Archive for the ‘Journal articles’ Category

“Copy with Reference”

Tuesday, November 10th, 2020
Westlaw

A 2014 review in this blog of the citations delivered by the major online research services along with copied blocks of text concluded:

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.

Six years on, the gap between promise and performance of the “copy with reference” feature of these systems has not diminished.

Incomplete Citations

Codified Material (Statutes, Regulations, Court Rules) — A Consistent Failure

To begin where that prior review ended, citations to highly structured documents like statutes, regulations, and court rules commonly require more than the section or rule number. The copied material may lie deep within a nested framework of numbered or lettered subsections and paragraphs. A full citation to a key passage must specify its exact location within that structure. For examples, consider 42 U.S.C. § 416(h)(1)(B)(i), Ky. Rev. Stat. § 355.4-406 (4)(b), 20 C.F.R. § 404.1520(d), and Fed. R. Civ. P. 19(b)(2). A researcher drawing crucial language of any of those provisions from a non-commercial online source will either copy the entire section or rule or, presumably, know that a copied sentence or two must be accompanied by a full designation reaching all the way down to the subsection, paragraph, or subparagraph level. Copy any of the cited passages alone, from Bloomberg Law, Fastcase, Lexis, or Westlaw and the citation or reference that accompanies it will contain only the section or rule number.

Journal Article References — A Problem on Lexis

In accordance with standard citation practice, a specific passage copied out of a journal article, with reference, from Westlaw will be designated:

Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 74 (2004)

The same passage copied from Lexis carries only the following elements:

ARTICLE:The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 74

If the researcher doesn’t want to return, at some later point, to complete her citation to the copied passage, whether in a memorandum, brief, or article, that information must be added to the citation produced by Lexis, manually, at the time the passage is copied.

A researcher on Fastcase and HeinOnline who downloads the pertinent page or the entire article in pdf will receive it covered by a page furnishing the article’s citation in seven different styles including “Bluebook 21st ed.” Since the downloaded file will include the full page on which the passage appears, all the information that will be required for a complete, properly formatted, citation is available.

Bloomberg Law has no law journal database and, therefore, does not pose the problem.

Non-Compliant “Standard” Format Citations

Both Lexis and Westlaw continue to treat citation as a form of branding. The (incomplete) “standard” format citation Lexis furnishes for the U.S. Code provision listed above is “42 U.S.C.S. § 416 (LexisNexis, Lexis Advance through Public Law 116-163, approved October 2, 2020)” while Westlaw delivers “42 U.S.C.A. § 416 (West).” In jurisdictions where these two companies compete in print, their respective citations to state statutes exhibit the same tendency. On Lexis, even the federal rules receive this treatment: “USCS Fed Rules Civ Proc R 19” instead of “Fed. R. Civ. P. 19.” Unlike the failure to furnish a complete designation for a copied passage, this proprietary flavor of a “standard” format can be rectified in a final piece of writing through use of a “search and replace” that converts all statutory, regulation, and rule citations to their official or generic form.

The same is true of non-compliant case name abbreviations. The “standard” format case references of both Lexis and Westlaw, as well as the citations delivered for cases by Bloomberg Law and Fastcase deviate in some particulars from the abbreviations set out in The Bluebook. (20th ed.). (To date, none have moved to the additional and altered abbreviations of the latest edition.) For example, Westlaw favors the abbreviation “Nat.” over The Bluebook‘s “Nat’l” for “National,” Lexis follows The Bluebook, Bloomberg Law reduces “National” to “Natl.” and Fastcase leaves the word in full. Both Lexis and Westlaw followed The Bluebook‘s 2015 switch from “Adver.” to “Advert.” as the abbreviation for “Advertising” and from “Cnty.” to “Cty.” for “County.” Bloomberg Law did not; Fastcase abbreviates neither word.

The good news is that all four systems appear quite consistent in their treatment of case names. As a consequence, to the extent that close Bluebook adherence is important to a writer who has relied consistently on any one of them, a “search and replace” operation can address discrepancies. For most purposes, that consistency itself is sufficient. The California Style Manual explicitly authorizes use of “a shortened title shown in a computer-based source” for cases.

Jurisdiction-Specific Citation Formats Generated by Lexis and Westlaw

Lexis and Westlaw invite the user to select among an array of formats for the citation attached to a copied passage. The format choices offered by Lexis include “Standard,” “ALWD,” and all fifty states. Westlaw’s list adds a “Westlaw” format option, but includes only 34 states plus the District of Columbia. (Omitted are smaller states in which Thomson Reuters does not sell a West-branded statutory compilation in print.)

Westlaw’s omission of states like Alabama, Alaska, Arkansas is particularly troubling since they (and numerou others) have quite distinctive local ways of citing their own codified statutes and regulations. See Basic Legal Citation § 3-300. Within Alaska, for example, a provision for which The Bluebook prescribes citation in the form “Alaska Stat. § 28.22.011 (<year>)” will be cited “AS § 28.22.011.” Choosing the “Alaska” format on Lexis gets that result, albeit with a brand and date element appended “(Lexis Advance through 2020 SLA, ch 32).” Overall, Lexis does a better job of furnishing state-specific versions of citations to statutory and regulatory codes.

In jurisdictions where there is an official report, Lexis gives the user a choice as to whether to attach it to a copied case reference, whether to include a citation the Thomson Reuters regional reporter, or whether to provide both. Citing an Illinois case to an Illinois court, one need not include any parallel citation. The medium neutral, public domain citation, by itself, is complete — “Yarbrough v. Nw. Mem’l Hosp., 2017 IL 121367, ¶¶ 21-22.” Lexis will produce Illinois citations in that format. In contrast, Westlaw gives the user no choice over whether a reference will include the company’s parallel regional reporter citations. Its Illinois version of the same reference (containing four unnecessary words) is: “Yarbrough v. Nw. Mem’l Hosp., 2017 IL 121367, ¶¶ 21-22, 104 N.E.3d 445, 448–49.”

In Conclusion

As of 2020, none of the “copy with reference” features of the major online legal research services can be relied on to provide complete, pinpoint citations of the principal categories of primary legal authority, in either fully compliant “standard” or jurisdiction-specific format. While they are, unquestionably, a convenience, they do not remove the need for a user to have full command of the requirements of legal citation.

Bluebook Weight Loss Program – Part Two: The Merger of Tables T6 and T13.2

Friday, October 16th, 2020

The twenty-first edition of The Bluebook has eliminated the separate table that previously prescribed how to abbreviate common words appearing in the name of a cited publication.  That table, Table T13.2, was a single purpose reference, to be used solely when citing articles.  Its columns, together with the institutional abbreviations contained in Table T13.1, turned “Harvard Law Review” into “Harv. L. Rev.”, “Yale Law Journal” into “Yale L.J.”, and “Journal of Law, Economics, & Organization” into “J.L. Econ. & Org.”  A writer consulted Table T6, not T13.2, when abbreviating a word in a case name or in the name of an institutional author.  In this latest edition, The Bluebook has collapsed the two.  The new, consolidated, T6 applies to case names, and to the names of publications, as well. 

Modest Gains

For the sponsoring organizations this constitutes the type of periodic revision valued by all publishers of higher education texts. It is the sort of change that will, inevitably, undercut the market for second-hand copies of The Bluebook‘s prior edition among the nation’s annual 38,000 or so beginning law students. For users the merger achieves only a slight reduction in the book’s heft—two pages, plus or minus. Any additional gains for a novice user of the reference, one of those beginning law students, say, are less clear.  For legal professionals committed to Bluebook compliance, as well as the research services and citation software tools upon which they rely, the change raises confounding issues.

Significant Costs

Unnecessary and Confusing Case Name Abbreviations

Providing separate tables for distinct types of material poses little risk of confusion, allows them to be tailored to the word patterns characteristic of each type, and relies on an abbreviation’s context to assist the reader.  (The Bluebook continues to employ many special purpose tables—one for court names, another for legislative documents, etc.) Set against uncertain gains, the merger of T13.2 and T6 has definite costs.  Collapsing the two deploys abbreviations that worked well so long as it was clear that they were part of a publication title into a setting in which they are far more likely to confuse.  The word “Law,” ubiquitous in journal names, illustrates the poor fit.  “Law” was never a candidate for a case name abbreviation.  Party names contain many more, much longer, “L” words.  In the new T6 “Law” has two entries and accompanying instructions on when to use each.  “Journal” at seven letters was not abbreviated in prior versions of T6, but as part of a periodical name the single letter “J” served as an intelligible stand-in.  Had “Journal” been included in the pre-merger T6 it would most likely have been trimmed to “Jour.”  (The only single letter abbreviations contained in that T6 were for the four cardinal directions.  Consistency with reporter abbreviations in Table T1 would have rendered “Atlantic” as “A.” but it is, and continues to be, shrunk only to “Atl.” when part of a case name,)  Consider a 2018 decision of the Nevada Supreme Court.  Per The Bluebook’s twentieth edition, the case should be cited as: “Clark Cty. Sch. Dist. v. Las Vegas Review-Journal, 429 P.3d 313 (Nev. 2018).”  Run through the new consolidated Table T6 its name becomes: “Clark Cty. Sch. Dist. v. Las Vegas Rev.-J.”

Only “University” has been spared merged treatment.  The T6 instructions conclude with a paragraph that applies solely to periodical titles.  It directs that although the abbreviation for “University” in T6 remains “Univ.” when that word is part of a journal name it can (and should) be reduced to “U.”

The Inclusion of Abbreviations for Words that Infrequently Appear in Case Names

Any number of the words moved from Table T13 into Table T6 have fewer than eight letters.  Many of those appear rarely, if ever, in case names.  Examples include: Africa, Ancestry, British, Civil, Cosmetic, Digest, Dispute, English, Faculty, Forum, Human, Injury, Labor, Lawyer, Library, Military, Mineral, Modern, Patent, Policy, Privacy, Record, Referee, Statistic, Studies, Survey, Tribune, Week, and Weekly.  Inserted into a table used to abbreviate case names, words like these constitute unnecessary clutter.  Their prior placement in Table T13 alongside the Institutional name abbreviations with which they often must be combined (abbreviations which remain in T13) provided the writer doing a lookup or format check on a journal citation, a simpler path. 

Displacement of Established and Intuitive Case Name Abbreviations

The merger also forced, otherwise unnecessary, changes in a number of case name abbreviations.  Separate tables allowed different abbreviations for the same word, with context determining which to use. The universe of journal names is many multiples smaller than that of party names.  In a citation they stand next to the full, unabbreviated title of the cited article and the author’s name.  This warrants a very different trade-off between the saving of space and clarity of reference.  That is why abbreviating “Law” as “L.” and “Journal” as “J.” and “Review” as “Rev.”—in the context of a journal name—works, while abbreviating a litigant named “Los Vegas Review-Journal” as “Los Vegas Rev.-J.” seems both unnecessary and cumbersome. That is why abbreviating “Employ,” “Employee,” and “Employment” as “Emp.” worked in a separate table for journal titles, but erasing the distinctions among “Employee” and “Employer” and “Employment,” as the merged T6 does, reduces clarity.  One can readily read and refer to “White v. Mass. Council of Constr. Emplrs, 460 U.S. 204 (1983)” (abbreviated according to prior editions of The Bluebook) by name, while “White v. Mass. Council of Constr. Emps., 460 U.S. 204 (1983)” (abbreviated per the twenty-first edition) leaves a reader unsure, without checking, whether it is the “Massachusetts Council of Construction Employers” or the “Massachusetts Council of Construction Employees.”  Previously, the abbreviation “Lab.” stood for “Laboratory” in a case name, “Labor” when it appeared in a journal title.  In context both were clear and not a source of confusion.  The table merger forced disambiguation.  “Laboratory” became a totally non-intuitive and unfamiliar “Lab’y”. Grotesquely, under the general rules on plurals that results in an abbreviation for “Laboratories” of “Lab’ys” (already, the subject of justifiable ridicule).

Will the Change Alter Professional Citation Practice?

To what degree will such changes in Bluebook abbreviations affect professional, as distinguished from academic, writing?  The answer is unclear.  It depends, in large part, on how the online research services and electronic legal citation formatting tools respond.  Case name abbreviations remain a matter of significant jurisdictional variation.  For certain, the U.S. Supreme Court will continue to cite its 1983 White decision by the name “White v. Massachusetts Council of Constr. Employers, Inc.”  Illinois appellate courts citing it will not even abbreviate “Construction.”

In part because of this degree of jurisdictional variation, the two dominant legal data vendors offer “choice of format” in their copy-with-citation features.  Among the choices both offer for cases is one labelled “standard.” 

Currently, both LEXIS and Westlaw provide a “standard” format case name for this 1985 decision of the U.S. Supreme Court at 471 U.S. 707 of:  “Hillsborough Cty. v. Automated Med. Labs., Inc.”  Will they, should they convert “Labs.” to “Lab’ys”?  Will they, should they retrospectively convert all the case names they deliver as part of a “standard” citation to the word abbreviations brought into T6 from T13.2 or altered there because of the merger?  When the twentieth edition of The Bluebook arbitrarily altered the abbreviation for “Advertising” from “Adver.”  to “Advert.” and the abbreviation for “County” from “Cnty.” to “Cty.“ in 2015, LEXIS and Westlaw followed. Bloomberg Law did not.  “Adver.” still regularly appears in appellate brief citations.

As yet, none of the online research systems have incorporated the numerous new abbreviations resulting from The Bluebook’s 2020 table merger.  Will they? May they not, instead, decide that the abbreviations resulting from this ill-considered move don’t warrant the label “standard,” since they fail to conform to widespread professional practice?  An option they might consider is the addition of a new “law journal” format to their array of options, thereby meeting the need of those law student editors and academic writers for whom Bluebook conformity is essential.  A similar puzzle over audience or market confronts those numerous other enterprises that provide legal citation formatting tools and citation guides.

One Journal’s Defection from The Bluebook – Its Reasons and 6-Page Replacement

Tuesday, October 11th, 2016

Past posts have noted many points of divergence between the citation norms manifest in most judicial and lawyer writing and The Bluebook‘s dictates. They include such matters as case name abbreviations, the identification of a writer’s online source for cited primary authority, the format and content of treatise citations, and inclusion of a currency date in citations to statutes or regulations. The Bluebook‘s continued reign over law journal commentary and programs of instruction on professional writing in U.S. law schools has largely been taken for granted. Its dominance within the legal academy is undeniable.

Ten years ago Professor Ilya Somin of George Mason explained that dominance in terms of market failure. He argued that it was primarily a result of the decision’s being made by short-termers, student board members at a time they no longer bear the cost of compliance and who, having previously mastered The Bluebook‘s arcane rules, derive some satisfaction from imposing them on their successors as a form of hazing. In a companion Bluebook critique Professor Somin noted that The University of Chicago Law Review had, without evident loss of quality or prestige, employed a simpler and more rational citation scheme ever since 1986.

maroonbook

Today that journal still follows its own citation guide, the “Maroonbook.” The University of Chicago manual is not a rule-for-every-situation guide. It aims, instead, to establish a framework for citation, in which general principles of sufficiency, clarity, consistency, and simplicity operate. In length it runs to 85 pages compared to The Bluebook‘s 560.

Now, in 2016, comes another law journal breakaway with an even more radical rejection of Bluebook rules and specificity. The citation guide released this week by The Berkeley Journal of Gender, Law & Justice consists of a mere six pages of principles and examples. The student editorial boards of other law school-based journals would do well to consider the reasons listed as propelling this change. The first cited by the Journal of Gender, Law & Justice is the barrier that Bluebook compliance places in front of both scholars from other disciplines and practicing lawyers, thereby privileging the work of a relatively small group of authors. Those the requirement favors, of course, are legal academics, who by virtue of background, resources (in the form of student assistants), or both can conform their references to Bluebook mandates. A second reason cited is the costly diversion of editorial time and effort away from attention to an article’s substance in order to scrutinize and perfect the format of its footnotes. Lastly, the editors express concern about the the difficulty for readers, particularly those situated outside the legal academy, posed by the Bluebook‘s terse encoding of journal names. (They employ “J. Mar. L. & Com.” as an example.)

bjglj

Will others likely follow? The process of article submission has moved online. Rarely, today, are articles prepared for and submitted to a single journal. Using services like Expresso and Scholastica most law faculty members submit their scholarly writing to multiple journals at once. The vast majority of those journals require citations of submitted manuscripts to be in Bluebook form. This adds a powerful network effect to the factors of market failure cited by Prof. Somin and the prestige and strength of The Bluebook brand. As sound a decision as The Berkeley Journal of Gender, Law & Justice has made, it seems unlikely to foreshadow a large scale exodus of journals through The Bluebook‘s force field.

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.

What does the start of a new year mean in legal citation?

Tuesday, January 7th, 2014

A year change prompts reflection on the roles dates play in legal citation. I use the plural “roles” because of the diversity of functions dates serve in citations.  With some sources they are largely superfluous; with others, they are critical to retrieval.

Cases

As noted in a prior post, the full date of release is a crucial part of the identifying data for any unpublished opinion. Among the decisions released this week by the Second Circuit is one that should now and into the future be cited as: Wager v. Littell, No. 13-1683-cv (2d Cir. Jan. 6, 2014).

In all U.S. jurisdictions that have adopted systems of medium neutral case citation, the year of a decision is an integral part of its cite or retrieval tag. The decision, People v. Radojcic, 2013 IL 114197, would have been designated 2014 IL 114197, had it been released by the Illinois Supreme Court during the early part of 2014 rather than on Nov. 21, 2013. On Dec. 23, 2013, the Colorado Supreme Court released its opinion in People v. Cunningham, 2013 CO 71. Had it instead been the court’s first decision of this month it would have been 2014 CO 1. (Illinois and Colorado employ different systems of designating decisions rendered within the year.)

In a majority of U.S. jurisdictions, however, the year of a precedential decision is not critical for identification or retrieval. Nonetheless, it is routinely included as one element of a complete case citation. Thus, when a 2013 decision of the U.S. Supreme Court cites an earlier decision, that decision is identified as Trainor v. Hernandez, 431 U. S. 434, 443 (1977). Why include the year? “431 U.S. 434” provides all the information one needs to retrieve that earlier decision from any database or library shelf? The reason presumably is that knowing the year of a decision may help a reader to decide whether to look at it. It provides useful but not critical information.

Finally, it may be worth noting that the year incorporated within a decision citation is not the year that the case was compiled into a print volume or that the volume was finally published but rather the year the decision was issued.

Statutes

Citations to session laws generally include the year of enactment. Indeed, the year is often part of an act’s name. If the legislation has not been named, its full date will be employed for that purpose, as, for example, “Act of Dec. 9, 2013”.

What to do when citing to a section of a jurisdiction’s codified laws is bit of a puzzle. Should a year be furnished and, if so, what year? Now that the year is 2014 has section 110 of title 17 of the United States Code become 17 U.S.C. § 110 (2014)? Is that a function of the cutoff date of the writer’s source?

The most recent print version of 17 U.S.C. § 110 published by the Government Printing Office appears in a set denominated the 2012 edition. However, since that edition extends through the term of the 112th Congress it, in fact, includes laws passed and signed into law in the early days of 2013. The volume in which 17 U.S.C. § 110 appears was printed in 2013. Other volumes of the 2012 edition have yet to appear.  Westlaw doesn’t provide an “as of” date for this or other sections of the U.S. Code but it does report that the most recent amendment of this particular section took effect on April 27, 2005. Lexis represents that its version of the U.S. Code is “Current through PL 113-57, approved 12/9/13.” The LII notes of its version “Current through Pub. L. 113-52” without providing a date. However one interprets of The Bluebook’s prescription on this point, it definitely calls for some date to be appended to 17 U.S.C. § 110, in parentheses.

The more sensible approach, at least in legal writing produced by or for courts, is that followed by the U.S. Supreme Court. So long as an opinion of the Court is referring to sections of the code currently in effect, its citations include no date element. The lower federal courts follow the same practice as do most lawyers submitting briefs to federal courts. One also finds dateless statutory citations in the appellate decisions and briefs from such prominent states as California, Massachusetts, New York, Pennsylvania, and Texas.

Only when the provision being cited has, by the time of writing, been repealed or amended or has only recently been enacted does it become important to specify the date of a compilation that contains the language being cited. The precise form this takes will necessarily be governed by the form in which that compilation presents its cutoff date, and it ought to report the compilation date not the year that compilation appeared in print or online.

Regulations

The considerations bearing on citations to regulations appear very much the same. However, professional practice is less consistent. Justices of the U.S. Supreme Court and judges of lower federal courts will often include the year of compilation for a Code of Federal Regulations provision in an opinion’s first citation to it, leaving the year off all subsequent references. Arguably, for as long as annual print compilations constituted the principal source for codified regulations that approach furnished useful information. Today, with constantly updated compilations maintained not only by commercial online services but the Government Printing Office, it makes better sense for both writer and reader to understand that a citation in a brief or opinion to 37 C.F.R. § 205.22 refers to the provision in effect at the time of writing. With a section that has not changed since 2008, the addition of 2013 or, as of last week, 2014 in parentheses serves little purpose. For that reason many judges and lawyers would cite to 37 C.F.R. § 205.22 (or a state equivalent) without indicating a year, again, unless the litigation concerned an earlier version or the regulation in question has undergone recent change.

Commentary

Dates are far less precise and therefore less useful in citations to journal articles. Because publication delays are common with student-edited journals, numerous articles that failed to appear in 2013 will nonetheless carry that date.  Many destined to appear in 2014 last received attention from their author or an editor in 2013. Judicial opinions, legislative enactments, and regulations all carry specific release or effective dates.  Individual journal articles do not. Notwithstanding the imprecision and limited utility, attachment of the nominal year of publication to article citations is accepted practice.

The same holds for treatise  citations with greater reason and despite a further difficulty. Most major treatises have been acquired by an online research service and are bundled with the service’s primary law materials.  In both print and online form they are updated at least annually. In print, the updates may be integrated, the case with treatises published in a looseleaf format, or they may be issued in a separate supplement.  Online, they are integrated without any indication of what was changed or when. Under these circumstances, how should one date a section of A. Wright, A. Miller & M. K. Kane, Federal Practice and Procedure or M. Nimmer & D. Nimmer, Nimmer on Copyright in a brief or opinion prepared during 2014? Should that depend on whether one accessed the material in print or online? Assuming that one is citing to the current work rather than a prior edition or version, the best practice is to cite to the year of the most recent update or revision of the source relied on. Following that practice one would in January 2014 still use the year 2013 for both those works since they were last updated during that year, a fact noted in their print and electronic versions.

The updating phenomenon bestows greater importance on the date associated with a treatise citation. Unlike journal articles these are not static works. A reference to a particular section as it existed some years ago, 2004 say, or 1994, may well, if followed into the current version of the treatise, take the reader to significantly different text . The year accompanying the citation provides a reminder of that reality even though it may be difficult verging on impossible for those working in a contemporary research environment to determine exactly how the cited section read in 1994 or 2014. Neither Lexis (Nimmer & Nimmer) nor Westlaw (Wright & Miller) archive past versions of their treatises online as they do past statutory codifications.

Cite thoughtfully in 2014!