Archive for the ‘Bluebook’ Category

2014 edition of Basic Legal Citation released

Friday, October 31st, 2014

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 (for $.99, the minimum Amazon will allow).

Changes in the 5th edition of the ALWD guide, published this past spring, compelled substantial revision.  In addition, this 2014 edition expands the coverage of state rules that deal with both citation and quotation of primary legal materials in court filings.  By specific request, rules specifying the content and organization of a brief’s table of authorities are now included.

Importantly, this latest edition also notes the first traces of citation rules that reflect the desire of courts receiving electronic filings to have their references to the case record structured so that they can be linked directly to the cited portion in their document management system.

As was true last year, the revision process uncovered a number of citation policy issues that warrant discussion here.

 

Using “The Bluebook®©!#%” without a license

Wednesday, June 18th, 2014

In a prior post I reported on the erasure of all prior differences between the citation style set forth in the ALWD Guide to Legal Citation and that prescribed by the work entitled “The Bluebook: A Uniform System of Citation.” Here my focus is on trademark and copyright issues that bear on the competition between these two citation manuals and influence how other works, print and electronic, address issues of legal citation.

bluebook

1. “The Bluebook” – A registered mark

Since 2010 the proprietors of the The Bluebook have held a registered trademark in its name. Actually “THE BLUEBOOK”, “THE BLUEBOOK ONLINE”, and “THE BLUEBOOK A UNIFORM SYSTEM OF CITATION” are now all registered “standard character marks.” The cover of that manual’s most recent edition has the “®” symbol immediately following the word “Bluebook”. So does its title page.

There are, of course, myriad books of a similar name reaching back several centuries. There are also numerous registered marks that include “Bluebook” or “Blue Book”.   As applied to a legal citation style guide, however, the phrase is surely indicative of a particular source. And while book titles cannot be registered with the Patent and Trademark Office, works of a series (think “Nancy Drew”, the “For Dummies” books, or closer to home “Williston on Contracts”) are registrable. There seems little doubt that successive editions of The Bluebook qualify. But what does that mean for the publisher of an ALWD guide that wants the relevant market to know that citations prepared in accordance with its instruction will conform in every particular to those prepared following The Bluebook’s rules and appendices.

It is fact that within its 608 pages this new ALWD Guide to Legal Citation makes absolutely no reference to The Bluebook. A cover-to-cover search for that phrase comes up dry. Extreme caution over infringing The Bluebook mark? Unlikely. In all probability this reflects a strategic choice. It may rest on the premise that naming the competition could be taken as a sign of weakness and a conviction that there are other effective ways to draw attention to this new guide’s relative merits. After all, the prior ALWD edition only mentioned that other manual once (to warn users of differences between the two). Outside the pages of this new edition, the publisher can and does draw attention to the removal of all differences between ALWD style and The Bluebook’s, naming the latter.

Comparative advertising that names a trademark-protected competing brand does not infringe the mark so long as it does not “cause confusion as to source” (“Same Sweetener AS EQUAL…. At A Sweeter Price”). See Cumberland Packing Corp. v. Monsanto Co., 32 F. Supp. 2d 561, 580-81 (E.D. N.Y. 1999).

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The largest segment of the market for both works is located in law school student bodies. And within that segment the choice between the two is, in nearly all cases, made by writing faculty or journal editors who, by adopting one or the other, effectively instruct students which to buy. ALWD needn’t put the phrase “The Bluebook” on or in its guide to put its marketing case in front of those intermediaries. Indeed, it is produced under the auspices and direction of the national association of those who teach legal writing.

What about the host of “Bluebook” study aids or software capable of delivering “Bluebook” compatible citations? Can they use its name in communicating what they offer directly to law students, legal academics, and lawyers? Yes, but they need to take greater care to prevent consumers from believing that The Bluebook’s proprietors have reviewed or vetted or authorized their work.

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Hein publishes a small book that used to be called User’s Guide to the Bluebook. The title now has a large “®” appended. The brochure advertising this work is riddled with that symbol and concludes with a footnote reading: “*The Copyright holder’s [sic] of The Bluebook did not contribute to, review, approve, or endorse The User’s Guide to The Bluebook.” Effective, but overkill. Compare the restrained treatment of the trademark status of Microsoft’s spreadsheet software in the guide entitled Excel 2013 for Dummies. On the other hand, Carolina Acadmic Press publishes Understanding and Mastering The Bluebook by Linda J. Barris. Neither its cover nor its front matter acknowledges The Bluebook trademark, identifies the holders, or contains a statement that it has not been reviewed or endorsed by them. That is very likely an oversight.

Over several years Professor Frank Bennett of Nagoya sought to secure assurance that building a software module capable of taking citation elements held in a database and (as one of several options) producing citations consistent with Bluebook style, identifying that style by the name with which we all know it, would not infringe. He was rebuffed. Patience exhausted, Bennett has decided to call the output of his module “the MLZ Bluebook Style” and describe it as “an unauthorized implementation of ‘The Bluebook: A Uniform System of Citation’”. Accurate. Unlikely to produce consumer confusion.

nissan_altima

A final point. Since the target of the federal trademark act is consumer confusion over the source of goods or services sold in commerce, those of us who write about citation norms and style guides need not place an “®” next to “The Bluebook” or otherwise acknowledge the book title’s trademark status whenever we write about it and its contents, any more than an auto reviewer need do so when describing the 2014 Nissan Altima.

2. What about copyright and The Bluebook’s contents?

Like prior editions The Bluebook’s nineteenth displays a copyright notice. It reads: “Copyright © 2010 by the Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal.” A review of U.S. Copyright Office records establishes that the book has been registered.

Disturbed by the treatment of Frank Bennett (recounted above) Carl Malamud proceeded down a more confrontational path. Last June he sent copies of a complete electronic replica of The Bluebook to several legal academics, and placed a small portion online. In doing so, he asserted that since several U.S. courts require that all citations in briefs or memoranda conform to The Bluebook its rules were (or ought to be) in the public domain. These actions drew a prompt response. A lawyer representing one of The Bluebook’s owners requested that Malamud cease distributing full copies of the guide and immediately take down the portions he had placed online, at the same time promising serious consideration of the access issues he raised. That process of “serious consideration” continues. In May Malamud received another letter. It represented that the book’s proprietors were “evaluating potential arrangements that would expand the availability of The Bluebook conventions, while at the same time, preserving the law reviews’ copyright interests and decades-long investment in The Bluebook.”

Note the distinction. Malamud’s response picked up on it at once. The citation conventions (or style or system) described in The Bluebook are not protected by its copyright. The U.S. Copyright Act is explicit on this point:

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.

17 U.S.C. § 102(b).

On the other hand, although the phrase “literary work” may not seem totally apposite The Bluebook is surely an “original work of authorship … fixed in [a] tangible medium of expression.” So long as a competing work (the ALWD Guide to Legal Citation or Introduction to Basic Legal Citation, for that matter) avoids employing the specific means used by The Bluebook to explain how to cite (e.g., its words, phrases, selected examples) that work can instruct readers on how to produce citations identical to those generated by careful use of The Bluebook. The same holds for citation software or online data vendors. Both Lexis Advance and WestlawNext generate citations that are included with material copied from their collections. Users have a choice among several different formats. “Bluebook” style appears on neither list, the default format for both being labeled “Standard”. Yet for important categories of material the “Standard” format that both produce conforms to the conventions set out in The Bluebook. Can these and other online data vendors deliver Bluebook citations without the permission of the book’s copyright holder? Surely, they can even though the reference book itself is covered by copyright and the distribution of verbatim copies is, for that reason, problematic.

3. The terms and conditions of use agreed to by users of The Bluebook Online and related aps

Those who click rather than page their way into the content of The Bluebook at www.legalbluebook.com are told that by doing so they agree not to display its trademarks without prior written approval or “create derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit the information …[it contains], in whole or in part.” Apparently, while those that run The Bluebook enterprise take the IP rights represented by the circled “C” and circled “R” very seriously, they are not content to leave their proprietary claims to the contours of copyright and trademark law.

4. And who holds these IP rights with the right to license their use or sue for infringement?

There is no Bluebook Inc. The Bluebook‘s copyright notice and registration list four separate entities as owners: the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The same four appear on the trademark registration. Without knowing more about the agreements among these co-owners one can only speculate about how decisions might get made or, more likely, fail to get made.

Who at each of the four was responsible for deciding what to do with Frank Bennett’s email asking for assurance that his software wouldn’t infringe? Did his question even get beyond one.  Three of the journals are published by non-profit corporations.  The fourth, The University of Pennsylvania Law Review, is simply a university activity. Professor Bennett wrote one of the journals and heard back, ultimately, from one of its editors. Are such decisions really lodged in the hands of here-today, gone-tomorrow law students?

One intriguing possibility is that the governing body for any one of the four journals could license The Bluebook, that being the default rule with joint works of authorship. Could a venture guided by so many lawyers and soon-to-be lawyers have left the matter in that posture? On the other hand, if the four must come to an agreement among themselves when confronted with a Bluebook rights or licensing issue, the representation that “The law reviews are evaluating potential arrangements that would expand the availability of The Bluebook conventions ….” seems unlikely to yield results anytime soon.

The ALWD Guide Capitulates

Tuesday, May 13th, 2014

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The fifth edition of the ALWD Citation Manual was published this past month, renamed the ALWD Guide to Legal Citation and stripped of the previous subtitle “A Professional System of Citation.” That event warrants attention here. This post is the first but probably not the last commenting on this latest version of what has been an important citation reference and teaching book. (In view of the name change I’ll refer to it hereafter as the ALWD guide rather than switching back and forth between “manual” and “guide.”)

The obvious place to begin is with the work’s final capitulation to The Bluebook. The publisher’s description highlights this edition’s elimination of “stylistic differences between the ALWD Manual and the Bluebook, to help combat the perception that students who learn citation with ALWD do not know how to ‘Bluebook.’

 1. Editions 1 through 4

When first introduced in 2000, the ALWD guide offered an alternative approach on numerous issues of style. Fundamentally it set forth a “single and consistent set of rules for all forms of legal writing.” It rejected The Bluebook’s “separate and inconsistent systems” for academic writing and professional writing in the form of memoranda and briefs. Its citation rules were derived, it said, from professional consensus. Finally, reflecting the reality that in the world of law practice rules and practices specific to a jurisdiction often trump academically proclaimed “uniform” rules, it included an appendix detailing “local citation rules or preferences.” The subtitle accurately reflected this professional perspective.

The original ALWD guide didn’t allow itself to be trapped by The Bluebook’s inconsistencies. When the citation practice in some jurisdictions or courts offered a less cumbersome format than The Bluebook prescribed, the 2000 ALWD guide felt free to embrace it. ALWD members and fans of its guide were not content with securing its adoption by legal writing faculty. They sought to persuade law journals to adopt its style. They lobbied courts whose rules mandated Bluebook compliance to accept ALWD style as an alternative. In both respects they realized some success, although, no doubt, less than they had hoped for.

ALWD’s second edition (2002) maintained this independent stance. By the third (2006) the hope of winning over a critical mass of law journals had been relinquished, and consistent typeface conventions disappeared. For the first time the guide offered instruction on where and how to use large and small capital letters when “working with a journal or publisher that requires you to use this convention.” It also yielded on the typeface to be applied to statutory titles (“ordinary” rather than the “italics” called for by editions 1 and 2). The fourth edition (2010) brought further erosion. From the beginning the ALWD table of case name abbreviations had eschewed contractions. In the fourth edition for every word The Bluebook abbreviated with a contraction, the ALWD guide now offered that contraction as an alternative, coupled with the advice that if the writer chose to use contractions they should be used “consistently throughout the paper.” But on any number of other points ALWD style remained distinct.

No longer. Those few journals that call for the citations in article submissions to be formatted in ALWD style and state rules of procedure (like those in Alabama and Idaho) that specify ALWD style as a Bluebook alternative have been rendered dead letter. Why the complete surrender? Pressure from the guide’s main market segment and constituency, law students and those who teach them. The preface to the fifth edition explains (without once naming The Bluebook): “Feedback from membership surveys pointed to the staying power of certain scholarly traditions in legal citation and urged that ALWD modify its rules to acknowledge those traditions.” In the fifth edition, the publication’s ambition appears reduced to doing a better job than The Bluebook of delivering Bluebook content.

2. Positions Surrendered

What are some of the points on which ALWD has given up its distinct, reasonable and professionally grounded position?

a. Appellate court abbreviations

A simple one concerns the abbreviation for a state’s intermediate appellate court to be used when the cite itself does not identify the court. For example, the writer wishes to cite a decision of the Florida Court of Appeals, the Minnesota Court of Appeals, or the Texas Court of Appeals using its volume and page number in the National Reporter System. Per The Bluebook that is done as follows: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. Ct. App. 2007). Before the fifth edition the ALWD work took the sensible position that “Ct.” was unnecessary and instructed that the citation be written: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. App. 2007). Several considerations commend that approach not the least of which is that Minnesota courts and lawyers employ that style. Jurisdictions that have implemented print-independent or neutral citation schemes along the lines recommended by the A.B.A. and the American Association of Law Libraries use the state abbreviation and “App” to designate decisions of intermediate appeals courts. Nor do they stand alone. In their citation practice any number of courts and lawyers employ the more economic “Fla. App.”, “Minn. App.”, and “Tex. App.” Sadly, the fifth edition of ALWD has abandoned that approach. Stripping unnecessary elements or characters from citations is always desirable.

b. Treatment of the Federal Appendix reporter

Another unfortunate point of Bluebook merger is on the abbreviation to be used in citations to that ridiculous reporter of “unreported” decisions, the Federal Appendix. The publisher’s abbreviation for this series is “Fed. Appx.” and that is how past editions of ALWD had it. Knowledgeable Bluebook users know that it favors “Fed. App’x”. A citation which The Bluebook would have be written, Robinson v. Allstate Ins. Co., 508 Fed. App’x 7 (2d Cir. 2013), ALWD and the publisher formatted as Robinson v. Allstate Ins. Co., 508 Fed. Appx. 7 (2d Cir. 2013). Although this is a point of style on which the federal courts are themselves divided, a search of recent federal decisions uncovers a preference for “Fed. Appx.” of over two-to-one. Appealing the matter all the way to the top, one discovers that the Supreme Court consistently employs “Fed. Appx.” There is no justification other than conformity for the ALWD guide to yield on this point.

c. Use of contractions in case names

The Bluebook’s use of “App’x” rather than “Appx.” reflects a general attachment to contractions. They dot its list of abbreviations to be used in case names – “Ass’n” for “Association”, Comm’r for Commissioner, Dep’t for Department, Eng’r for Engineer, Fed’n for Federation, Int’l for International, and so on. As noted above, prior to the fourth edition, the ALWD guide’s abbreviations contained no apostrophes; all ended with periods (e.g., Engr. and Intl.). The fourth edition authorized use of contractions as an alternative (e.g., Engr. or Eng’r, Intl. or Int’l). This new fifth edition specifies contractions wherever The Bluebook does without an alternative. Where The Bluebook takes an inconsistent approach (“Envtl.” rather than “Envt’l”) ALWD now follows. Such slavish conformity cannot be justified in terms of uniformity of professional practice, for in this area, most especially, citation norms vary enormously.

d. Internet materials

In its coverage of materials available on the Internet ALWD’s fourth edition called for the URL to be placed in parentheses and for the citation to conclude with a date. In order of preference that date was to be either one explicitly carried by the document itself, or the date the site indicated it was most recently updated (“last updated”), or the date the writer last accessed the material (“accessed”).

To adhere to The Bluebook’s style on these points ALWD’s fifth edition had to strip the parentheses, change “last updated” to “last modified” and “accessed” to “last visited.” The citation treatment of Web materials does continue to evolve, and all these changes can find support in current professional practice. On the other hand, ALWD’s prior style choices were thoroughly defensible, and the conversion of “last updated” to “last modified” can only be explained on grounds of Bluebook conformity. The U.S. Supreme has gone both ways on the matter, and, as on so many other citation details, it follows its own style, using the phrase “as visited” to describe the date it accessed a Web-based document.

e. Et al.

Other points on which the ALWD fifth edition bows to Bluebook style include the citation of:

3. Bottom Line

The removal of the ALWD work’s prior subtitle is telling. The guide no longer provides an independent compilation or codification of professional practice. In joining the legion of “how to cite according to The Bluebook” books and study aids it reinforces the erroneous impression that U.S. legal citation style is both uniform and static. That was not true in 2000 when the ALWD guide first appeared. It is even less true today as the transformation and proliferation of legal information sources continues to accelerate. New and knotty issues of citation policy call for serious attention and fresh approaches. It is truly unfortunate that ALWD has ceded all initiative to others.

Should It Be “Commissioner”, “Comm’r”, or “Commr.”?

Thursday, February 27th, 2014

1. Truncating and Abbreviating Case Names

The “case name” segment of a case citation serves a very different function from the rest.  Rarely is it used to retrieve the decision.  Although “case name” searches are possible with all online services, use of the case “cite” delivers more accurate results, particularly if the parties have common names or are frequent litigants.  (Try searching on “Smith v. Smith”, “Smith v. Wal-Mart”, or, heaven help you, “Smith v. United States”.)

So why include the parties’ names as part of a citation?  I’ve seen a variety of lame explanations (e.g., “reveals the nature of the litigation”), but am convinced that the fundamental justification rests on the brain’s greater capacity to handle names.  Imagine having to remember or to discuss cases by their retrieval IDs.  Suppose, for example, after making a point in oral argument or law school class you were to be challenged to reconcile your position with “499 U.S. 340.”  Those who litigate in federal court may need to think and argue about “Rule 11 sanctions,” but I wager that most will find it easier to refer to the Supreme Court’s 1991 decision published at 499 U.S. 340 using its name or style or title or caption and will be able to remember that name long after forgetting the case cite.

In the official report that decision appears under the heading “Feist Publications, Inc. v. Rural Telephone Service Co., Inc.”  In oral exchange, and perhaps in memory, that may reduce to “Feist.”  But when constructing a complete citation how should the case name be written?  On that question interests of completeness and intelligibility collide with the need to minimize a case citation’s interruption of the flow of argument it is intended to support.  As one might expect there are different answers as to how that balance should be struck.

2. Stripping Off Excess

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Beginning with the heading or title the deciding court has given a case, there seems to be a fair degree of consensus around several truncation principles:

  • If multiple actions are consolidated in an appeal, drop all but the first.
  • If multiple parties are involved on either or both sides of the case, use only the first.
  • With individuals trim down to a single name, the surname unless that does not appear (“Pickering” rather than “Marvin L. Pickering”, but “Marvin P.” if the surname is not given).  This practice can stumble over Chinese, Vietnamese, and Korean names when they appear in traditional sequence.
  • Shrink longer procedural phrases (in English) to a short set of Latin equivalents (“In the Matter of Buddy Lynn Whittington, Petitioner” becoming “In re Whittington”).
  • Limit designations of business organization to the first (which would lop the “Inc.” off “Rural Telephone Service Co., Inc.”).

And so on.

3. Compressing What Is Left through Abbreviation: The Bluebook (and ALWD Citation Manual)

The Bluebook takes an aggressive approach to further party name reduction.  It directs that some 144 words that may appear in a business, non-profit, or public entity’s name be abbreviated and prescribes the abbreviation to be used for each.  Actually, the number is larger than 144 since some entries are word families – that is two or more words with the same root, treated as one, “Transport” and “Transportation”, for example.  Words not on the list may, the manual says, be abbreviated so long as they contain eight letters or more and the abbreviation would save “substantial” space.  Any word on the list, however, must “always” be abbreviated “even if the word is the first in a party’s name.”  (Rule 10.2.2.)  (Prior to 2000 The Bluebook spared the first word, but the seventeenth edition ended that dispensation.)  Applying these Bluebook rules to Feist compresses the case name by nearly one-third to Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.  The ALWD Citation Manual, which achieves the same result in this and most other cases, contains an even more extensive list of abbreviations.  (Striking a very different balance, The University of Chicago Manual of Legal Citation pronounces that “Abbreviations in case names are rarely used.”)

4. The Bluebook’s Limited Influence on This Point

Of the many respects in which the styles prescribed by The Bluebook and the remarkably similar ALWD Citation Manual fail to reflect the diversity of citation formats in the professional writing of lawyers and judges, this may be the most conspicuous.  Style manuals governing judicial writing in important states exhibit quite different levels of enthusiasm for case name compaction (shorter lists, a first word exemption).  Some add words.  Some specify different abbreviations for words on The Bluebook list.

While the rules of appellate practice in a small number of states (Delaware, New Mexico, North Carolina) do appear to direct that case citations in memoranda and briefs conform to the style set forth in The Bluebook, both context and the citation practices of those very courts cast doubt on whether their directives were intended to extend beyond the cite, date, and court components of a case citation to case name abbreviation.  Moreover, in several instances (Alabama, California, Idaho) where a court rule refers to Bluebook style, it also authorizes use of one or more alternative citation guides or speaks of The Bluebook as providing guidance (South Carolina).  In most U.S. jurisdictions, including the federal courts, there are no directives that can reasonably be construed as requiring the use of The Bluebook’s case name abbreviations.  An FAQ at the Supreme Court’s web site states quite explicitly: “The Supreme Court does not have a style manual for advocates before the Court.”  It goes on to suggest those seeking guidance might “search Supreme Court materials for citation to a similar document.”

5. The Supreme Court’s Approach

Anyone following that advice will quickly realize that on this point, as on so many others, the Supreme Court’s citations do not conform to The Bluebook.  To begin, the Court does not abbreviate the first word of party names.  A recent citation of an earlier Supreme Court decision identifies the case as Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480 (1985).  Per The Bluebook both “Federal” and “National” should be abbreviated.  Indeed, the length of both “Conservative” and “Political” make them candidates for elective abbreviation.  In other respects as well the Court exhibits a gentler approach to abbreviation.  There are numerous words on The Bluebook list it does not regularly abbreviate.  The Supreme Court’s subsequent citations of “Feist” consistently render its case name, which contains three words on The Bluebook’s mandatory list (“Publications”, “Telephone”, and “Service”), as Feist Publications, Inc. v. Rural Telephone Service Co.  A recent citation of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) abbreviates neither “Township” nor “School” as The Bluebook directs.  Even more significantly, the Court’s citation includes both the name of the township and county which The Bluebook would drop.  It also employs “Cty.” rather than The Bluebook’s “Cnty.” for “County”.  Another case recently cited by the Court is Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434 (1999).  According to The Bluebook that case name should be shrunk to Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship.  In short, there is only limited correspondence, in degree or detail, between Supreme Court’s use of abbreviations in citations to its own precedent and The Bluebook rules.  Some of the federal circuit and district courts follow the Supreme Court’s lead in this area; many do not.

6. Fifty States, Diverse Styles

A. New York Style

New York’s reporter of decisions has a published style manual.  Since the state’s Law Reporting Bureaus oversees the publication of decisions of New York’s intermediate appellate courts and some trial decisions as well that manual guides the writing of judges throughout the state and indirectly influences the citation practices of lawyers submitting memoranda and briefs to them.  While the New York manual shares The Bluebook’s enthusiasm for abbreviation, containing an even longer list, it takes a different position on one point of style on which reasonable minds (and therefore citation practices) can easily differ.  In forming abbreviations, The Bluebook favors contractions (e.g., “Eng’r” and “Int’l”, though curiously “Envtl.”). Prior to the fourth edition, the competing ALWD Citation Manual used no apostrophes; all its abbreviations ended with periods (e.g., “Engr.” and “Intl.”).  Its fourth edition authorizes use of contractions as an alternative (e.g., “Engr.” or “Eng’r”, “Intl.” or “Int’l”).  Judging from the advance publicity, the stance of the forthcoming fifth edition is likely to be at least as deferential to The Bluebook on this esthetic matter.  But New York courts are not.  With only two exceptions New York style ends abbreviations with a period.  In New York it is “Assn.” not “Ass’n”, “Commr.” not “Comm’r”, “Govt.” not “Gov’t”, “Intl.” not “Int’l”, and so on.

B. Massachusetts and Illinois

The Massachusetts style manual sides with The Bluebook on contractions.  The Illinois manual also agrees that “Association” should be reduced to “Ass’n” but like the University of Chicago manual, it calls for very little abbreviation.  Illinois style restricts case name abbreviations to “Association” and ten other words.  Even words on this short list are to be written in full if they are “the first word in the name of a party.”

C. Michigan

If New York favors periods, Michigan rejects them as altogether unnecessary.  The Michigan Uniform System of Citation includes a number of contractions (e.g., “Ass’n”, “Comm’r”, “Int’l”) but trims the concluding period off all abbreviations.  “Brothers” is “Bros”, “Construction”, “Constr”, and so on.

D. Oregon and California

Oregon’s approach to case names rests on the editorial norms of the source.  Rather than imposing a set of its own abbreviation rules, the Oregon manual incorporates those of the cited jurisdiction by providing that case names be drawn from the running heads of the case’s official reporter or failing that the regional reporter in which it appears.  During the print era this rule, which gives up on uniformity, had the advantage of simplicity.  Now that few writers rely on print reporters, with many actually lacking reasonable access to them, the rule’s explicit prohibition on using Westlaw or LEXIS (or presumably any other electronic source) “as a source for the official case name” is manifestly an anachronism.  By contrast, the California Style Manual steps into the modern era.  Its section 1:1 provides: “Follow exactly the shortened title used in the running head of a paper-based reporter or a shortened title shown in a computer-based source.” (Emphasis added.)

7. What Approach Should the Writer of a Brief or Memo Adopt?

What should an attorney to do in the face of so many different approaches?

A. Be Consistent

First: Be consistent.  California has a distinctive style manual.  A court rule calls for citations to conform to it or, alternatively, to The Bluebook.  It concludes, however: “The same style must be used consistently throughout the document.”

That is a sound principle in any jurisdiction.  In states like Illinois, Massachusetts, Michigan, New York, and Oregon where judges follow a clear set of abbreviation norms, but lawyers are not directed to adhere to them, the prudent lawyer employs some set of abbreviation principles consistently.  Convenience to the judge may argue for employing the state’s distinctive style, while law school training, available software tools, or the citations provided by the writer’s preferred case law database may point another direction.  A failure to adhere to a single, consistent approach throughout a piece of writing is far more likely to create a negative impression of care than a lawyer’s particular choice of style.

B. Routinize the Process

Second: Avoid devoting serious time to what ought to be routine.  Some find it possible to internalize that routine.  But consistent use of a single digital source for case law should do most if not all of the job.  The major services all impose an acceptable measure of case name uniformity across courts and jurisdictions.  Some make it easier than others to copy the complete citation of a retrieved case, including their rendering of its name, but at worst the step requires a simple block and copy of a case’s title or listing.  Without marketing the fact, Lexis has long provided case names that conformed to Bluebook citation norms (e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship).  WestlawClassic conforms to National Reporter System style (e.g., Bank of America Nat. Trust and Sav. Ass’n v. 203 North LaSalle Street Partnership).

lexisadv

westlawnextWestlawNext and Lexis Advance provide ease of citation extraction as a feature, coupled with a measure of style selection.  With WestlawNext the style selected affects how the case name is abbreviated.  In both services “Standard” citation format (code name for Bluebook) is the default but not the sole option.  Presumably, The Bluebook’s registered trademark prevents their identifying its style using the name by which we all know it.

There are also a variety of software tools that offer case name abbreviation along with citation checking and reformatting, but they are a topic large enough to warrant treatment in a later 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!

 

 

Citing unpublished decisions

Thursday, December 5th, 2013

On December 16, 2010, a panel of the Eleventh Circuit, U.S. Court of Appeals, issued a per curiam opinion interpreting the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) as it related to specific Florida crimes. The panel designated that opinion not for publication (“DO NOT PUBLISH”). This December opinion vacated an earlier one, dated September 8, also unpublished, that had misstated one of the defendant’s prior convictions. The new decision corrected the error. In all other respects it was identical. Although unpublished, under the Federal Rules of Appellate Procedure (Rule 32.1) that December 16 decision can be cited. A rule of the Eleventh Circuit (p. 147, Rule 36.2) explicitly provides that unpublished opinions are not binding precedent but “may be cited as persuasive authority.”

The issue to be considered here is how to cite such unpublished, non-precedential decisions.

Both the September and December opinions are available on the Eleventh Circuit Web site. They and other Eleventh Circuit opinions applying the same sentence enhancement provision of the ACCA can be found with a Google web search (site:www.ca11.uscourts.gov “Armed Career Criminal Act” “residual clause”) or through a search on Google Scholar limited to the Eleventh Circuit. Anyone finding the court’s decision in United States v. Hayes on the open Web would, however, be unaware that, notwithstanding, the “DO NOT PUBLISH” label the editors of Thomson Reuters selected the decision for publication in a set of books that no law library I’ve ever used has seen fit to buy or shelve, the Federal Appendix of the National Reporter System. (The Federal Appendix is for sale. The full set, currently 523 volumes, covering a mere dozen years, can be yours for only $7,093.80, just marked down from $10,134, perhaps for the holidays. However, the print market was never that publication’s aim.) Within that series the Hayes decision is reportedly located in volume 409, at page 277. That information is not available on the open Web. Furthermore, unless a person finding and wanting to cite Hayes is a subscriber to Bloomberg Law, Lexis, or Westlaw, she would not be aware that those services have designated it, 2010 BL 299236, 2010 U.S. App. LEXIS 25741, and 2010 WL 5122587, respectively. Those high end services also provide the case’s Federal Appendix cite, 409 Fed. Appx. 277 (or as converted by The Bluebook, 409 F. App’x 277). Persons with access to Casemaker or Fastcase could discover and retrieve the Hayes decision using a suitable query, but neither of those services adds their own proprietary citation or reports the citations added by their competitors.

One further point about the Federal Rules of Appellate Procedure and Eleventh Circuit additions – they provide no explicit guidance on how to cite “unpublished” but widely available decisions like Hayes. One can, however, find indirect policy guidance in the same Eleventh Circuit rule that allows their citation. It provides that “If the text of an unpublished opinion is not available on the internet, a copy of the unpublished opinion must be attached to or incorporated within the brief, petition, motion or response in which such citation is made.” Patently, this requirement is not focused on judicial access to such decisions. The judges of the Eleventh Circuit, like other federal judges, have access to both Lexis and Westlaw.  Rather the rule addresses the problem of access faced by parties without access to Westlaw, Lexis, Bloomberg Law and the rest, and citation format bears directly on access.  A citation to Hayes in a brief, memo, or court opinion reading: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010)“ is utterly useless on the open Web. It will also fail to retrieve the decision on Casemaker and Fastcase. Yet that is precisely how The Bluebook would have the case cited once it has been selected for and received volume and page numbers in the Federal Appendix. (See Rule 10.5(a).) No doubt that is because The Bluebook is written by and for law journals, whose editors have access to at least one, if not all, of the Bloomberg Law, Lexis, and Westlaw trio. The ALWD Citation Manual similarly assumes the universal utility of a Federal Appendix citation. (See its Rule 12.14(b).)  In fact the ALWD manual goes farther down this false path than The Bluebook, for it authorizes citations to unpublished decisions that rely totally on Lexis or Westlaw cites, which are even less effective across systems, e.g., “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010)” or “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010).”

Until the federal courts begin attaching neutral citations to their own decisions, the only effective way to cite Hayes or any other “unpublished” but widely distributed decision is to include both the docket number and the full date of the decision, as in “United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010).” The docket number, coupled with deciding court, enables retrieval of the opinion from all competing commercial research services, from Google Scholar and the open Web. The full date, particularly important with this example, allows anyone following the citation to realize that the vacated September 8 opinion, which the docket number will also retrieve, is not the target of the reference.

In sum, both The Bluebook and the ALWD Citation Manual have been led astray. An unpublished decision should be cited as an unpublished decision. Docket number, court, and full date work effectively to identify and retrieve a cited case across sources, including importantly the open Web. A citation to the Thomson Reuters Federal Appendix is no substitute. Nor is a citation using the proprietary numbering system of one of the commercial online services. Of course, there is no harm, beyond the space consumed, in adding a Federal Appendix, Bloomberg Law, Lexis, or Westlaw cite to that essential core. On the other hand, unless one is confident that all important readers of a document will have access to a system on which such a proprietary cite will work, the added value is not likely to be worth the increase in citation length.

Unfortunately, the judges of the Eleventh Circuit and the district courts over which it sits do not model this approach. Just as they impose no particular citation format on those appearing before them, they practice none. Hayes has been cited in numerous subsequent decisions, both published and unpublished. In United States v. Nix, 628 F. 3d 1341, 1342 (11th Cir. 2010) the earlier Hayes opinion is cited as “United States v. Hayes, 2010 WL 3489973 (September 8, 2010).” The dissent in Rozier v. United States, 701 F.3d 681, 688 n.5  (11th Cir. 2012)  cites to the Federal Appendix reporter, “United States v. Hayes, 409 Fed.Appx. 277 (11th Cir. Dec.16.2010).” United States v. Morris, No. 11-13064 (11th Cir. Aug. 15, 2012) (which appears in volume 486 of the Federal Appendix at page 853, if that is useful to you) cites the case, without either docket number or exact date, as “United States v. Hayes, 409 Fed. App’x 277, 278-79 (11th Cir. 2010).” Citations to Hayes, in recent decisions of the U.S. District Court for the Middle District of Florida, appear in the form: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010), cert. denied, ___ U.S. ___, 132 S. Ct. 125, 181 L. Ed. 2d 47 (2011).”

Under the influence of those appearing before them and the guidance of their clerks, federal judges need to bring their citation practice into accord with the concern over access expressed in the Eleventh Circuit rule.

Origins of the Bluebook?

Wednesday, December 4th, 2013

The Bluebook, currently produced as a (quite profitable) joint venture by the law journals of Columbia, Harvard, Penn, and Yale, has long been thought by Harvard people to have begun there in 1926. Now comes Fred Shapiro of Yale with evidence that the first Harvard Bluebook was cribbed without attribution from a 1921 Yale Law Journal pamphlet.

Parallel print citations in today’s digital environment

Tuesday, November 12th, 2013

Back in the day when case research entailed pulling volumes from a shelf and many states published their own “official” reports, parallel citations fulfilled a useful function. They allowed the reader of a brief, opinion, or journal article to retrieve a cited case by pulling whichever of alternative sets of reports were available.  Reporter name, volume number, and page led straight to the case. True, look-up-tables (West’s  National Reporter Blue Book, Shepard’s Citations) made it possible to determine where a case in volume 50, at page 278 of the official reports could be found in the National Reporter System regional reports and vice versa —  a tedious process but manageable.  But tables did not translate pinpoint citations.  And in most instances publication lag or policy stood in the way of reciprocal star pagination.  In states or during periods when no single reporter furnished full dual citation information, the value of parallel citation rose, but of course so did its cost. To produce complete parallel cites under those conditions a writer had to have access to two sets of books. The late West publishing company produced numerous state-specific offprints of its regional reporters to meet the market need and strong law school libraries maintained dual sets of reporters, at least until the 15th  edition of The Bluebook (1991). That edition broke with the past by authorizing the use of the National Reporter System cite alone in journal articles and seemingly in all other legal writing, except briefs and memoranda submitted to courts “of the deciding state.” Even that exception disappeared in the 17th edition (2000) which simply told practitioners to cite to “reporters preferred by local rules, including any parallel citations to the official state reporter, if required.”

The vendor- and medium-neutral citation schemes proposed during the 1990s by the American Association of Law Libraries and the American Bar Association were purposefully designed to specify cases and passages within them using a single set of identifiers that would work across publications and media, thereby rendering multiple citations unnecessary. However, as a transition measure, reasonable for a period when a fair portion of the legal profession still worked from print case reports (and to soften opposition to the reform), the ABA included the following language in its 1996 resolution:

Until electronic publications of case reports become generally available to and commonly relied upon by courts and lawyers in the jurisdiction [adopting neutral citation], the court should strongly encourage parallel citations, in addition to the [neutral] primary citation …, to commonly used printed case reports.

Most states adopting some form of print-independent citation during this period went beyond “strongly encourage” and required parallel citation to the National Reporter System. A few states also required citation to a continuing set of official print reports. Some neutral citation adopters like North Dakota, but not all (see below), realized that since paragraph numbers attached to decisions by the deciding court traveled with it into print requiring a parallel pinpoint page served no purpose (being both redundant and less precise).

Any need for such deference to National Reporter System volume and page number citation passed years ago. Citation norms or requirements that still call for its use in parallel with a publicly attached citation, whether print-derived or medium-neutral, impose significant costs on all providers of legal information (other than Thomson Reuters) and consequently on their users. Appropriately, the two states most recently adopting neutral citation systems, Colorado (2012) and Illinois (2011), have not insisted on or even affirmatively encouraged parallel citation. Colorado courts will accept either court-attached print-independent or National Reporter System case citations; briefs need not include both.  Illinois Supreme Court Rule 6 mandates use of that state’s new citation scheme; parallel print-derived citations “may be added but [are] not required.”

Present conditions compel those maintaining legal databases to index cases by alternative citation systems where they exist. Consider, as an example, the decision of the Kansas Supreme Court in Kansas Dept. of Revenue v. Powell filed on June 4, 2010. In time that case acquired volume and page numbers, first in the Pacific Reporter (232 P.3d 856) and later in the state-published Kansas Reports (290 Kan. 564).  Either cite will retrieve the decision on: Westlaw, Lexis, Bloomberg Law, Casemaker, Fastcase, Loislaw, or Google Scholar. The first four of those services (including Casemaker, the one available without additional charge to all members of the Kansas Bar Association) have also inserted dual sets of page break notations in that and all other Kansas case files. As a consequence their users can make or follow pinpoint citations employing either the official report or regional reporter’s system. They don’t need both.

Decisions from jurisdictions that have implemented neutral citation schemes employing paragraph numbers arrive embedded with complete citation information. They and their key passages can be retrieved from a full spectrum of legal research services and even the open Web without resort to parallel National Reporter System volume and page numbers. In releasing lawyers from the obligation to furnish parallel citations Colorado and Illinois have simplified case citation without inflicting inconvenience on users of any of the competing legal research services.

States that adopted neutral citation systems a decade or more ago but failed to make a complete break from print-derived citations (see below) should follow the lead of these two recent adopters. Any value parallel citation once had as a transition measure vanished along with printed law reports.

Parallel Citation Requirements in Neutral Citation Jurisdictions

State

Year neutral citation began

Parallel NRS print case citation to be provided, if available

Parallel pinpoint cite page numbers required, if available

Note

Arkansas

2009

Yes

Yes

Arkansas does not use paragraph numbers.

Colorado

2012

No

No

Use of the neutral citation is optional, but if one does use it a parallel print citation is not necessary.

Illinois

2011

No

No

Louisiana

1994

Yes

Yes

Louisiana does not use paragraph numbers.

Maine

1997

Yes

No

Mississippi

1997

No

No

Montana

1998

Yes (and to Montana Reports as well)

No

New Mexico

1997

NRS citation is optional, but parallel citation to New Mexico Reports is mandatory for cases published in it

No

Print publication of the New Mexico Reports ceased with volume 150.  All published decisions have been given neutral citations, retrospectively.

North Dakota

1997

Yes

No

Ohio

2002

Yes (and to Ohio Reports as well)

No

Oklahoma

1997

Yes

No

South Dakota

1996

Yes

No

Utah

1999

Yes

No

Vermont

2003

Yes (and to Vermont Reports as well)

No

Wisconsin

2000

Yes (and to Wisconsin Reports as well)

No

Wyoming

2001

No

No

 Source: Basic Legal Citation § 7-500.

Nowhere versus generic citations

Friday, November 1st, 2013

A recent New York Times piece on the prevalence of non-functioning links in Supreme Court citations (a topic for another day) carried the headline: “In Supreme Court Opinions, Web Links to Nowhere.” The phrase brought to mind the fierce attack mounted by the late West Publishing Company during the mid-nineties against proposals to replace that publisher’s dominant system of proprietary, print-based citation of U.S. case law with vendor- and medium-neutral citations. At the time West’s representatives repeatedly characterized citation identifiers applied by the issuing court as “citations to nowhere” or “nowhere citations.” They asserted that the approach, then and still, advocated by the American Association of Law Libraries and American Bar Association “provides absolutely no clue that helps the researcher to identify the publication, CD-ROM, or online service where she can actually find the opinion.”

Artfully, the argument conflated two quite distinct goals for a citation system – one central, the other secondary and often sacrificed to competing values. As explained in § 1-200 of Basic Legal Citation: a functional legal citation must, within limited space, “provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer).” A second and separate principle would call for disclosure of the writer’s actual source. In a much cited 1982 article on citation theory and practice, Paul Axel-Lute placed the latter citation principle dead last in his list of thirteen, a set which he noted carried inevitable conflicts.

As the Axel-Lute article observed this “writer disclose your source” principle is, in numerous settings, trumped by the principle of “brevity” and also overridden by rules calling for citation to “official” sources (whether or not in fact used by the writer). Noting that longstanding practice, codified in The Bluebook, which had just then appeared in its thirteenth edition, did not require specification of source in citations of court rules, Axel-Lute surmised this was because they “are found in a multiplicity of sources.” He observed that the same held for citations to the Constitution.

In the early 1980s case law was not available from a “multiplicity of sources” and a case citation in the format “___ F.2d ___, ___” at once directed readers to the cited passage and indicated the writer’s use of a specific source. Four decades later “multiplicity of sources” characterizes access to nearly all types of primary legal materials in the U.S., and such a citation cannot reasonably be understood as representing that the writer has read the decision in the pages of a particular printed volume or even in the digital replica sold online by the same publisher. Today, with few exceptions, cases and statutes are available from “a multiplicity of sources,” some free to all, others free to all members of a state bar, and still others wrapped in costly layers of added value. So long as a citation to a judicial opinion or statutory section enables a reader to retrieve the document from her preferred source there is no more need for the writer to declare his source than with a constitution provision or court rule.

In this environment of many competing sources, proprietary citations are more likely than those appended by the issuing court, legislative body, or agency to give rise to problems of access. Consider the recent decision of the Indiana Supreme Court interpreting that state’s statute on grandparent visitation rights, J.C. v. J.B., 991 N.E.2d 110 (Ind. 2013). As already noted, although the foregoing citation is derived from a specific print publication, no reader of this blog should take my use of it as representing that I relied on that source. In fact I first came upon the decision on Lexis. Prevailing citation norms do not, however, call on me to declare that. Nor does the formula “991 N.E.2d 110”, which conforms to the pattern specified by the major citation manuals and Indiana’s own rules of appellate procedure, drive the reader to a particular source. Ultimately, it will enable retrieval of the decision from all major legal research services including Casemaker, a system that is free to all Indiana Bar Association members. Unfortunately, however, since it is not the product of a system of court-applied citations, “991 N.E.2d 110” did not travel along with the opinion when it was added to all those databases. The decision was handed down on July 18, 2013. North Eastern Reporter volume and page numbers were not attached to it on Westlaw until roughly a month later.  At that point all other databases confronted the task of matching the Thomson Reuters cite and the corresponding internal pagination with their copy of the Indiana decision.  Until that is done “991 N.E.2d 110” cannot be used on them to retrieve the case nor can that citation be drawn from them by the writer of a brief or subsequent opinion.  Casemaker did not make that match until mid-October.  And as of this writing “991 N.E.2d 110” still draws a blank on Google Scholar (even though it holds the case).  Google Scholar has integrated volume and page numbers with opinions Thomson Reuters has allotted to “898 N.E.2d” but as yet none from “890 N.E.2d” or “891 N.E.2d.”

Consider also the statutory provision at issue in J.C. v. J.B. It  is cited by the court as “Ind. Code § 31-17-5-1.” On Lexis that section is presented as “Burns Ind. Code Ann. § 31-17-5-1.” Westlaw identifies the same provision as part of “West’s Annotated Indiana Code.” Both titles match those of copyrighted print compilations marketed by the respective companies. Were one to take the “writer disclose your source” principle seriously even a citation to “Burns Ind. Code Ann.” would have to indicate whether it referred to the publisher’s print or electronic version. Somewhat ambiguously The Bluebook instructs a writer to cite to “Indiana Code … if therein” rather than to either commercial version, but does it mean a specific “Indiana Code”? Although the Indiana Legislative Services Agency maintains an up-to-date compilation of the state’s statutes with that title at: http://www.in.gov/legislative/ic/2010/, it is good bet that the Indiana lawyer who complies with the state’s rules of appellate procedure and cites to Ind. Code § 31-17-5-1 has secured its text from Lexis, Westlaw, or Casemaker rather than from that public site.

During the print era it was, in many settings, important for a statutory citation to indicate the specific source relied on by the writer, but today “Ind. Code” and the equivalent in other states are generic references. They are identifiers that enable retrieval of the relied upon text from a multiplicity of sources rather than a signal that the writer has consulted a particular one.  The major citation manuals and some state rules are not clear on this point, largely because they remain stuck in patterns shaped by print.

There are still some situations where the “writer disclose your source” principle merges with the core task of facilitating the reader’s retrieval of the cited text, where indicating source avoids the risk of a “nowhere citation” or misdirection.  In the present environment, however, generic citations of cases and statutes are the norm. Traditional formats that imply reliance upon a particular source too often consume unnecessary space, impose costs and delay, and run some risk of confusion.

Ideas on how to improve The Bluebook? Online survey

Monday, October 21st, 2013

In preparation for the commencement of work on the 20th edition of The Bluebook, due out in 2015, that manual’s proprietors have placed a survey online at: https://www.legalbluebook.com/survey.  Anyone with views on how that reference might be improved in scope, delivery, or content should register them … soon. Submissions must be received by Nov. 8.