Most legal research in the U.S. is conducted using electronic source material, and for many types of cited works, primary and secondary, there are at least several possible sources. A pervasive issue is whether a citation ought specify the source relied upon by the author or whether instead a generic citation, adequate to retrieve the cited work from all widely used sources, will suffice. The latest edition of The Bluebook delivers inconsistent and, at times, confusing guidance on the point.
Consider a brief that cites a slew of cases, state and federal. If the author has retrieved them all from an online source (Westlaw, Fastcase, Google Scholar, an official court Web site) should her citations note that source? A fair reading of The Bluebook (20th ed.) yields the conclusion that they need not. Rule 10.8.1 authorizes, but does not require, citation to a specific database when “a case is unreported but available in a widely used electronic database.” There is no suggestion that a citation to a “reported” decision (i.e. reported in print), such as State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015), need state that the author relied upon Google Scholar or Fastcase or acknowledge that despite the use of volume and page numbers, she did not review the text in the print reporter to which they correspond. Similarly, a citation to State v. Ortega, 2014-NMSC-017, ¶ 55 is apparently complete without a notation clarifying whether the writer relied upon the official digital version available from the New Mexico Compilation Commission site or the altered version offered by Westlaw. On this point The Bluebook‘s silence is in full accord with the citation practice of lawyers and judges. The twentieth edition, like the nineteenth, appears to accept generic case citations.
Statutes, Constitutions, and Court Rules
What The Bluebook Says
Generic citations to a constitution or statutory provision are a different matter. Rule 12.5(a) insists that when the writer’s source for a statutory code citation is an electronic database, the citation should include the name of the database, the publisher (unless a public office), and its currency. Rule 11 lays down the same requirement for citations to constitutions even though it doesn’t call for identification of source if it is printed. (Presumably, one can be working from the U.S. Constitution as printed in The World Almanac and Book of Facts without confessing it.) In contrast, rule 12.9.3 fully embraces citations to rules of evidence and procedure that leave off source, whether print or electronic. Consistency in approach is lacking; no clear rationale for the different requirements is evident.
What Judges and Lawyers Do
When contemporary decisions of the U.S. Supreme Court or U.S. Court of Appeals cite provisions of the U.S. Copyright Act they refer to them by U.S. Code title and section number – no date (current provision being implied), no indication of source. The odds are very high that the source relied upon by the judges or their clerks was Westlaw. That being the case The Bluebook (rule 12.5) would call for a citation along these lines:
- 17 U.S.C.A. § 301(a) (Westlaw through Pub. L. No. 114-49).
Instead the opinion will almost certainly cite the provision generically:
- 17 U.S.C. § 301(a).
As will briefs submitted in the case.
The Bluebook‘s strong stance on the primacy of print when citing treatises was the subject of a prior post. Its position on law journal articles appears, at first, to be stated in similarly unequivocal terms. Rule 16.8 requires that when “citing periodical materials to a database” one include “a citation to the database”. But rule 18.2.1 (added with the nineteenth edition in 2010) provides that when an exact copy of a print source is available online it can be cited “as if to the original print source.” That, of course, is standard professional practice with law journal citations. Surely, such citations needn’t indicate whether the author retrieved the article in question from Lexis, Westlaw, HeinOnline or the journal’s own online archive.
The Rule that Should Swallow its Exceptions
The relationship between rule 18.2.1 and The Bluebook‘s various mandates to identify one’s actual source is unclear. In all likelihood this is a case where the specific (the mandate concerning statutes, for example) is intended to prevail over the more general rule. Both reflect the continuing grip of a print mindset, quite at odds with the world in which today’s lawyers and judges work. Rule 18.2.1. itself carries a heading that refers to “the original print source.” In truth the original source of nearly all print documents of the current era is electronic. Rule 18.2.1(a)(iii) and rule 18.2.2(f) express an attachment to electronic material that is held in pdf format because it “preserves the pagination and other attributes of the printed work.” Yet the information sources most heavily used by the legal professions, Westlaw, Lexis, Bloomberg Law, and the rest, scroll and hyperlink rather than page. What is critical is that the source be reliably accurate and that it contain the accepted units of citation for the cited work, whether page, section, or paragraph numbers, and not that it look and behave like print. Need it be an “exact copy” as rule 18.2.1 would seem to require? On its face that would rule out all the online services that enhance decisions and statutes with parallel citations and other editorial tampering. The Bluebook‘s level of unreality on these points can only be excused on the ground that it is prepared by students at four elite law schools and aimed primarily at the legal education market (list price $38.50). Ironically, the proprietors now offer “the full content of The Bluebook” online (on a subscription basis – $36 for one year, $46 for two) and as an Apple ios app ($39.99). Presumably, they intend these different formats to be viewed as interchangeable. Believing it safe to rely on the authors for consistency, I don’t feel obliged to report which I relied upon in preparing this post.