Archive for October, 2020

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.

The Bluebook’s 2020 Weight Loss Program – Remove All Foreign Citations

Wednesday, October 7th, 2020

The twenty-first edition of The Bluebook has shed a lot of weight.

20th edition | 21st edition

At 365 pages the citation reference has slimmed down over one-third to its dimensions of twenty-four years ago.  Up through the twentieth edition published in 2015 (560 page) successive editions exhibited unrestrained growth.  The trend was reversed this year, principally by transferring all of Table T2 (Foreign Jurisdictions) to the www.legalbluebook.com web site.  There, unlike the rest of the site’s content, it can be accessed without charge.  (Still in the print edition and therefore behind a paywall are Tables T10.2 and T10.3 upon which T2 draws.)  In a single move that trimmed 184 pages, pages that for most Bluebook users, legal practitioners especially, were simply added bulk and weight.

That is weight that the ALWD manual (now ALWD guide)—with its greater emphasis on the citation needs of U.S. legal professionals—has never tried to carry.  A single sentence in the first ALWD guide offered sound, if incomplete, advice: “If you need to cite a legal source from a foreign country, we suggest using the form of citation adopted by the country whose law is being cited.”  Missing from that formula is an instruction that a U.S. out-of-country citation should note the country of origin if that is not clear from the core cite or context.  Consider “R. v. Pires, 2005 S.C.C. 66, at para 8.”  For a Canadian lawyer or judge that is a complete pinpoint citation to a specific passage of a constitutional decision of the Canadian Supreme Court.  Placed in U.S. brief it needs more; however, a trailing “(Can.)” should suffice.

Why Not Let Go of the Table Altogether?

The decision to move The Bluebook’s Table T2 to the web was sound.  Wiser still would have been a decision to drop it altogether.  The ALWD Guide to Legal Citation now refers its users to the Guide to Foreign and International Legal Citations of the NYU Journal of International Law and Politics.  Keeping Table T2’s content up-to-date for forty-four countries is patently beyond the reach of student law journal editors.  In the current era, sluggish maintenance can result in an anachronistic print bias and subject the effort to the influence of commercial publishers.  Those flaws can be seen in Table T2’s treatment of Canada.  The entry for Canada can be read as advising that a U.S. citation to Pires be constructed as: “R. v. Pires, [2005] 3 S.C.R. 343 (Can.),” using volume and page number rather than the neutral citation scheme that the Canadian Supreme Court has employed for two decades.  Public domain, medium neutral, citation is mentioned in the Canada entry and said to be “preferred.”  In context, however, that appears simply to mean that the neutral citation should be placed in front of the print reporter citation, not that it should be used in its stead.

Commercial Influence or Bias?

Under the heading “Case citations to electronic systems,” the table describes Westlaw Canada and Quicklaw, as the country’s “main” ones—a puzzling elevation of those subscription services, to which many in the U.S. will not have access, over CanLII, the public site funded by the Federation of Law Societies of Canada.  From the CanLII database any U.S. lawyer, judge, or journal reader can retrieve a contemporary Canadian decision by its neutral citation without charge.  Moreover, in describing the CanLII approach to citation, the entry fails to distinguish between its treatment of cases that come with court-supplied neutral citations and the dwindling number that do not.

Inadequate Maintenance

The Bluebook’s preface asserts that “eleven jurisdictions in Table T2 have been comprehensively updated and one new jurisdiction has been added.”  The eleven countries are not identified (Portugal is conspicuous as the new entry.) and unless “comprehensively” is very generously construed Canada is not among the updated.  (The Cases portion of that country’s entry has seen minimal change since the nineteenth edition, published a decade ago.)  Other jurisdictions that have implemented systems of neutral citation in the modern era (e.g., South Africa) are similarly still thrust by T2 into a volume, reporter name, page number template.  Although not consistently, New Zealand is an exception.  That country’s entry directs: “If a medium-neutral citation has been assigned by the court it should be used to cite the case. If the case has also been reported, cite the medium-neutral citation followed by the citation to the report, separated by a comma. Do not give the court identifier at the end of the decision, as this is evident from the neutral citation.”  The question in this case is: Why include a parallel citation to a print report?  A Google search using its neutral cite will retrieve a decision of the New Zealand Supreme Court.  A parallel citation to its volume and page number in the New Zealand Law Reports has minimal utility to a U.S. lawyer, judge, or journal reader.

More serious failures to update dot the online Table T2.  The Republic of Zambia’s 2016 Constitution established a Constitutional CourtThat nation’s entry in The Bluebook table, unchanged since 2015, does not list it.  Also unchanged is the guidance for Kenya.  As a result, the citation system now employed in the official database holding the case law of that country and used by its courts—case name> [<year of decision>] eKLR—is not described.

Table T2’s Minimal Utility

Citations to foreign case law in U.S. journals, other than those focused on comparative law topics, are rare.  They are even less common in U.S. legal proceedings.  America’s neighbor to the north is its second biggest trading partner.  Yet over the past five years only a handful of U.S. appellate decisions have cited decisions of the Supreme Court of Canada. (A Lexis search uncovered five.)   A comparable citation count for all U.S.-based law journals falls well under one hundred.  A daunting challenge to maintain, of scant utility to U.S. legal professionals, The Bluebook’s Table T2 might best be retired.

Advice Instead of a Table

How should a U.S. lawyer or judge cite a foreign primary source?  The aim of such a citation is, of course, to facilitate retrieval by the intended reader.  In the case of many jurisdictions that can be accomplished by adopting the citation format of the source jurisdiction with the addition of a country identifier, as necessary.  For an increasing number of nations that will enable retrieval from a public or other non-commercial site using Google or a Google alternative.  In 2019 the Supreme Court of the United Kingdom was called upon to adjudicate the legality of the Prime Minister’s attempt to have the Queen prorogue Parliament.  An Internet search using the citation “R. v. The Prime Minister, [2019] UKSC 41” will take one directly to the official version of the court’s decision in that case.

The Bluebook’s Treatment of Court Rules

Thursday, October 1st, 2020

From its first appearance in 2000, the ALWD manual (now “guide”) has furnished both a format for and examples of citations to state court rules.  Through successive editions, such little coverage as The Bluebook has given citation of court rules, however, has focused on the rules governing proceedings in federal courts.  Up through the twentieth edition, published five years ago, there was, at least, a nod toward the existence of state rules in the form of one example “Del. Ct. C.P.R. 8(f).”  Over time, that illustration became a curious, even an embarrassing, one, since for over a decade it bore no obvious connection to an existing Delaware court rule.  Nonetheless, “Del. Ct. C.P.R.” sat, undisturbed, between “1st Cir. R. 6(a)” and “Fed. R. Evid. 410” through multiple Bluebook editions since at least the fourteenth (1986).  (How much cite checking of examples goes into the updating of The Bluebook?)  The twenty-first edition, published this year, could have fixed the Delaware example.  (Citations to “Del. Super. Ct. C.P.R.” and “Del. Fam. Ct. C.P.R.” appear in contemporary decisions of that state’s courts.)  It could have replaced the Delaware example with one from a state like Texas where the court rules and their citation map closely onto the federal model (e.g., “Tex. R. Civ. P.”).  Instead, it provides no state example.  The only guidance offered in its pages, white or blue, is the advice, preceding the Rule 12.9.3 list of examples, to “[u]se abbreviations such as the following or abbreviations suggested by the rules themselves.”

The Bluebook’s Table 1, a catalog of “abbreviations and citation conventions” for the primary legal materials of all fifty states, fails to cure the omission.  State court rules are not among its categories.

If The Bluebook didn’t purport to provide “guidance for the everyday citation needs of … summer associates, law clerks, practicing lawyers, and other legal professionals” (to quote from its introduction) this lacuna might be excusable.  Little academic writing in the four law journals responsible for The Bluebook’s production concerns state law, let alone the rules of state courts.  Federal rules of judicial procedure and evidence do receive some discussion and therefore citation in their pages, but almost never a civil procedure rule of, say, Missouri or Texas.  As The Bluebook acknowledges in the preface to Table 1, “[t]he abbreviations and citation conventions … [it contains] are primarily intended to serve a national audience.” 

State style manuals (California, New York) do address the citation of their own state’s court rules.  For them it is an inescapable topic.  Citations to a state’s rules governing civil or criminal trial proceedings, evidence, and appeals are critical elements of in-state memorandum, brief, order, and opinion writing.  The Bluebook devotes five times the space to “Model Codes, Principles, Restatements, Standards, Sentencing Guidelines, and Uniform Acts” that it does “Rules of Evidence and Procedure.”  The ratio reasonably reflects the importance of the respective sources to elite law journals.  By contrast, in court opinions and briefs there are, perhaps, a hundred court rule citations to one of a restatement.

The difficult truth is that there is no nationally observed template for state court rule citations.  Rarely are they cited outside the jurisdiction to which they apply.  An Ohio court rule citation must be intelligible to an Ohio attorney or judge.  It need not be written with a Kentucky lawyer or judge in mind (and vice versa).  An Ohio judge will understand that a citation to “Crim.R. 32(C)” invokes Rule 32(C) of the Ohio Rules of Criminal Procedure.  “CR 23.01” directs a Kentucky judge or lawyer straight to Rule 23.01 of that state’s rules of civil procedure.  In both instances the jurisdiction is implied, not named.  More commonly state rule citations do include an abbreviation of the state name.  States adhering to this practice include California (e.g., “Cal. Rules of Court, rule 4.421(a)(1)”), Illinois (e.g., “Ill. Sup. Ct. R. 341”), New York (e.g., “22 NYCRR § 806.13”), and Texas (e.g., “TEX. R. CIV. P. 322”).  As those examples illustrate, even among jurisdictions where rule citations include explicit reference to the state, formats vary.  Some conform to the pattern employed for federal rule citations and adapted by the ALWD guide to state rules.  Some do not.

What advice should a citation reference provide about this important category of primary legal material, advice that will assist “summer associates, law clerks, practicing lawyers, and other legal professionals” with their “everyday citation needs?” 

  • First, when citing a rule governing federal court proceedings, a citation in the standard format exemplified by “Fed. R. Crim. P. 16” should be appropriate across the country.
  • Second, when citing a rule governing state court proceedings within that state the best guide to acceptable format will be recent decisions of that state’s highest court.
  • Third, the online research systems’ copy-with-citation functions are of no help on this point.  None of them picks up on local norms for citing court rules.