The twentieth edition of The Bluebook is out in time for sale to a fresh crop of 1Ls. This is the first of a series of posts that will explore how well that venerable guide addresses the conceptual and practical issues faced by lawyers, judges, and law students whose legal research and writing take place in a predominantly electronic environment. Like the citation reference to which this blog is related, the focus here will be on writing and citing in professional practice and not the norms that prevail in academic journal publication.
Where Have All the Treatises Gone?
Once upon a time legal treatises were produced in print (and only in print) by a wide array of publishers. West Publishing was one of them, but many treatises had no tie to a vendor of primary materials. Citation practice made that possible. The purchaser of a treatise published by West Publishing Company could use it with statutes published by the Michie Co. or law reports published by Lawyers Cooperative Publishing. The same “interoperability” enabled such companies as Little, Brown & Company, Warren, Gorham & Lamont, and Matthew Bender & Co. to publish highly successful treatises without having any involvement in the publication of primary authority. Law libraries could and did mix and match.
During the final decades of the twentieth century, through a series of acquisitions, Thomson Reuters, Reed Elsevier, and Wolters Kluwer gathered the works owned by those publishers into large treatise portfolios and placed them online. While most treatises can still be purchased and sustained through updates in print form, contemporary researchers are far more likely to encounter the likes of Nimmer on Copyright or American Law of Zoning in electronic format. In 2015 electronic format most likely means via the publisher’s online service, but not necessarily. Treatises in ebook form have begun to appear.
The Resulting Citation Challenges
When a researcher identifies a treatise passage she wishes to cite (in memorandum, brief, or opinion), should her citation indicate in which of that treatise’s multiple versions (print, online database, or ebook) she has found it?
Here are two examples, one each drawn from the Westlaw and Lexis treatise collections.
1) From a Thomson Reuters treatise
A search on WestlawNext for the zoning treatment of “adult” businesses might well lead to the following passage, copied directly from that service together with what it terms “standard” citation:
§ 29:7. Place regulation: defining and zoning adult businesses
In the wake of Renton, regulations governing the places where adult businesses may operate have been widely adopted by governments at both the state and local levels. These regulations, which apply to a range of adult establishments, must comply with various limitations to ensure that they are constitutional “place” regulations for protected speech.
3 Am. Law. Zoning § 29:7 (5th ed.)
According to Rule 15 of The Bluebook, three items are missing from this “standard” citation provided by Westlaw: the name of the author (currently, Patricia E. Salkin), the full title (American Law of Zoning) and the date.
I see from the publisher’s web site that updates to the print version were shipped in May 2015. The immediately previous update occurred in late 2014. Since the Cornell library does not have the fifth edition of this work, let alone its updates, in either print or in ebook form I must rely on the online version. It reports “Database updated May 2015”. If I were to cite the passage as if working from print, I would add the author whose name is provided online above the section text, expand the abbreviated title to full, and add a date, producing the following:
3 Patricia E. Salkin, American Law of Zoning § 29:7 (5th ed. 2014).
Because the print work is in looseleaf form and the updates come in the form of substitute pages, and I can see from the publisher’s site that the May update did not include new material for § 29:7 it’s not clear that I shouldn’t instead use the year of the 5th edition’s publication or that section’s most recent revision. The online version does not furnish that information so I’ll have to stick with “2015”. Or should it be “May 2015”?
Back to The Bluebook, despite contemporary reality it seems to assume that I’ll be working from print. I’ll not count the ways, but note that rules 15.1 and 15.3 refer to “the title page” and 15.9(c) speaks of the print version as being “authoritative”. Rule 15.9 warns against treating the online version of a book as interchangeable with the print. Rule 15(c) limits citation of an ebook version to works that are only available in that form.
Well, the practical difficulty for this writer and most others is that although this treatise is available to the world in three formats, I have feasible access to but one. Consequently, I can only cite to the Westlaw version. Rule 15.9 suggests that in that case I should recast my citation along these lines:
3 Patricia E. Salkin, American Law of Zoning § 29:7 (5th ed.), Westlaw (database updated May 2015).
If I, instead, had only the ebook version to work from, Rule 15.9(c) instructs that I report that by means of an “ebook” parenthetical.
2) From a title owned by Reed Elsevier
A LexisAdvance search on the same zoning topic leads to a paragraph that Lexis suggests should be cited as:
2-11 Zoning and Land Use Controls § 11.03
The proposed citation contains no author, edition, or date.
Using the online table of contents to climb back to the top matter of the work, I find both “Author(s)” and “Cite As” pages. The latter proposes that I cite this material in the following format:
Zoning and Land Use Controls, Ch. no., Title, § (LexisNexis Matthew Bender).
The former lists two authors: Patrick J. Rohan and Eric Damian Kelly.
The text I would cite shows a 2015 copyright notice and indicates by footnote that its text was the subject of a major revision by “General Editor, Eric Damian Kelly” in 2003.
I know that Dean Rohan died in 2009. A search for Eric Damian Kelly leads me to Ball State University, where he is listed on the urban planning faculty. Kelly’s CV describes his role with Zoning and Land Use Controls as “General Editor”. It’s not clear exactly what that means; perhaps that the treatise is being maintained by Matthew Bender editorial staff under Professor Kelly’s general supervision.
It is from such data scraps that one must construct a citation. As with American Law of Zoning I have no access to either the print or ebook version of this treatise, no idea what they display on their respective title pages.
Doing my best to apply The Bluebook‘s practitioner rules to this treatise section I would cite it:
2 Zoning and Land Use Controls § 11.03 (Eric Damian Kelly ed., 2015).
However, I confess to uncertainty whether this is the sort of editor role to which Rule 15.2 is addressed. And there is, again, the question of whether the database, “Lexis” in this instance, shouldn’t be noted.
How Real Lawyers and Judges Do It
Examination of a sizable sample of recent judges’ opinions and lawyers’ briefs that cite treatises yields these conclusions:
- No matter what The Bluebook says, print and electronic versions are treated as interchangeable.
- Citations of treatise sections that are almost certainly based on the online version invariably fail to say so. And there is, as yet, no trace of an acknowledged ebook citation.
- The year of most recent revision is generally, although not consistently, provided.
- Since briefs and opinions are focused on a specific matter and dated, a treatise citation can arguably drop the year of publication or most recent revision so long as it is referring to the most recent version of the text as of the date of writing. That is presumably the logic of citations like: 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.03.
- Whether or not the date is given, the edition is usually indicated (e.g., “4th ed.” or “rev. ed.”).
- Whether and, if so how, to credit subsequent authors or editors of treatises that still carry the name of a deceased author is a matter on which practice varies widely. In truth, so long as the title adequately identifies the work – Zoning and Land Use Controls, Powell on Real Property – it is hard to understand why the current editor need be named.
- The citation format furnished by publisher or online service for a treatise often prevails over The Bluebook when the two conflict.