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(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.

Tags:Bluebook, citation principles, quotations
Posted in Bluebook, Cases, Constitutions, Quotations, Statutes | Comments Closed

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.

Tags:Bluebook, cases
Posted in Abbreviations, Bluebook, Cases | Comments Closed

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

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

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

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

Tags:ALWD, Bluebook
Posted in ALWD, Bluebook | 1 Comment »

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.

Tags:ALWD, Bluebook
Posted in ALWD, Bluebook | 4 Comments »

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

Friday, August 28th, 2015

The Issue

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

Cases

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

Statutes, Constitutions, and Court Rules

What The Bluebook Says

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

What Judges and Lawyers Do

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

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

Instead the opinion will almost certainly cite the provision generically:

17 U.S.C. § 301(a).

As will briefs submitted in the case.

Commentary

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

The Rule that Should Swallow its Exceptions

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

Tags:Bluebook, cases, constitutions, journal articles, regulations, statutes
Posted in Bluebook, Cases, Constitutions, Journal articles, Regulations, Statutes | 1 Comment »

How to Cite Treatises

Monday, August 24th, 2015

Introduction

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.

Tags:Bluebook, ebooks, treatises
Posted in Bluebook, Treatises | 3 Comments »

Citations Generated by the Major Online Systems

Friday, November 14th, 2014

A recent post on the Legal Writing Prof Blog draws attention to Westlaw’s copy-with-reference feature. Its author raises a concern that the option to have citations formatted in the ALWD style still yields citations conformed to that manual’s fourth edition rather than the fifth edition, published earlier this year. Since ALWD’s new version adheres to The Bluebook’s citation style in nearly all particulars, that problem is easily solved: The Westlaw folks need simply to remove the ALWD option. However, those engaged in teaching legal writing and introducing law students to citation need to be attentive to numerous other imperfections in this WestlawNext feature and its LexisAdvance analog, as well as in the citations generated by other research services those 1Ls may employ once in practice.

copywithcite1

To begin, although the blogger writes of there being a Bluebook option, that label does not appear among the citation format options of either major service. The default citation style offered by both Westlaw and Lexis is denominated “Standard”. Is that due to trademark concerns? For reasons set out in an earlier post, I doubt it. The truth is that neither system consistently produces Bluebook compliant citations across the several types of authority and to suggest otherwise would be misleading. “Standard” doesn’t make such a claim, although it appears it may lead legal writing teachers and their students, not to speak of lawyers and other online researchers, to believe that is the case.

One other point made in that short post arouses concern. Its author observes that because of this new and amazing feature “I can spend a little less time teaching citation format.” For reasons explained in the latest version of Basic Legal Citation, I view that as a mistake. Let me point out a few reasons why a researcher who wants to employ Bluebook (or ALWD) conforming citations in a brief or memorandum will have to know enough to add, subtract, or modify those delivered by either Westlaw or Lexis.

1. Cases

As pointed out in an earlier post, a major attraction of any copy-with-reference function is that the case name segment of the citations it delivers will have been shrunk through the dropping and abbreviating of certain words. Per The Bluebook a decision rendered in the matter of

Edward Mann and Holly Mann, Plaintiffs-Appellees, v. LaSalle National Bank, as Trustee under Trust Agreement dated March 22, 1960, and known as Trust No. 24184; Ellenora Kelly; John J. Waters; Irene Breen, as Trustee under Provisions of the Trust Agreement dated January 31, 1973, and known as Trust No. 841; Unknown Beneficiaries of Trust Agreement dated January 31, 1973, and known as Trust No. 841; and Unknown Owners, Defendants-Appellants

is reduced to “Mann v. LaSalle Nat’l Bank”. Westlaw’s “Standard” format citation for the case is a close though not identical “Mann v. LaSalle Nat. Bank”. Not The Bluebook’s “Nat’l” nor the “Natl.” favored by earlier editions of the ALWD manual and Bloomberg Law but “Nat.”, the abbreviation long employed by West Publishing Company.

Illinois has its own style manual. It contains a very short list of names that are to be abbreviated in case names. “National” is not one of them. Consequently, citations to Mann by Illinois courts present the case name as “Mann v. LaSalle National Bank”. One might expect that since Westlaw’s copy-with-reference offers an “Illinois” option choosing it would yield that result. It doesn’t; the case name for this decision still comes out as “Mann v. LaSalle Nat. Bank”. LexisAdvance also offers a choice between “Standard” and “Illinois” style citations when copying passages from Mann. As with Westlaw they render the case name identically. But in compliance with The Bluebook, Lexis abbreviates “National” as “Nat’l”.

A big deal? Grounds for choosing Lexis over Westlaw? Hardly. I know of no instance of an attorney being chastised by a court for using non-Bluebook abbreviations and have argued that consistent use of those delivered by the writer’s online source ought to be a totally acceptable approach in professional practice. With their tight attachment to The Bluebook, law journal editors are likely to disagree.

The bigger deal is how Westlaw and Lexis treat the balance of a case citation, particularly if the jurisdiction has, like Illinois, adopted a system of non-print-based citation. Take the recent case of Brandhorst v. Johnson. In decisions of Illinois courts and briefs submitted to them a reference to a particular passage of that case in the form ”Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 57” would be complete. The Bluebook insists that a reference to the National Reporter System (“12 N.E.3d 198, 210” in the case of that passage of Brandhorst) be included in parallel. When the paragraph in question is copied from WestlawNext with its citation in “Standard” format the paragraph number is not included in the cite. (LexisAdvance includes it.) Westlaw does not include the parallel N.E.3d cite in either the “Standard” or “Illinois” style citations for the case. Lexis includes it and adhering to The Bluebook includes a pinpoint page reference. However, Lexis departs from The Bluebook by throwing in the totally unnecessary “382 Ill. Dec. 198, 206” when the “Standard” format is chosen. Westlaw’s “Illinois” style citation for the case adds the parenthetical “(Ill. App. Ct. 4th Dist. June 11, 2014)” which none of the style manuals calls for. The Illinois style guide explicitly states that there is no need for a citation to identify the appellate district “unless that information is of particular relevance to the discussion”. (Moreover, since the district number is part of the jurisdiction’s public domain citation system, with any recent case like Brandhorst its repetition in a parenthetical wastes space.) In sum, neither Westlaw nor Lexis delivers a Bluebook cite for this case. Neither delivers an “Illinois” format citation that conforms to the state’s style guide. Users who would conform their writing to either of those citation standards need to modify or add to what those online systems serve up programmatically along with a copied passage.

2. Statutes (and regulations)

A provision of the Social Security Act with considerable contemporary relevance is to be found in 42 U.S.C. § 416(h)(1)(A)(ii). Copy its language with citation from Westlaw and what you get is “42 U.S.C.A. § 416 (West)”. Lexis renders its citation as “42 USCS § 416”. Neither service is prepared to yield its branded designation of the U.S. Code to the conventionally used generic or official format. Neither includes a date or other indication of the currency of the compilation The Bluebook calls for. And critically, neither provides the absolutely essential subsection and paragraph identifiers that specify the portion of 42 U.S.C. § 416 one is copying. The blocked text may include “(ii)” but that alone is not enough. The same failure to reach below the section level holds with citations to regulations.

3. Conclusion

At their current stage of evolution none of the major research services (including not only Westlaw and Lexis, but Bloomberg Law, Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully comply with The Bluebook or, indeed, any of the other citation styles they may list. In any setting where citation format is critical, users need to know that. And all researchers need to be aware that the citations of statutes or regulations these systems generate will often be seriously incomplete.

Tags:ALWD, Bluebook, cases, codes, neutral citations, regulations, statutes
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2014 edition of Basic Legal Citation released

Friday, October 31st, 2014

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.

Posted in ALWD, Bluebook | Comments Closed

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).

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.

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.

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.

Tags:ALWD, Bluebook, copyright
Posted in ALWD, Bluebook, Copyright | 1 Comment »

The ALWD Guide Capitulates

Tuesday, May 13th, 2014

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.

Tags:ALWD, Bluebook, cases, citation principles, treatises
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