So there I was on Sunday evening, October 7. A glass of scotch in hand, all ready to fill out the official Bluebook questionnaire, which would allow me to suggest improvements for the forthcoming 21st edition.
A dramatic reenactment of my preparation for the survey
But then I clicked on the link. Apparently, despite previous reassurances that the survey would be open until October 8, I was too late. The survey was already expired.
I was not pleased.
Now, as of this writing, it seems like the survey is back online. The Bluebook is a fickle friend.
But before I knew that I’d get to formally submit my recommendations, I thought I’d have to make my case directly to you, the people. And I’m not about to delete this post just because the survey started working again. So here they are, without further delay: my six suggestions for improving The Bluebook!
Suggestion #1: Rule B12.1.1 — Don’t Require a Year of Publication for U.S. Code Citations of Statutes Currently in Force
This suggestion, like most of my suggestions, focuses on The Bluebook‘s Bluepages–a “how-to guide for basic legal citation” designed for “the everyday citation needs of first-year law students, summer associates, law clerks, practicing lawyers, and other legal professionals.” The Bluebook: A Uniform System of Citation 1 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). As I’ve argued previously, many complaints about The Bluebook focus on the lengthy Whitepages, which are designed for law review editors. If you’re not a law review editor, then you can ignore the Whitepages. There, you just resolved your complaint.
But if the Bluepages are supposed to be useful for practitioners and first-year law students, then the Bluepages’ rules should reflect the values and practices of those lawyers (and lawyers in training). When a statute is currently in force, practitioners and first-year students just don’t care about the year on the spine of the bound U.S.C. volume that contains that particular code provision. The year parenthetical doesn’t make the statute any easier to find. And it doesn’t tell the reader anything about the persuasiveness or authoritativeness of the cited provision.
Compare that to the date parenthetical in a case citation. Sure, in most instances you won’t need the date parenthetical to locate the decision itself. The reporter information does the job. (Though if you don’t have Westlaw or Lexis and you need to use PACER to locate an unreported federal district court opinion, that date helps you find the proper place in the docket.) But the date parenthetical is still helpful because it lets you know when the decision was issued. That might tell you a bit about the value of that case. Is it recent and therefore the most-current statement of law on a topic? Or is it a decision from the early 1900s? Perhaps some more-recent decisions have added a bit of nuance? Lawyers might actually be interested in the age of a case.
Lawyers might care about the age of a statute. But the date parenthetical for U.S.C. provisions doesn’t tell you anything about when the statutory provision was enacted! Rather, it tells you when the most-recent publication of the code itself was published. So if a provision that was passed in 1870 appears in the 2012 edition of the U.S. Code, it gets a (2012) date parenthetical. If a provision that was passed in 2010 appears in the 2012 edition of the U.S. Code, it gets a (2012) date parenthetical. Not helpful for practitioners!
Note that the date of publication is not the rule for case citations. When volume 573 of the United States Reports comes out in, let’s say, 2019, the date parenthetical for Supreme Court opinions in that volume will not be the date of publication–i.e., not (2019). Rather, the date citation will be the year the opinion was released by the court–perhaps (2013).
Note also that my suggestion here is just for citations to the U.S. Code for laws currently in force. Practitioners should still indicate when citing to historical versions of a law. And we should still include years when referring to session laws, since a citation to the session law includes the year the law was passed. That’s useful!
Suggestion #2: Rule B10.1.1 — For Practitioners, Using Table T6 and T10 Abbreviations for Case Names Should Be Recommended
Law review editors likely benefit from a long list of mandatory abbreviations for case names. They publish so many pieces, with so many footnotes, and they work with so many rotating staffers, that a long list of mandatory abbreviations likely helps maintain consistency below the line. And it helps resolve annoying abbreviation-related questions or disputes before they happen. As I’ve argued before: The law review process is different, so different rules are helpful!
But lawyers and first-year law students are not law review editors. If they are going to be required to follow the Bluepages, their citation shouldn’t be considered “wrong” just because they abbreviated Environmental as Environ. or Envmt’l instead of the “right” answer: Envtl.
Who cares?! The Bluepages could include a general rule that any abbreviations in case names should be “unambiguous in context,” which is the current rule for abbreviating additional words not already listed in Table T6. Practitioners should want to shorten case names, since those long words take up space in their briefs. And if they want some help coming up with good abbreviations, then Table T6 and T10 are right there to help them.
But if for whatever reason a practitioner neglects to use the Bluebook-approved version of an abbreviation, that citation shouldn’t be considered wrong.
Suggestion #3: Spin Off Rule 20, Rule 21, Table T2, and Table T3 into a Separate International Supplement
One of the most-common complaints about The Bluebook is that it’s too long. Everyone complains: It’s so bloated! Legal citation should be simple! Back in my day the book was so much smaller! Did you know it started as a small pamphlet? Now look at it! I’m whiny!
There’s something to those complaints. Take a side-by-side look at the 14th and 15th editions (on the left), next to the 19th and 20th editions (on the right). Yikes!
The Twins were winning World Series championships back when the 14th and 15th editions were current.
One reason the newer editions are so long: A lot of information on international sources. That’s good and useful stuff! But it’s probably not regularly useful for most first-year law students or run-of-the-mill lawyers.
And that international information takes up a lot of pages: Rule 20 (Foreign Materials), Rule 21 (International Materials), Table T2 (Foreign Jurisdictions), and Table T3 (Intergovernmental Organizations) take up 226 pages. Yikes again.
To be clear, I’m not saying that those 226 pages aren’t useful! They are extremely useful! For example, people generally don’t need The Bluebook for citations to federal district court cases or state statutes, which lawyers can do without the need to look anything up. But a citation to a foreign or international source? That may well stop a lawyer dead in his tracks. It’s one of the situations were a lawyer who otherwise never uses The Bluebook would be thankful to have one around.
But as a day-to-day reference, those pages might not be worth the extra bulk. I therefore suggest spinning those pages off into a separate International Supplement. Law firms could buy a few for their libraries. International-focused law journals could buy a bunch of them. But the rest of us practitioners wouldn’t need our own individual copy.
Suggestion #4: Resolve the Controversial Question of Case Citations in Textual Sentences
Okay. Now we’re going to get really controversial. Here’s an example of proper citation format from Rule B10.1.1(vi). It’s an example to illustrate proper case abbreviations, but that’s now why I’m highlighting it.
In Penn Central Transportation Co. v. City of New York, 366 N.E.2d 1271 (N.Y. 1977), the court applied a version of the diminution in value rule.
Here’s an example from Rule B10.2(iv), which is supposed to show the proper use of id. (I’m going to remove the parallel citations. Deal with it.)
The Pennsylvania Supreme Court grappled with a similarly complicated issue in an election dispute in 1967. See Chalfin v. Specter, 426 Pa. 464, 477 (1967). In Chaflin, the court was forced to reach a decision under a severely rushed schedule. See id. at 468.
And here are two more examples from the Whitepages Rule 2.2(b)(i), which deals with italicization of a case name when it “is grammatically part of the sentence in which it appears.”
In Loving v. Virginia, the Court invalidated Virginia’s antimiscegenation statute. In Loving v. Virginia, 388 U.S. 1 (1967), the Court invalidated Virginia’s antimiscegenation statute.
And just for fun, here’s a since-removed example from the 19th edition. This one used to be in Bluepages Rule B2.
The ITC’s findings of fact should not be overturned because they are supported by substantial evidence, defined by Corning Glass Works as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Corning Glass Works v. U.S. Int’l TradeComm’n, 799 F.2d 1559, 1566 (Fed. Cir. 1986) . . . .
At this point, you can probably see the issue. Where do you put the citation information when you want to mention a case name in a sentence!?
Part of the problem here is that The Bluebook’s examples are…. not good. For one thing, all of these examples come from rules about other aspects of citation format. So to the extent you try to divine an answer from an example, it’s a bit of a stretch.
Second, many of the examples seem to violate other Bluebook rules. For instance, in the Penn Central example, where is the pin cite? Same for the Loving v. Virginia example. Maybe a citation to the entire case without a pin cite would be appropriate for those citations. (I doubt it!) But the examples don’t give you any help if you need to include a pin cite. I mean, would it be an “id.” citation at the end of the sentence? Surely not!
And what about that Corning Glass Works example? I probably wouldn’t use the short form of a case in a sentence unless I’d previously introduced the case, so the reader would know what case I was referencing. Here, however, the example provides the full citation, meaning that the reference isn’t clear, the citation hasn’t already been included in the same discussion, etc. So then why use the short form in the sentence but not the citation?
I think “A” is the correct answer, though The Bluebook isn’t much help. The Chaflin example provides some support, since the “id.” comes at the end of the sentence, as opposed to immediately following the case name in the sentence. But I don’t think anyone would put an “id.” immediately after Chaflin there. Though people might do something like option “B” above.
Anyway, all of that is to just to make two points: (1) Hey Bluebook! Provide an answer to the question! This comes up all the time for practitioners who write a lot of briefs with in-line citations. And, separately, (2) the answer should be example “A” above. Why? Well, putting aside The Bluebook examples, I’m thinking along the lines of Professor Alexa Chew’s article on citation literacy. When a citation comes at the end of a sentence, the case name is just a part of the citation. Our eyes should sort of scan over it and absorb the name only insofar as it is part of the interstitial message of authority.
But when a case name is part of the textual sentence, it serves a different purpose. The reader should actually read it, like normal text! But where does the citation go? In my Chadd example above, and in The Bluebook‘s Chalfin example, the citation doesn’t just support the case name or the mere existence of the case as a case. Rather, the citation supports the entire claim–the case name and the substantive information that follows. The citation should therefore come at the end of that full claim.
In my view, the reason the 19th edition’s Corning Glass Works example is wrong is because it split the difference between short form and long form. If the short form was appropriate for the case name in the sentence, then it should have just done this:
The ITC’s findings of fact should not be overturned because they are supported by substantial evidence, defined by Corning Glass Works as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” 799 F.2d at 1566 . . . .
And if the short form were not appropriate, then the author should have treated the case as if he were introducing it for the first time. Maybe something like this:
The ITC’s findings of fact should not be overturned because they are supported by substantial evidence, defined by the Federal Circuit in Corning Glass Works v. U.S. International Trade Commission as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” 799 F.2d 1559, 1566 (Fed. Cir. 1986) . . . .
I don’t like that structure, and I’d probably rewrite the sentence to avoid it. But I think it technically works.
Anyway, this is all annoying and should just be resolved by a new Bluepages rule. I’m done with it!
Suggestion #5: Rule 10.1.1(ii) — Change the Examples Back!
Okay. Now I’m going to be petty for a second. In the 19th edition, Rule B4.1.1 used the following example to show that only surnames should be used when forming a case name:
Spiller v. Ware
Not: Martin D. Spiller v. Elliot A. Ware and Randle S. Scott
In the 20th edition, the newly renumbered Rule B10.1.1(ii) used the following example instead:
Darwin v. Dawkins
Not: Charles Robert Darwin v. Clinton Richard Dawkins and Edward Osborne “E.O.” Wilson
Here’s the thing: Spiller, Ware, and Scott are references to the three people who created the modern version of the Bluepages in the 18th edition. The example in 19th edition was a nice little shout out to those three people. The Bluepages are the best part of The Bluebook! So I think the folks who came up with the idea deserve a small and subtle tribute.
And it’s not like Spiller v. Ware was replaced with a real case or a more helpful example. I mean, we get it, you took an intro to evolutionary biology course as a sophomore. No need to show off. Put Spiller v. Ware back.
Suggestion #6: Merch!
People complain about the cost of The Bluebook. And if the editors spin off the international sections, maybe they could reduce the price a bit. Also, The Bluebook has a free competitor these days–an option I allow my students to choose instead of The Bluebook in my first-year class. So how to reduce the price of the book while still collecting enough money to fund those journal parties?
Merchandising! Merchandising! Where the real money from the citation guide is made. Bluebook t-shirts! Bluebook lunch boxes! Bluebook flame-throwers!
Okay, maybe not. But The Chicago Manual of Style does it!
One idea from Fastcase’s Ed Walters: Maybe they could make beanies? You know: Small Caps? I love it!
Bonus Suggestion for Courts: Stick to the Bluepages
Most of my suggestions here are based on the idea that practitioners and law students (unless they are editing a law journal) should just use the Bluepages. That is, after all, what the Bluepages are for. Some folks might, however, insist on strict adherence to the Whitepages, in part because some courts’ local rules require that citations follow The Bluebook, without specifying the Bluepages or the Whitepages.
I think any such insistence on following the Whitepages is misplaced. Courts are generally just fine with Bluepages compliance. After all, requiring compliance with a particular set of rules should include those rules’ own guidance regarding which rules apply to practitioners and which ones apply to student editors. Is a lawyer really violating The Bluebook by not following a rule that The Bluebook itself says doesn’t apply to practicing lawyers?
But anyway, courts could help matters by clarifying that when they say they want Bluebook citations, they really mean Bluepages citations. And such clarifying language would help lawyers argue against their colleagues who insist on Whitepages compliance because “the court says so.” Ugh.
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That’s all I’ve got. So Bluebook editors, if you’re listening: Best of luck with the revisions!