Archive for September, 2015

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.