Tuesday, November 29, 2011

Marching in Lockstep

Ralph Waldo Emerson would have hated the Bluebook.  That's the quasi-official citation manual of the law schools and (to a lesser extent) the legal profession.
It's a collective effort of the major law reviews from Penn, Harvard, Yale, and Columbia. Now in it's 19th Edition, it's grown (overgrown is more like it) to 511 pages of maddeningly worthless trivia. Students at most law schools are required to master its intricacies. (When do you use italics in a footnote as opposed to large and small caps?) To what end, exactly, is something of an open question. The Bluebook's goal is absolute uniformity. Everyone everywhere is to do things exactly the same way all the time so that . . . . So that it will be exactly the same all the time.
As if that were an end in itself.
Which of course the Bluebook implies it to be.
Sure. If you have the basic idea of Bluebook citation down, you'll have a handle on a fairly typical citation system that's used in many courts and by many lawyers and law firms.  But certainly not all.
For one thing, there are competing guides even in the law schools.  In the 1980s, the University of Chicago Law Review put out its own citation manual, informally known as the Maroonbook.  Far slimmer than the then-255-page Bluebook, the Maroonbook's 30 pages were built on the idea that a citation ought to provide the reader with accurate and clear information about a source so that its provenance could be judged and it could readily be tracked down if needed and that citations should not be distractingly inconsistent.  As the editors put it in the current (20th Anniversary) edition:
Users should be guided by the following four principles, listed in order of importance:
(1) Sufficiency: The citation should give the reader enough information to locate the cited material without further assistance.
(2) Clarity: The citation should be comprehensible to the reader, using plain English and following a well-recognized form whenever possible, and avoiding the use of confusing words
(3) Consistency: Citations should be consistent within a piece, though they need not be uniform across all legal materials.
(4) Simplicity: Citations should contain only as much information as is necessary to meet the goals of sufficiency, clarity, and consistency.
Still, the Maroonbook has grown from its original 30 pages to 85 because . . . . Damned if I know.
Now, the truth is that the Maroonbook never really managed to break the hegemony of the Bluebook. Nor has the fact that lots of courts don't rely on either but have their own systems.
Ohio, for instance, has long gone its own way.  Here's but one easy example.  The Bluebook mandates and the Maroonbook instructs that a typical case citation ends with the year of decision. For 150 or more years now, Ohio has put the year in the middle of the citation, after the case name but before information about where to find it. It's a minority approach, though not unique to the Buckeye State.
Really, it's been no big deal.  Sure it's different from Bluebook (and Maroonbook) style in many ways, but it's not particularly tough to keep the basic differences in mind and use the more generic (and would-be hegemonic) systems for federal court and the state-specific approach for state court.  Hell, neither is actually required, so if a detail here or there doesn't match, it doesn't matter. And we are, after all, a union of 50 states each with a legal system (or more than one) of its own.  Why must they all have an identical citation system.  Some coherence is surely an advantage, but nobody's talking about going from some variant on what's developed over the last 900 or so years of Anglo-American jurisprudence to some sort of obscure computer coding design.  It's just that why do we need hegemony?  
Leading the charge against that sort of mindless insistence on standardization is the seriously prolific federal appellate court judge Richard Posner.  He's been railing against the Bluebook for years.  In January he took off on the 19th edition for the Yale Law Journal.
A system of citation forms has basically two functions: to provide enough information about a reference to give the reader a general idea of its significance and whether it’s worth looking up, and to enable the reader to find the reference if he decides that he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such a system: “to spare the writer or editor from having to think about citation form,” “to economize on space and the reader’s time,” “to provide information to the reader,” and “to minimize distraction.” There is some tension among them but not a great deal, and they are easily implemented and are disserved by a 511-page tome. Most citations in a law review article, treatise, brief, or judicial opinion are to cases, statutes, treatises, and law review articles, and the format for these citations is familiar to every law student after a month or so of law school. There are esoteric sources, such as administrative decisions and regulations, but the agencies caption their various promulgations in a way that makes it obvious how to cite them analogously to judicial decisions and to statutes.
. . .
Efforts to impose uniformity beyond the basic conventions encounter rapidly diminishing returns well illustrated by The Bluebook’s obsession with abbreviations. An example that I have picked literally at random is “C.Ag.” What does “C.Ag.” stand for? Why, of course, the Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do they abbreviate Código de Águas “C.Ag”?). The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as The Bluebook does routinely. Consider “Temp. Envtl. L. & Tech. J.,” “ILSA J. Int’l & Comp. L.,” “Emp. Rts. & Emp. Pol’y J.,” and “AIPLA Q.J.” These are names of journals. Now try figuring out “B.T.A.M. (P-H),” “A. Ct. Crim. App.,” “A.F. Ct. Crim. App.,” “C.G. Ct. Crim. App.,” “N-M Ct. Crim. App.,” “Ne. Reg’l Parole Comm’n,” and “Cent. Ill. Pub. Serv. Co.”
What is the point? It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”
(Footnote omitted.)
Posner's not always right (not by a longshot), but he is this time.  His own citation guide for his law clerks (included in the Yale Law Journal [that's Yale L.J., or at least it was back in the 13th edition which is what I got when I was in law school and have very rarely consulted, and never updated, since] is, he says "still only 885 words, which is roughly two printed pages."
So it was with heavy heart that I discovered this morning that the Supreme Court of Ohio (giving the full title to emphasize the pomposity and grandiosity of the damn thing) has issued a 168 page manual to take effect on January 1.
Writing Manual: A Guide to Citations, Style, and Judicial Opinion Writing
It's apparently binding only on the Supreme Court itself, which is something of a relief, but 
Although judges and lawyers are not required to conform to the Writing Guide, they are strongly encouraged to use it in writing opinions and briefs.
. . .
Persons preparing documents for filing in the Supreme Court should follow the Manual
of Citations. Conformance to another generally recognized citation manual is acceptable.
Nothing subtle about those hints.
Anyone used to Ohio citation form who glances into the Writing Manual will see that we're moving to something much more like the Bluebook.  One colleague tells me the new style is a major improvement.  Another says that it's an abomination.  My own view is that it's a misguided and ultimately unnecessary effort to emulate a standard form without actually adopting one, a frankly bizarre choice.  The result strikes me as a more cumbersome approach - but with no corresponding benefit.
The Style Guide sets forth standard guidelines for formal English writing. When more than one correct standard or practice exists, one alternative has been chosen.
The guide makes no attempt to be comprehensive. For rules of punctuation, grammar, diction, hyphenation, and usage that are not covered by this guide, the Reporter’s Office follows conventions of standard English.
It's tricky to be both prescriptive and descriptive at the same time, though they get points for the effort.
Finally, there's this.  
The Ohio Supreme Court entered into a contract with West some years ago for the printing of the Ohio Reports.  The new manual requires citations to many sorts of cases to include Westlaw citations. All those folks who use Lexis? Google Scholar?  Casemaker (provided by the State Bar)?  One of the other search tools?  West will happily take the new business.  I don't imagine the court will get kickbacks, but a "Sales Agent of the Year" plaque might be appropriate.
Oh, that Emerson thing I started with.  He wrote,
A foolish consistency is the hobgoblin of little minds.
The Bluebook has been the hobgoblin poster child for decades, the big hobgoblin on the block to switch from one bizarre metaphor to another.  Ohio?  This year's version is, as I said, 168 pages.  I'm betting on 250 for the next edition.  350 by the end of the decade.


  1. 1. This is why I like doing most of my work at the trial level. If the judge or the clerk can find it, you're good.

    2. The Ohio Supremes don't have anything more pressing?

  2. What could be more pressing than telling those of us in the trenches that we're supposed to use italics for signals (after telling us, a few years ago, to stop using them for signals)? No foolish consistency for them.

  3. I used to edit a law journal in Australia, where the Australian Guide to Legal Citation is the equivalent to the Bluebook. We used to be very smug that our guide was shorter, simpler and better than the Bluebook (particularly since it had no truck with those ridiculous abbreviations).

    The latest edition, however, added a good hundred pages or so, a bunch of incredibly obscure and esoteric rules, and actually altered other longstanding rules to make them stupider. By the time it reaches its 20th edition (it's only on its 3rd currently) I imagine it will, in the words of Douglas Adams, require a fleet of lorries to carry its microstored edition around in.

    There must be something about citation styles that makes eager law review types disappear up their own behinds. That's all I'm sayin'.

  4. It's not just law. All these sorts of guides routinely expand. My old copy of Turabian was under 150 pages. It's 436 pages now. My MLA Handbook was under 50 pages. It's now almost 300.

    Those old editions didn't say anything about citing electronic sources because there were none in those days, but an extra page or two could have covered those additions. The extras here are pure bloat.