as they are referring is to the language of a C.F.R. section currently in effect, they cite it without any indication of date or online source. See, for example, the citations in: Gorman v. Berryhill, No. 3:16-CV-05113 (W.D. Mo., Nov. 30, 2017); Trevizo v. Berryhill, 862 F. 3d 987 (9th Cir. 2017); and Cazun v. Attorney Gen., 856 F.3d 249 (3d Cir. 2017). Briefs filed by the U.S. Justice Department take the same approach.

D. The Publication Lag and Hoped-For Useful Life of Journal Articles May Legitimately Call for The Bluebook‘s or ALWD Guide‘s Approach

Generally, months pass between an author’s completion of a journal article and its eventual publication. Moreover, since publication delays are common, the date carried by the journal issue in which the article appears may or may not correspond to the actual date of its distribution. Finally, against the odds, the author may imagine the piece being read with care for years into the future. Arguably, these factors argue for attachment of an explicit statement of the “current as of date” to all cited statutory and regulatory code sections. At minimum their inclusion reminds an unknown, and perhaps distant, reader to check on whether subsequent amendments may have altered the force of the writer’s analysis.

In contrast, legal briefs and judicial opinions carry explicit dates of filing. So long as there is no indication to the contrary, those reasonably anchor an assumption that all citations to codified statutes and regulations they contain refer to the provisions in effect on that date.

How Should One Think about (and Cite) the U.S. Code?

Monday, December 4th, 2017

I. A Few Recent Changes to the United States Code (Virtual or Generic)

A. The Addition of a New Title

On September 1, 2017 the Office of the Law Revision Counsel, U.S. House of Representatives (OLRC), released a Title 34 of the U.S. Code. It contains no new law. All of Title 34’s provisions had been filed elsewhere in the Code, a fair number of them in the form of notes. The editors of the official code simply gathered the growing number of statutes dealing with “crime control and law enforcement” and organized them into this new location. The results are to be found at the Law Revision Counsel’s online edition.

The new title is also available in the constantly updated online editions of the U.S. Code offered by LexisNexis, Westlaw, and Cornell’s Legal Information Institute (LII). In dramatic form this poses the question: How should one think about and cite to a provision of the U.S. Code or any of its state counterparts? Is it appropriate to use the new code architecture and cite a 2001 law authorizing the Justice Department to develop and support computer forensic laboratories as “34 U.S.C. § 30102”? (It was previously stashed in a note to 28 U.S.C. § 509.) If not now, when will it be?

B. The Addition of New or Amended Provisions

The same question is posed less starkly each time a new statute of general and permanent applicability becomes law. On August 23, 2017 the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, became law. It amended numerous sections of Title 38 of the Code, one of the 37 titles that Congress has enacted into positive law. Two of the amended provisions are subsections (e) and (f) of 38 U.S.C. § 5103A. Although enacted those changes do not take effect immediately. (That is to happen only “on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs ….”)

Five days earlier Pub. L. No. 115-50 amended Section 3 of the DNA Analysis Backlog Elimination Act of 2000, which had been codified by the Law Revision Counsel in Title 42, one of the non-positive law titles, as 42 U.C.C. § 14135a. With the establishment of Title 34, however, that section including the amendment moved to 34 U.S.C. § 40702.

These changes were swiftly incorporated by the Office of Law Revision Counsel into its online version of the Code. (See its pages for 38 U.S.C. § 5103A and 34 U.S.C. § 40702.)  Following standard practice, 38 U.S.C. § 5103A contains notice of the delayed effective date of the 2017 amendments in an appended note.  From the OLRC site the titles, as revised, were picked up and incorporated immediately into the federal statutory compilations maintained by the major online legal information providers. (See, e.g., the LII’s versions of  38 U.S.C. § 5103A and 34 U.S.C. § 40702.) The OLRC offers bulk downloads in a range of formats (XML, XHTML, PCC, and PDF) to facilitate this rapid republication.

II. Their Delayed Appearance in the United States Code (Physical)

The compilation maintained by the Office of the Law Revision Counsel (OLRC) and available online to both the general public and law publishers is the ultimate source for a set of books put out by the Government Publishing Office (GPO). Every six years the OLRC publishes and the GPO prints a fresh edition.

United States Code (2012 edition)

The next edition to appear will carry a 2018 date, but it will not be produced and delivered until well into 2019 and 2020. In between editions there are annual supplemental volumes. They cumulate all changes made up to their cutoff date. The changes noted above will be contained in Supplement V to the 2012 edition of the code likely to be available in late 2018. Volumes and the annual supplements are produced sequentially so that titles with lower numbers and supplements to them appear in print sooner than, say, Titles 34, 38, or 42. As the print volumes are produced an electronic replica in PDF is placed, with authentication at the GPO website, in its FDsys (Federal Digital System) collection. Unlike their print counterparts, these files do not separate statutory text and notes into core volume and cumulative supplement. When the 2017 version of Title 38 appears at the FDsys site in late 2018 it will contain the full title as amended through the beginning of the year.

Authentication of Supplement IV Containing Title 38

III. Ought One to Cite to the Virtual or Generic United States Code?

A. What Do the Leading Manuals Say?

Citation manuals also appear in periodic editions.  This fall brought a new, sixth edition of the ALWD Guide to Legal Citation. (More on this Bluebook competitor in a later post). Tracking the fifth edition it states in Rule 14.1:

Federal statutes are cited either to the official print version of the United States Code (preferred, although it is rarely up to date …) or to the authenticated online version of the code in the Government Publishing Office’s Federal Digital System (“FDsys”)…. Cite an authenticated federal statute in FDsys the same way you cite it in print.

Like The Bluebook, which it essentially mimics on this point and most others, the ALWD guide appears to forbid citation to any of the revised portions of the Code noted above in the format “__ U.S.C. § __” until they have been published by the government in print or the authenticated digital replica. In the interim, for new law, citations to print session laws (or presumably their digital counterparts) are preferred. For a revised packaging of prior law, such as the new Title 34, guidance is less clear. Neither manual has adjusted to the availability of a continuously updated version of the code directly from the public body responsible for its publication.

B. What According to Prevailing Professional Usage Does a “U.S.C.” Citation Represent?

Some time ago, in discussing whether The Bluebook‘s copyright extended to the system of citation it codified, I cited 17 U.S.C. § 102(b), which reads:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Does the citation of “17 U.S.C. § 102(b)” as the source for that passage represent that I reviewed its text in the GPO print publication or on FDsys? Both the Bluebook and ALWD Guide appear to say so.  (Had I used Westlaw as my source they would have the cite read “17 U.S.C.A. § 102(b)”.) My intention and, I would argue, the widely understood meaning of the form of my citation was only to identify the location of the quoted passage in any of the many reliable, up-to-date versions of the Code.

In addition to their attachment to print the two academic citation manuals reflect the continuing strong influence of Thomson Reuters and Reed Elsevier. Both manuals allow citation to those companies branded versions of the United States Code (U.S.C.A. and U.S.C.S.) as a fallback. The ALWD Guide to Legal Citation explicitly places them ahead of named commercial alternatives (including Bloomberg Law and Fastcase) and ignores the leading noncommercial source (LII). On what grounds? Revealingly neither mentions the OLRC’s online version of the code on which all others are based.

C. The Use of “U.S.C.” as a Generic Reference

Long ago when the only statutory compilations were those published in print, alternatives could be counted on a few fingers, and publication lag was substantial and varied among them, a requirement that a statutory citation reveal which version the writer had relied upon was defensible. No longer. In 2017 “U.S.C.” amounts to a generic designation, almost certainly employed by the reader to find the cited provision not in the GPO book but in some online database, very likely one different from that used by the writer. Federal judges whose opinions reveal their reliance on Westlaw by the prevalence of “WL” citations to “unpublished” cases cite the Code generically.

D. Brand Reinforcement as a Vestigial Counterforce

A subscriber to Bloomberg Law who takes advantage of its “copy with citation” feature receives that citation in generic format, “__ U.S.C. § __”.  However, a Westlaw subscriber using that service’s “Copy with Reference” feature is furnished a “U.S.C.A.” citation, and “advanced copy” on Lexis cites the same section to “USCS”. Because of such “citation assistance” and the durability of citation habits forged in the print era, citations to those two commercial compilations still appear occasionally in briefs and judicial opinions. Rarely are they used selectively, i.e., limited to provisions not yet available in the print United States Code. Typically, a judge or lawyer who cites to U.S.C.A. or USCS today does so throughout a brief or opinion. See, e.g., HSP v. JK, 223 N.J. 196 (2015), Bank of America, NA v. Camire, 2017 ME 20.

IV. Indicating Chronological Version as Distinguished from Source

When Congress has injected new law into a positive law title of the Code or passed new law that the Office of Law Revision Counsel has compiled into one of the non-positive law titles and when the OLRC has gathered existing statutes into a new title, it is critical that a U.S. Code citation not generate confusion. Does it refer to the Code as it stood before or after the change? In most lawyering settings, a citation to the Code carries the implicit representation that the writer is referring to the Code as it stood when the brief was submitted or the opinion written. (Journal articles, the prime concern of The Bluebook and ALWD Guide to Legal Citation, carry no such clear “as of” date and therefore pose a greater risk of version uncertainty.) A citation to 34 U.S.C. § 30102 will frustrate any reader looking for the section in the GPO’s print or online version of the code. On the other hand, when entered in Google or any of the major online databases it will yield results. The exceedingly cautious writer can add an explanatory parenthical such as “(Prior to the 2017 codification of Title 34 this section appeared as a note to 28 U.S.C. § 509.)”

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.


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.)


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.

From Blue to Indigo to …

Friday, May 20th, 2016


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.

Citation Software

Monday, January 4th, 2016

Citations and Software – A Long and Vexed Relationship

Hat tip to the team responsible for Blueline (, 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: 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)

Thursday, 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.”

Tuesday, 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

Thursday, October 1st, 2015

The latest edition of Introduction to Basic Legal Citation is now online at:  with conformed ebook versions at: 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.

Tuesday, 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.

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.


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.


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.