Posts Tagged ‘ALWD’

Citing the Code of Federal Regulations

Monday, December 11th, 2017

I. C.F.R. Versus e-CFR and its Progeny?

A. The Historic Print-Determined Timeline

Federal regulations pose the same fundamental citation question as do provisions in the United States Code. On January 18, 2017, important new and amended regulations governing the determination of disability benefit claims under the Disability Insurance and Supplemental Security Income programs were published in the Federal Register.


January 18, 2017

The changes took effect on March 27. The Federal Register for that very date contained a series of “technical amendments” cleaning up minor drafting errors in the January version of the text. Those corrections arrived just in time to beat the April 1st cutoff date for the volume of the 2017 print edition of the Code of Federal Regulations that contains Part 404 of Title 20. That is where the regulations governing these programs are organized. (The Code’s annual editions are published in four waves: “[T]itles 1-16 are revised as of January 1; titles 17-27 are revised as of April 1; titles 28-41 are revised as of July 1; and titles 42-50 are revised as of October 1.”)

In due course the volume containing all Social Security Administration regulations, as of April 1, 2017, was published by the Office of the Federal Register of the National Archives and Records Administration. In that physical form the new regulations, fully compiled and in context, made their way to Federal Depository Libraries, arriving in mid-September.


Date of Arrival: September 13, 2017

Following distribution of the printed volume, a digital replica in PDF was placed online as part of the Government Publishing Office’s Federal Digital System (FDsys).

The citation issue posed by that schedule is this: During the eight months that separated initial publication of these regulations from their appearance in a volume of the “official” Code of Federal Regulations (print and electronic) would it have been appropriate to cite them in accordance with the code location designations they carried from the moment of release? Take the revised 20 C.F.R. § 404.1521, for example. The pre-2017 version of that section dated from 1985. How should a legal memorandum written and filed in July 2017 have cited the text of the section by then in effect?

Citation norms, formed during the era in which the printed volumes of the Code of Federal Regulations and its companion, the Federal Register, were the only trustworthy means of accessing federal regulatory texts, would require citing such a recently revised provision to the Federal Register issue dated January 18, 2017, until the C.F.R. volume holding it could be inspected.

B. e-CFR and Derivative Compilations

Today the same public offices that publish the official Code of Federal Regulations also prepare and disseminate online a continuously updated version of the Code they call the “Electronic Code of Federal Regulations” or e-CFR. It lags the most recently published final regulations by a few days, at most.

On December 8, for example, all sections of the e-CFR were current as of December 6. As is true with the Office of Law Revision Counsel’s online version of the United States Code, the e-CFR can be downloaded in bulk (in XML). That makes it possible for all major online legal information services to offer comparably up-to-date versions of the C.F.R. In short, in the current research environment, the lawyer, judge, or legal scholar who would read, quote, and cite to provisions of the Code of Federal Regulations as they stand at the moment of writing has no excuse not to draw upon the e-CFR or one of its reliable derivatives. (The latter include up-to-date versions of the C.F.R. maintained by Bloomberg Law, Lexis, Westlaw, and Cornell’s Legal Information Institute (LII).)

II. Chronological Version as Distinguished from Source

A. Disambiguating Recently Altered Provisions

Unless the citation to a compilation like the Code of Federal Regulations or the United States Code indicates otherwise, it will be understood as pointing  to the cited portion as it stood at the time of writing. Recent regulatory (or statutory) changes to a provision are likely to require a parenthetical note to remove uncertainty about the reference. With a citation to 20 C.F.R. § 404.1521, for example, the reader will want to know whether the writer is invoking the section’s language before or after the 2017 revision. The writer may well also want to signal to the reader that she is aware of the change. On this score an initial citation reading “20 C.F.R. § 404.1521 (as amended in 2017)” or even “20 C.F.R. § 404.1521 (as amended, 82 Fed. Reg 5844, 5868 (Jan. 18, 2017))” is more useful than one that simply furnishes the year of the most recent official publication or the “as of” date of an unofficial version. On the other hand, a citation to 20 C.F.R. § 404.130, which was last amended in 1990, need carry no such baggage.

The existence of the chronological slices represented by the annual official versions does provide a ready means for citing to provisions as they once read. So long as the context makes it clear that the writer means to refer to the language of the section as it stood before the recent change, a citation reading “20 C.F.R. § 404.1521 (2016)” should suffice. But standing alone, one reading “20 C.F.R. § 404.1521 (prior to the Jan. 18, 2017 amendment)” provides a reader with more information. The GPO’s online archive of past C.F.R. editions, which reaches back to 1996, allows retrieval of no-longer-current regulatory texts on the basis of such references.

B. The Citation Manuals’ Requirement of a Date Element in All Cases

Rule 14.2(a) of The Bluebook calls for a C.F.R. citation to include the year of the cited section’s “most recent edition.” No exceptions. The mandate applies to a provision like 20 C.F.R. § 404.130 which has not been amended for over a quarter century. For a citation in a memorandum completed in July 2017, this rule would require  “20 C.F.R. § 404.130 (2016)”. A few months later, that, again per The Bluebook, would become “20 C.F.R. § 404.130 (2017)”. The Indigo Book, being limited in purpose to prying the citation system codified in The Bluebook out of its proprietary wrapper, takes precisely the same position. The ALWD Guide to Legal Citation (6th ed.) goes a step further and addresses the likelihood that the writer has relied on an online compilation more up-to-date than the once-a-year official edition. Acknowledging the e-CFR, it provides in Rule 18.1(c), that if one is relying on its version of the C.F.R. the citation should “indicate the exact date (Month Day, Year) through which the provision is current, and append its URL after the publication parenthetical.” If the writer has, instead, referred to a commercial service’s compilation, ALWD calls for the citation to take the form: “27 C.F.R. § 72.21 (Westlaw through Sept. 29, 2016)”. (The section in its example was last amended in 1995.) In the ordinary case, both are unnecessary.

C. How Federal Judges (and Lawyers Appearing before them) Cite the C.F.R.

With the exception of opinions of the U.S. Supreme Court do which include the year of the current volume in initial citations to the Code of Federal Regulations, the decisions of most federal judges cite its provisions generically. That is, so long as they are referring is to the language of a C.F.R. section currently in effect, they cite it without any indication of date or online source. See, for example, the citations in: Gorman v. Berryhill, No. 3:16-CV-05113 (W.D. Mo., Nov. 30, 2017); Trevizo v. Berryhill, 862 F. 3d 987 (9th Cir. 2017); and Cazun v. Attorney Gen., 856 F.3d 249 (3d Cir. 2017). Briefs filed by the U.S. Justice Department take the same approach.

D. The Publication Lag and Hoped-For Useful Life of Journal Articles May Legitimately Call for The Bluebook‘s or ALWD Guide‘s Approach

Generally, months pass between an author’s completion of a journal article and its eventual publication. Moreover, since publication delays are common, the date carried by the journal issue in which the article appears may or may not correspond to the actual date of its distribution. Finally, against the odds, the author may imagine the piece being read with care for years into the future. Arguably, these factors argue for attachment of an explicit statement of the “current as of date” to all cited statutory and regulatory code sections. At minimum their inclusion reminds an unknown, and perhaps distant, reader to check on whether subsequent amendments may have altered the force of the writer’s analysis.

In contrast, legal briefs and judicial opinions carry explicit dates of filing. So long as there is no indication to the contrary, those reasonably anchor an assumption that all citations to codified statutes and regulations they contain refer to the provisions in effect on that date.

How Should One Think about (and Cite) the U.S. Code?

Monday, December 4th, 2017

I. A Few Recent Changes to the United States Code (Virtual or Generic)

A. The Addition of a New Title

On September 1, 2017 the Office of the Law Revision Counsel, U.S. House of Representatives (OLRC), released a Title 34 of the U.S. Code. It contains no new law. All of Title 34’s provisions had been filed elsewhere in the Code, a fair number of them in the form of notes. The editors of the official code simply gathered the growing number of statutes dealing with “crime control and law enforcement” and organized them into this new location. The results are to be found at the Law Revision Counsel’s online edition.

http://uscode.house.gov/browse.xhtml

The new title is also available in the constantly updated online editions of the U.S. Code offered by LexisNexis, Westlaw, and Cornell’s Legal Information Institute (LII). In dramatic form this poses the question: How should one think about and cite to a provision of the U.S. Code or any of its state counterparts? Is it appropriate to use the new code architecture and cite a 2001 law authorizing the Justice Department to develop and support computer forensic laboratories as “34 U.S.C. § 30102”? (It was previously stashed in a note to 28 U.S.C. § 509.) If not now, when will it be?

B. The Addition of New or Amended Provisions

The same question is posed less starkly each time a new statute of general and permanent applicability becomes law. On August 23, 2017 the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, became law. It amended numerous sections of Title 38 of the Code, one of the 37 titles that Congress has enacted into positive law. Two of the amended provisions are subsections (e) and (f) of 38 U.S.C. § 5103A. Although enacted those changes do not take effect immediately. (That is to happen only “on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs ….”)

Five days earlier Pub. L. No. 115-50 amended Section 3 of the DNA Analysis Backlog Elimination Act of 2000, which had been codified by the Law Revision Counsel in Title 42, one of the non-positive law titles, as 42 U.C.C. § 14135a. With the establishment of Title 34, however, that section including the amendment moved to 34 U.S.C. § 40702.

These changes were swiftly incorporated by the Office of Law Revision Counsel into its online version of the Code. (See its pages for 38 U.S.C. § 5103A and 34 U.S.C. § 40702.)  Following standard practice, 38 U.S.C. § 5103A contains notice of the delayed effective date of the 2017 amendments in an appended note.  From the OLRC site the titles, as revised, were picked up and incorporated immediately into the federal statutory compilations maintained by the major online legal information providers. (See, e.g., the LII’s versions of  38 U.S.C. § 5103A and 34 U.S.C. § 40702.) The OLRC offers bulk downloads in a range of formats (XML, XHTML, PCC, and PDF) to facilitate this rapid republication.

II. Their Delayed Appearance in the United States Code (Physical)

The compilation maintained by the Office of the Law Revision Counsel (OLRC) and available online to both the general public and law publishers is the ultimate source for a set of books put out by the Government Publishing Office (GPO). Every six years the OLRC publishes and the GPO prints a fresh edition.

United States Code (2012 edition)

The next edition to appear will carry a 2018 date, but it will not be produced and delivered until well into 2019 and 2020. In between editions there are annual supplemental volumes. They cumulate all changes made up to their cutoff date. The changes noted above will be contained in Supplement V to the 2012 edition of the code likely to be available in late 2018. Volumes and the annual supplements are produced sequentially so that titles with lower numbers and supplements to them appear in print sooner than, say, Titles 34, 38, or 42. As the print volumes are produced an electronic replica in PDF is placed, with authentication at the GPO website, in its FDsys (Federal Digital System) collection. Unlike their print counterparts, these files do not separate statutory text and notes into core volume and cumulative supplement. When the 2017 version of Title 38 appears at the FDsys site in late 2018 it will contain the full title as amended through the beginning of the year.


Authentication of Supplement IV Containing Title 38

III. Ought One to Cite to the Virtual or Generic United States Code?

A. What Do the Leading Manuals Say?

Citation manuals also appear in periodic editions.  This fall brought a new, sixth edition of the ALWD Guide to Legal Citation. (More on this Bluebook competitor in a later post). Tracking the fifth edition it states in Rule 14.1:

Federal statutes are cited either to the official print version of the United States Code (preferred, although it is rarely up to date …) or to the authenticated online version of the code in the Government Publishing Office’s Federal Digital System (“FDsys”)…. Cite an authenticated federal statute in FDsys the same way you cite it in print.

Like The Bluebook, which it essentially mimics on this point and most others, the ALWD guide appears to forbid citation to any of the revised portions of the Code noted above in the format “__ U.S.C. § __” until they have been published by the government in print or the authenticated digital replica. In the interim, for new law, citations to print session laws (or presumably their digital counterparts) are preferred. For a revised packaging of prior law, such as the new Title 34, guidance is less clear. Neither manual has adjusted to the availability of a continuously updated version of the code directly from the public body responsible for its publication.

B. What According to Prevailing Professional Usage Does a “U.S.C.” Citation Represent?

Some time ago, in discussing whether The Bluebook‘s copyright extended to the system of citation it codified, I cited 17 U.S.C. § 102(b), which reads:

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.

Does the citation of “17 U.S.C. § 102(b)” as the source for that passage represent that I reviewed its text in the GPO print publication or on FDsys? Both the Bluebook and ALWD Guide appear to say so.  (Had I used Westlaw as my source they would have the cite read “17 U.S.C.A. § 102(b)”.) My intention and, I would argue, the widely understood meaning of the form of my citation was only to identify the location of the quoted passage in any of the many reliable, up-to-date versions of the Code.

In addition to their attachment to print the two academic citation manuals reflect the continuing strong influence of Thomson Reuters and Reed Elsevier. Both manuals allow citation to those companies branded versions of the United States Code (U.S.C.A. and U.S.C.S.) as a fallback. The ALWD Guide to Legal Citation explicitly places them ahead of named commercial alternatives (including Bloomberg Law and Fastcase) and ignores the leading noncommercial source (LII). On what grounds? Revealingly neither mentions the OLRC’s online version of the code on which all others are based.

C. The Use of “U.S.C.” as a Generic Reference

Long ago when the only statutory compilations were those published in print, alternatives could be counted on a few fingers, and publication lag was substantial and varied among them, a requirement that a statutory citation reveal which version the writer had relied upon was defensible. No longer. In 2017 “U.S.C.” amounts to a generic designation, almost certainly employed by the reader to find the cited provision not in the GPO book but in some online database, very likely one different from that used by the writer. Federal judges whose opinions reveal their reliance on Westlaw by the prevalence of “WL” citations to “unpublished” cases cite the Code generically.

D. Brand Reinforcement as a Vestigial Counterforce

A subscriber to Bloomberg Law who takes advantage of its “copy with citation” feature receives that citation in generic format, “__ U.S.C. § __”.  However, a Westlaw subscriber using that service’s “Copy with Reference” feature is furnished a “U.S.C.A.” citation, and “advanced copy” on Lexis cites the same section to “USCS”. Because of such “citation assistance” and the durability of citation habits forged in the print era, citations to those two commercial compilations still appear occasionally in briefs and judicial opinions. Rarely are they used selectively, i.e., limited to provisions not yet available in the print United States Code. Typically, a judge or lawyer who cites to U.S.C.A. or USCS today does so throughout a brief or opinion. See, e.g., HSP v. JK, 223 N.J. 196 (2015), Bank of America, NA v. Camire, 2017 ME 20.

IV. Indicating Chronological Version as Distinguished from Source

When Congress has injected new law into a positive law title of the Code or passed new law that the Office of Law Revision Counsel has compiled into one of the non-positive law titles and when the OLRC has gathered existing statutes into a new title, it is critical that a U.S. Code citation not generate confusion. Does it refer to the Code as it stood before or after the change? In most lawyering settings, a citation to the Code carries the implicit representation that the writer is referring to the Code as it stood when the brief was submitted or the opinion written. (Journal articles, the prime concern of The Bluebook and ALWD Guide to Legal Citation, carry no such clear “as of” date and therefore pose a greater risk of version uncertainty.) A citation to 34 U.S.C. § 30102 will frustrate any reader looking for the section in the GPO’s print or online version of the code. On the other hand, when entered in Google or any of the major online databases it will yield results. The exceedingly cautious writer can add an explanatory parenthical such as “(Prior to the 2017 codification of Title 34 this section appeared as a note to 28 U.S.C. § 509.)”

From Blue to Indigo to …

Friday, May 20th, 2016

indigo

A New Citation Guide

A legal citation guide of a different hue, The Indigo Book, arrived on the scene this spring. Like the University Chicago Law Review’s Maroonbook, it was born of frustration over The Bluebook – but frustration of a very different kind.  The Maroonbook, first published in the late 1980s, still followed and revised by the University of Chicago Law Review, aimed to supplant The Bluebook’s complex and detailed dictates with “a simple, malleable framework for citation, which authors and editors can tailor to suit their purposes.”  In contrast, The Indigo Book, seeks to pry loose those very dictates, or at least the subset most important for participation in U.S. legal proceedings, from the intellectual property claims made by The Bluebook’s proprietors.

Working under the guidance of NYU copyright expert, Professor Christopher Sprigman, a team of students spent over a year meticulously separating the “system of citation” reflected in The Bluebook from that manual’s expressive content – its language, examples, and organization.  The Indigo Book is the result.  Like the ALWD Guide to Legal Citation, first published in 2000, it endeavors to instruct those who would write legal briefs or memoranda on how to cite U.S. legal materials in complete conformity with the system of citation codified in the most recent edition of The Bluebook while avoiding infringement of that work’s copyright.

Unlike the ALWD Guide, which competes with The Bluebook for a share of the lucrative legal education market at a similarly substantial price, this new entrant is free.  It can be viewed online or downloaded, without charge, in either of two formats – PDF or HTML.  As the work’s forward explains, providing “pro se litigants, prisoners, and others seeking justice but … lack[ing] resources … effective access to the system lawyers use to cite to the law” was, for its creators, an important goal.

Relatively few U.S. jurisdictions formally require that citations in court filings conform to the scheme set out in The Bluebook.  (I count one U.S. circuit court, a handful of U.S. district courts, and the appellate courts of eleven states.)  But Bluebook-compatible citations are consistent with the rules of most.  By removing price as a barrier and focusing on the legal materials most frequently cited in U.S. proceedings, this guide of a different color seeks to improve access to the nation’s judicial system.

Establishing a Space for Innovation

The Indigo Book is free in a second, more radical sense.  It has been released with a Creative Commons public domain dedication.  Anyone can copy and redistribute it.  Anyone can create new and different works based upon it.  No further permission from the creators or publisher is required.  The aim here is said to be the clearing of this zone, so important to our legal system, for further innovation.

From the very outset, The Indigo Book project has been both goaded and troubled by overbroad copyright threats and innuendo from The Bluebook’s proprietors and their attorneys.  (Carl Malamud, who has been central to the project and whose Public.Resource.Org is Indigo‘s publisher, tells the full lamentable story here.) By separating the widely used system of citation codified in The Bluebook from its particularized expression, The Indigo Book seeks to build a wall between such claims and the projects of future software and database developers and citation guide authors.

“Not Authorized by Nor in Any Way Affiliated with …”

Why indigo?  As discussed in an earlier post, the four law journals that publish The Bluebook hold registered trademarks in three variations of that name.  The Indigo Book was, for a time, going to be “Baby Blue.”  The law firm representing the Harvard Law Review Association demanded that the title be changed and that it not be replaced by one “consisting of or comprising the word ‘Blue’”While denying that “Baby Blue” posed any risk of trademark confusion or dilution, the creators of the new guide decided, nonetheless, to change its name rather than waste time and money on litigation.  Quite possibly they shared Isaac Asimov’s view:

It is customary to list indigo as a color lying between blue and violet, but it has never seemed to me that indigo is worth the dignity of being considered a separate color. To my eyes it seems merely deep blue.

What Are the Likely Prospects for the New Guide?

In legal education

The Bluebook is published by four law journals and commands the allegiance of nearly all law student-edited reviews in the country.  Due to the place of those reviews in law school culture, faculty members responsible for courses on legal writing are under powerful pressure to teach the “Bluebook” rules.  Over time that pressure induced the Association of Legal Writing Directors (ALWD) to bring that organization’s competing guide into complete conformity.  Like the new Indigo Book, the ALWD guide is better organized than The Bookbook itself and, on many points, clearer in explanation and illustration.  It, too, has saved space and maintenance burden by limiting itself to U.S. sources.  Even so, powerful network effects have limited its market share.  For The Bluebook is not merely manifest in the format of the citations it enables journal editors, legal academics, lawyers, and legal assistants to produce.  It also represents a matrix of rule numbers and tables that facilitates communication about and resolution of citation issues.  Biblical exegesis is characterized by reference to chapter and verse.  Law review debates over proper citation form refer to Bluebook rule numbers, tables, and text.  Even at the powerfully attractive price point of free, The Indigo Book will run up against the dependence of most citation discourse within America’s law schools, student-edited journals, and large firms on The Bluebook’s classificatory scheme and specific language.

As a Resource for “pro se litigants, prisoners, and others seeking justice”

In the form released the new guide is also unlikely to be of much aid to those navigating the legal system on their own.  By seeking to liberate the full system of citation explicated in 350 or so of The Bluebook’s pages, Indigo had, of necessity, to be far more detailed than any useful self-help guide should be.  Moreover, that detail incorporates numerous points on which The Bluebook reflects the undue influence of major publishers and many others in which is out of step with the evolving citation practice of lawyers and judges responding to the proliferation of electronic sources.

By placing their guide in the public domain, however, The Indigo Book’s creators have made it possible for groups preparing pro se handbooks, web site resources, and courthouse kiosks to draw upon it in preparing appropriately tailored citation guidance.  Other derivative work possibilities abound.  Bar groups or court systems may well be tempted to prepare citation manuals adapted to state-specific citation requirements and norms.  Citation software developers should be able to proceed without infringement fears. All of this is to be hoped for.

As the author of a free citation reference, now in its twenty-third year, I welcome The Indigo Book and all its future progeny.

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.

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.

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.

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).

compare_active

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.

usersguide

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

alwd

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.