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

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.

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