Richard Posner Is My New Hero

By James Kwak

Yes, I have said some critical things about Posner in the past, usually about his penchant for abstract theoretical arguments that presume perfectly functioning markets. But I’m happy to say we can make common cause on an issue of much greater importance: the Bluebook.

The Bluebook is the 511-page “uniform system of citation” that is prescribed by — well, actually, by the editors of the main student law reviews at Columbia, Harvard, Penn, and Yale — and enforced by the student editors of law reviews (almost) everywhere. But  it is not enforced by the courts, whose citation systems vary from jurisdiction to jurisdiction and are not effectively enforced by anyone, anyway. Posner calls it “a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.”[1]

There are many charges one can level at the Bluebook, and Posner touches on some of them, but he only scratches the surface. (Which he acknowledges, having written an earlier critique of the Bluebook twenty-five years ago.[2]) Lawyers and law students will be familiar with everything below, and can surely add their own criticisms.

The first, and most obvious, is that it’s full of silliness. A few examples:

  • Books are cited in large and small capitals (which I can’t reproduce here, so I’ll just do all caps): SIMON JOHNSON & JAMES KWAK, 13 BANKERS: THE WALL STREET TAKEOVER AND THE NEXT FINANCIAL MELTDOWN 188 (2010). (That’s page 188, by the way, with no comma.) Journal articles, however, are cited with the author in plain text, the article title in italics and the journal title in large and small capitals: Edward A. Zelinsky, The Defined Contribution Paradigm, 114 YALE L.J. 451, 457 (2004). (That means the article begins on page 451, and the citation is to page 457, after the comma.) Administrative documents like SEC releases are done in ordinary type, but regular reports of those same agencies should be in large and small capitals. Huh? (In most citation systems, article titles are in quotes, both book and journal titles are in italics, and you never use large and small capitals.)
  • In abbreviations where each element is a single letter, you do not put spaces between the letters; but if one element has more than one letter, you do put spaces around it. So: S.D.N.Y. (Southern District of New York); but D. Mass. (District of Massachusetts) But, if one of the abbreviations “refers to the name of an institutional entity,” it gets padding to separate it from other elements, as in N.Y.U. L. REV. But but, if the element is the abbreviation of an ordinal number, don’t pad it, as in F.3d (third series of F., whatever that is).

I could go on and on, but I would just lose readers, and really this isn’t that important, except for the thousands of hours of lost productivity the rules create.

More importantly, the Bluebook reinforces class distinctions. By making legal citations impossible for lay people to read, it serves the same function as the Vulgate Bible did. The most obvious example, which Posner ridicules, is the practice of abbreviating source titles to the point of indecipherability. Here’s Posner:

“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”?).”[3]

Posner continues:

“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.'”[4]

When I make this point, I say that the core principle of the Bluebook seems to date from a time when carbon paper was expensive, or perhaps when type was set by hand. The real cost today, when marginal bits are free, is that another academic, say a sociologist, might not be able to even figure out what journal to go to to follow a citation, defeating the most important function of citations.

Posner lays into the abbreviations, but he supports the most general secret code in the Bluebook: putting the volume number before the title. So, in “372 U.S. 335, 344 (1963),” that’s Volume 372 of the U.S. Reports (Supreme Court cases); 335 is the page the opinion starts on; and 344 is the page that is cited. Well, you might say, that’s just for cases and law reviews; it’s been done with cases for so long that it probably can’t be changed. But what is this? 3 THE LETTERS OF VIRGINIA WOOLF, 1923-1928, at 224. That’s page 224 of the third volume of Virginia Woolf’s collected letters, which covers the years 1923 to 1928, of course.

In sum, vast swathes of the Bluebook serve the purpose of shutting out lay readers — even those just one wing over in the ivory tower — which undermines a major purpose of citations.

Besides formatting citations in gibberish, the Bluebook makes readers’ lives harder in another way: by fetishizing the printed page. The general rule is that if something was published in print and on the Internet, you should cite to the printed version. So if an article appeared in the The Scranton Times Tribune and on its website, thetimes-tribune.com, you are not allowed to just cite the web version with a URL. Instead, some poor law review editor has to track down a physical copy of the newspaper, or a microfiche, find the page number, and put that page number in the citation. (I know one of those editors; otherwise I would never have known about this rule.) Now, which is better for the reader: the page number or the URL? You decide.

Well, one defense of the Bluebook is that it is comprehensive and uniform: it tells you exactly how to cite everything. But it doesn’t even do that well. For example, if a periodical has consecutive pagination within each volume (that is, the first page number of issue n+1 is one greater than the last page number of issue n, except that you start over at 1 once a year), you do it this way: 120 YALE L.J. 850 (2011), with no reference to the issue within the volume (Rule 16.3)[5]. If it doesn’t have consecutive pagination, you do it this way: FEDERAL RESERVE BULLETIN, February 2009, at A16-17 (Rule 16.4). But the Bluebook doesn’t say what to do if the periodical has issue numbers but no dates within a year, like this.[6]

Or how about this. On page 188 of 13 Bankers, we cited a statement that Michael Lewis made in a lecture to the Hudson Union Society, which I transcribed from a FORA.tv video, which was embedded in a Huffington Post news story. How do you cite that?

So what is the justification of this nonsense? Standardization, supposedly. Precision. One person at Yale said I was all wrong because I didn’t realize that legal scholarship required a higher degree of precision than other disciplines, pointing out that legal citations are generally to specific pages. Well, I wrote a dissertation back in the 1990s that had 834 footnotes, the vast majority to specific pages, which I indicated with a nice, helpful letter “p”.

Furthermore, if standardization is so important, why doesn’t the the legal system as a whole collapse? Different jurisdictions use different rules. Some differences are silly. For example, in the Bluebook you have to underline the period at the end of “Id.“; in Massachusetts courts you have to not underline it (“Id.”). Even more crazy, however, in law review format, the Bluebook says you have to italicize the period at the end of “Id.” Here it is without italics: “Id.” Me neither. (I do have a friend who can see the difference, at least in Microsoft Word; another friend suggests looking at documents in New Baskerville, where periods are square.)

Some differences are more significant. For example, in the Bluebook you are supposed to use national reporters for state cases, so Kerrigan v. Commissioner of Public Health would be 957 A.2d 407 (that’s volume 957 of the second series of Atlantic reports, page 407). But in all the states I’ve done work in you are supposed to cite to state reporters, so the same case would be 289 Conn. 135. Yet, despite this chaos, the world doesn’t end. (And, as Posner points out, the federal courts have no uniform system of citation, the Seventh Circuit, on which he sits, has no citation system,[7] and he created his own two-page system for his clerks to use.[8])

But more importantly, somewhere the baby got tossed with the bathwater. The most important purpose of citations is to tell readers what your sources are and allow them to go and look at your sources if they like. In law, I am confident that we spend more time on our citations than anyone else, yet our citations are harder to follow than anyone else’s. We are sinking untold hours into citation formatting that, taken as a whole, is worse than useless — it destroys value by reducing the informational content of the footnotes.

Posner concludes with an argument that the Bluebook exists because lawyers want to demonstrate that they have rigorous methods; but because their core method, legal reasoning, “is uncomfortably close to careful reading, to rhetoric, and to common sense,” the profession has instead sought rigor in citation formatting.[9]

Here I think Posner is being too elegant. I think the answer is simpler. Lawyers are a cult, citations are our rites, and the Bluebook is, not our Bible, but our prayer manual. It is a tradition in the true sense of that word: something we do because we have done it for as long as we can remember, and not for any other reason (even though people come up with justifications for it all the time). And traditions perpetuate themselves. I use the Bluebook format (as well as I can, that is) when I want to communicate with other people in the cult because, once the rites exist, it’s individually rational for me to follow them. It’s individually rational for law reviews to follow them as well. And so the system perpetuates itself year after year.

[1] Richard A. Posner, The Bluebook Blues, 120 YALE L.J. 850, 851 (2011). This is a Bluebook citation, and a relatively simple one, except that I can’t do “Yale” in large and small capitals as required. What does it mean? Even if you can figure out that “YALE L.J.” means “Yale Law Journal,” what do you think 120, 850, and 851 mean? Since this is a blog, though, I will kindly provide you a hyperlink to the article.

[2] Richard A. Posner, Goodbye to the Bluebook, 53 U. CHI. L. REV. 1343 (1986).

[3] Posner, supra note 1, at 853.

[4] Id. Can you see that the period after “Id” is italicized? Well, it is, because the Bluebook says it must be so.

[5] I only have the Eighteenth Edition, so it may be in a different place in the Nineteenth Edition.

[6] I expect some law review editor out there will say that there is a rule in there, somewhere, for this situation. But I’m not the slowest person in law school out there, and I pored over the rules for a while before giving up, and as we say in software, at some point it’s the system’s fault, not the user’s.

[7] Posner, supra note 1, at 859 (“My court does not have a citation form book, and the publishers of judicial opinions do not impose a citation style on our opinions. That means that the court reports published by West do not have a uniform citation style—and no one notices or objects.”).

[8] Id. at 858. Although I think Posner is being too cute by referring to his two-page guide, because it is really just a list of changes from the Bluebook standard: either his own personal rules or issues where he is more flexible.

[9] Id. at 860-61.

55 responses to “Richard Posner Is My New Hero

  1. Herbert Wetherby

    This is a primary example of why some judges should be school bused to work, just as some ceo’s are shofered to their place of employment. Might clear up a bunch of bad laws and behaivors by their constitutents if its not to late.

  2. Anyone familiar with legal scholarship knows that citations are made to reinforce preposterous conclusions based upon cretinous arguments from idiotic assumptions intended to justify ever escalating restrictions on personal liberty and statist criminality aggrandizing corporate fiefdoms.

  3. I think the start of the ridiculous abbreviations was historically to save space on the printed page. Before typewriters, hard drives, and word processors, conserving letters had a knock on efficiency for text reproduction. This is no longer the case – data storage is cheap so the arcane rules for maximal concision should be reconsidered.

    In the example you gave of a URL, it is absolutely the case that the original text should be cited. URLs change, the World Wide Web is about 22 years old and it is ridiculous to put a URL down if any more foundational reference can be made. Persistent URLs are something information sciences has been pushing for, but the Scranton Times cannot be expected to set up a data archive and never change it’s website architecture.

  4. Ian M.: This might surprise you, but the Scranton Times don’t have to worry about archiving the articles they published on the web; the Internet Archive does it for them anyway. The Internet Archive is a nonprofit and member of the ALA, it crawls websites to counteract bitrot. See the Times in its historic glory at http://web.archive.org/web/*/www.thetimes-tribune.com/

  5. Posner is off target. The Blue Book’s citation system is still generally followed by practitioners and courts for cases, statutes, codes, and ordinances. Thus, all of us can find the citation and read the material cited. It is the purpose of the system.

    True the system is more complex than the Dewey decimal system but each system can be taught and used. If you go to your local law library and need to find a legal reference you will be generally looking for the volume number on the back of the book, the page and or the number of the statute, code, ordinance in that volume. It is how the library is organized. It is also the method of Shepard’s citations.

    I read cases from around the nation and have no difficulty looking up the citations. If fact, most citations can be Googled and found.

    This seems like an interesting topic for law students, but lawyers and judges need a uniform system. As far as I can tell the current system works well.

  6. All citations should be to URLs. Journals should demand a digitized archive of cited work, in case of linkrot, and make it available online. The end.

    The bluebook persists to make money for ivy league law reviews (I heard it funded a ski trip in one case.)

  7. The key issue here is access and power.

    The historian Juan Cole made a similar point to Kwak’s at a recent conference of historians in Boston. Academia needs to catch up to the dominant internet ethos of openness. Why — WHY! — would scholars want to _deter_ readers? Citation schemes are all over the place. But more importantly, journals are ridiculously hard to access — even for students _in_ universities. Many publicly-funded resources can only be accessed through obscenely overpriced, private channels.

    The upshot is to reinforce the monastic and elitist culture of academia. This makes sense on two counts — the centuries-old lust to preserve power relations and a more modern, tacit realization by many academics that the vast body of their work is utterly irrelevant of no import to any person whatsoever. In other words, most academics are doing work of _less_ importance than that done by the guy pushing a brush on the sidewalk. But academics must preserve their delusions — that they are innately superior, smarter, more competent, whatever — when in fact the staggering majority are just luckier.

    Sadly, academia has a wealthy and powerful league of supporters of insularity in the US government (and Obama’s lust for secrecy) and big business, which knows full well that the best way to maintain inflated prices is to artificially suppress demand.

  8. Bravo, Frank. Couldn’t agree more.

  9. Have to agree. Another way to put it: Academics need to avoid the cognitive dissonance that would result from an admission that most of their work is a rehash of another’s prior effort. And, lest the general public realize that the “experts” are even _less_ informed than they are, the language must be opaque.

    The Catholic Church faced a similar problem when young upstarts (soon branded heretics) advocated a Bible in the language of the commoners.

  10. To add a further note: James Kwak is certainly right that the origins of the practice were practical. And the New York Times developed its Times typeface to economize on space. The whole realm of italicized typefaces were likewise developed to mimic calligraphic handwriting and to save on paper — 500 years ago. But efficiency becomes habit and then necessity and then The Only Way because GOD said so!

  11. I think it is worth having a conversation about specific rules in the Bluebook. (For example, as previous commenters note, there are tradeoffs between the ease of URL citation and the risk of old URLs being meaningless in 20 years.) But you overstate the problems of the current system.

    (1) Why is putting the volume before the title more “secret code” than putting it after? Every field has citation conventions one must learn; for example, a scientific article might be cited “O. Hayden et al., Nat. Mater. 5, 352 (2006).” Scientists would know that “Nat. Mater.” is “Nature Materials”; others might need to ask someone (or Google). (Google also works for Bluebook abbreviations, such as your “Temp. Envtl. L. & Tech. J.”) And is having that “5” after “Nat. Mater.” really clearer than having it before? The “shutting out lay readers” argument doesn’t make sense.

    (2) You say “marginal bits are free,” but most journals using the Bluebook are still printing on paper and have to worry about overall page count (and the associated cost). Abbreviated citations take up significantly less space and, for those familiar with them, are also faster to read.

    (3) “But the Bluebook doesn’t say what to do if the periodical has issue numbers but no dates within a year…” I read your note [6], but I still wanted to point out that right at the bottom of the (very short) rule 16.5 (on “Nonconsecutively Paginated Journals and Magazines”) it says exactly what to do in this situation (use the issue number), and it gives an example. This was added in the 19th edition, which is why you didn’t find it.

    (4) “We are sinking untold hours into citation formatting…” Most of the hours that go into editing a law review article are spent not on italicizing commas, but on checking the content of sources. Is the cited article’s title wrong? Is the article cited for something it doesn’t say? Has the cited case been reversed? This is the real value-added of law review editing. In most fields, this cite-checking is the author’s burden, and we could have a discussion about whether it makes sense in law, but this has nothing to do with the Bluebook.

  12. (1) I’m not defending scientific citation systems; insofar as they shut out lay readers, they’re just as bad. And I recommend putting “Vol. X” after the title. Anyone in any academic field would understand that.

    (2) Um . . . who reads law reviews on paper? I have never read a paper version of a law review. I use Westlaw, HeinOnline, or JSTOR for the economics ones.

    (3) Surely there were periodicals like this before 2010. And it took the Bluebook 19 editions to figure that out?

    (4) is a different and more important point. Even if law reviews spend more time checking citation substance, that doesn’t justify the time spent checking format. And we’re not just talking about law reviews here; we’re talking about time wasted by the entire profession.

  13. Do lawyers get marked down when they write a legal review that does not follow the prescribed uniform citation?

    We did get a good start here over what the fathers (and yes they were all men) of the American Declaration of Independence may have meant by our* inalienable and sovereign right to pursue happiness.

    Surely, a subject worthy of a legal review. So what does “inalienable right to pursue happiness” mean in contemporary society?

    Sigh, sometimes I am too serious.

    (* I have used the possessive pronoun “our” based on an assumption that since the right is deemed “inalienable” it’s OK for Canadians to be included in the formulation)

  14. When you have centuries of law to cite, it’s important to have good citation procedures. Now, some of these procedures undoubtedly started as print-shop practices, perhaps in some major university (Harvard? Yale?) Others are just conventions that grew up over time. But it’s hard to know which ones are just outdated, and which turn out to be important after all. A whole generation of architects discovered this the hard way: all that ornament that modernists disposed of in their first generation turned out to contain devices for controlling weathering and internal climate, or devices that affected the user experience of buildings. The profession is now laboriously relearning those old lessons, having suffered severe harm to its reputation.

    Since the Bluebook system has been used for a very long time, and legal citations often remain relevant for a very long time, one still has to be able to read the system to get the best use out of older documents. Paper, so far, lasts longer than any internet or microform archive. The paper edition is therefore regarded as primary.

    The whole issue of archiving electronic data for the centuries is one that has yet to be addressed, so far as I know. URLs, especially, are evanescent, depending on a particular institution maintaining a web presence. The early academic designers of the web knew this, and also devised the URN (uniform resource name) system to provide a framework for long-term citations, but it is not much used as yet. Still, as the decades and centuries wear on, it is likely to become more important, provided the paper citation does not continue to dominate.

    Why, yes, ravens like libraries.

  15. (1) I just have trouble believing that there is anyone who (a) wants to find a source cited in a law review and (b) can’t because they can’t figure out which number refers to the volume. If you can tell me one such person to talk with, maybe I’ll feel differently. But to me, all those “Vol.”s seem like wasted characters to have to parse. (And do you also suggest writing out “first p.” and “specifically p.” or something to designate first pages and pincites?)

    (2) Relatively few people read law reviews on paper, but until journals switch to being entirely online (which will probably happen within 10-15 years, but isn’t happening today), this is a concern. (The people who rank law reviews based on cites-per-page are also driving this.) And you don’t address the faster-to-read point; I bet most lawyers can more quickly parse “982 F.2d 693 (2d Cir. 1992)” than “Federal Reporter, Second Series, Vol. 982, p. 693 (Court of Appeals for the Second Circuit 1992).” The former is much more Googleable, too!

    (3) You are criticizing the Bluebook both for adding too much with each edition and for not adding more sooner.

    (4) I completely agree that authors of law review articles often do not cite the best source for a proposition. The best law review editors will try to fix some of these. But at some point this moves from editing to authorship, and making sure all points are supported in the best way possible would add even more “untold hours” to the editing process. All I claimed, which I stand by, is that law review editors contribute significant value by fixing many significant substantive errors. Whether authors would check their work more carefully if they knew editors wouldn’t do it for them is an interesting question. But again, this has nothing to do with your rant against the Bluebook.

  16. Dreams from the typist’s cubicle:

    1) A single citation format that can be submitted to any and all journals and courts;

    2) Examples of types of citations (case, slip op, article, opponents’ briefs, statute) that will fit on a 3×5 card taped to my monitor;

    3) Underlining was a way of telling typesetters to italicize: guess what? computers do italics.

    4) Absence of periods in title abbreviations, continuation of initial caps; separate “clauses” in the citation with a comma and space.

    In general, standardize and simplify. You’re going to have to do that anyway, when typists give way to voice recognition software.

    Good luck with this project, dudes and dudettes!

  17. I still have my Twelfth Edition of the Uniform System of Citation. It is a neat little blue paperback of about 3 inches by 5 inches, half an inch thick, of 190 pages, including a detailed index. I am saddened to learn of the subsequent bloat. Overlawyering has touched off a new Alexandrian Age.

  18. Persistent URLs exist for most journal articles, typically routed through http://www.doi.org
    And there’s always archive.org for many non-DOI sites (as Marton H pointed out).

  19. What I find so funny is that in the “hard sciences” where I am a reformed practitioner, citations of prior work are a virtual requirement if you want to be taken seriously. No scientist I know has ever said his or her idea was original; rather they go to exhaustive lengths to tie experimental results to the work or others.

  20. You must be in law school if you are worried about the Bluebook. California courts have their own style manual which the courts themselves don’t necessarily follow. More critical than the rules is the requirement that citations be obvious. If the court’s research attorney is going to have trouble understanding, or accessing, the authority on which you relies, then your argument is in trouble. In practice, the audience is more important than the rules.

  21. They want to ‘deter readers’ ’cause they can’t write.

  22. It’s as if lawyers have no idea what those computer things they type on can do.

  23. CBS from the West

    “in the ‘hard sciences’…citations of prior work are a virtual requirement if you want to be taken seriously”

    This is a relatively new development. If you look at scientific publications from the early 20th century and before, citations are used very sparingly.

    I do think that there is an important role for putting your work in context: if your work is really completely innovative, drawing on nothing that has gone before, there is a good chance that it is just way off base! And it is a convenience to readers not to spell out the gory details of every little measurement used–just provide a synposis along with a reference to a good article describing how it’s done.

    And my impression of the literature in my field is that while authors bend over backwards to cite links to the work of others, they usually also make a point of spelling out just what their innovative contribution is.

  24. CBS from the West

    “…tacit realization by many academics that the vast body of their work is utterly irrelevant of no import to any person whatsoever…”

    Speaking as an academic, the spectrum of work carried out in academic institutions runs the full gamut from things that are of immediate practical value to things that are pure mental masturbation–though the former are much less common. But that is as it should be. Some of the purely cerebral activity gives rise to ideas that can be tested or piloted. And a small fraction of those turn out to work. And a small fraction of those can be turned into something that is useful to others. And some of those end up getting turned into real inventions.

    That is precisely the purpose of academia: to pursue and sometimes develop ideas that are too remote from practicality to be pursued by an industry that must generate profits. We would not today have microcomputers had the transistor not been invented. The transistor would not have been invented had quantum mechanics not been conceived. Quantum mechanics would not have been possible without the development of Hilbert spaces. But Hilbert spaces were developed “just for fun” by mathematicians who were seeking to build a more abstract, more esthetically appealing version of matrix algebra that could encompass an infinite number of dimensions.

    It took over a century to get from Hilbert spaces to microcomputers. Nobody can say which of today’s irrelevant ideas will bear fruit like that down the road.

    None of which, let me be clear, takes away from the importance of the guy pushing a brush on the sidewalk.

  25. Most scientific journals in the disciplines I know well quit abbreviating journal titles in references more than 25 years ago because the confusion in trying to decipher the abbreviations outweighed the cost savings in shortening the journal name. This was still during the era of actual printing.

    Anyway, I have never been impressed that lawyers worry much about holding down costs.

  26. Eric Alan Isaacson

    The greatist barrier to readily accessible and citable legal authorities is the tremendous amount of money that West Publishing and Reed Elsevier make charging for access to judicial opinions in forms whose citation is deemed acceptable. They’ve been permitted to seize a public good and appropriate it for private profits.

  27. Eric Alan Isaacson

    Most people don’t have access to Westlaw, LEXIS, HeinOnline, or JSTOR. And most people, quite frankly, can’t afford to pay for access to those “services.”

  28. Is anybody disputing the need for citations? CBS from the West is exactly right about the history, but citation is really the issue. Making the citation utterly opaque and burying it in a journal that most people never have access to is.

  29. Yes! Couldn’t remember their names. Thanks for the info.

  30. I completely agree with you. My gripe is with extraordinarily well-paid academics in law schools and business schools (also pulling down millions, in some cases, from outside work). I’ve done some of the scientific work you describe, and I thoroughly enjoyed it. I object to the arrogant contempt many of the professional school academics (the Laurence Tribes and Elena Kagans) have for people who are their betters in sense and sensibility (to borrow without citation!)

  31. The technological solution to this is simple, in a way, and demonstrates how preposterous the system truly is.

    Since I’m a geek, what comes to mind is that someone needs to define the XML Schema for law references. Then someone needs to build a catalog that includes all the reference targets. And finally someone needs to create a post-processor that turns a reference from said catalog into a useful representation for the target form – a web version can have a useful URL when available, and the form submitted to law review can follow whatever silly rules the law review has.

    Eventually, the law reviews will realize the stupidity of an obscure form, when it becomes manifestly clear that it can be *generated* to match whatever bizarre rules you want.

  32. @ ella___”due process” ?

  33. Blue Book citations weren’t so idiotic — I use the term precisely — 40 years ago. The system as I learnt it in the early 70s let a judge or opposing counsel find quickly what you allegedly talked about.

    The current typographical conventions are absurd and make conformity impossible.

    But, and this is a very big but, the social science conventions embodied in the Chicago Manual make it inconvenient, if not impossible, to find the precise point a writer relies upon. It is perfectly acceptable in that benighted system to make a specific assertion and cite a 30-page article without giving the reader a page number for the point.

    Cite checking an article in anthropology or economics makes me appreciate the principles of legal citation. Many of Judge Posner’s idiosyncracies — to be polite — I believe come from reading selectively but not well from economists whose attachment to precedent or fact is tangential.

  34. Simply.Brilliant.

  35. Earle, yes this is part of the broad concept of “due process”. It allows opposing parties and the court to find and read the cited material to determine if it supports the proposition, rule, law or policy at issue in the case. It is the same reason that neither party or the court can rely on a non-published case. Many cases while available are noted by the court as a non-published case. (How the net will eventually affect this concept is up in the air.)

    At the heart of “due process” is notice and an opportunity to be heard. Thus, it is important for all to have a uniform citation system.

    As for law review articles, they are rarely cited as compared to the primary materials of cases, court rules, statues, codes, and ordinances.

  36. Almost every marketing journal has their own citation format requirements, which is patently ridiculous and absurd. Such an approach only fuels sales of EndNote. One format would serve the discipline much better.

    I have noticed that Springer has adopted a uniform citation for its journals. Other journals have adopted the formatting method from a bigger, more dominant journal.

    Citations are important because it provides a guide to your argument. You are not making shit up. Economics and education journals have gotten lazy on this point. It is difficult to understand let alone follow what work has been done a particular theory.

    If I were appointed czar of legal journals, then I would outright ban the use of footnotes. This practice has been eliminated in many journals in many disciplines without a loss of knowledge or impactfulness of argument.

    If an author cannot integrate the issue or comment found in a footnote, then that should serve as a strong clue that the issue or comment is extraneous. That is, footnotes serve no purpose other than to slow down and frustrate the reader.

    A manuscript with footnotes provides a sure indication that the author has no idea of how to craft a manuscript. That is, the person cannot communicate a coherent argument.

  37. The example was a newspaper.

  38. I just went to this website and clicked a link from 2005 – “file not in archive”

  39. Who does the archiving? If it the author or institution they work at, your plan has already failed.

  40. The Scranton Times… the Sunday Times… the Tribune, GET THE PAPER!

    Thanks for unintentionally putting that jingle back in my head, James, now I won’t be able to get it out of there for a few days.

    Anyway, a lot of these newspaper URLs are temporary or go behind a paywall past a certain point. Ideally, you would cite to both the URL and the printed page, because once the URL goes boom you could fire up Lexis-Nexis and pull the article that way.

    Apart from that, though, excellent essay. And let’s hope that Posner–who I think is still loved (or at least admired) by legal academics of all political affiliations–will make a dent in the orthodoxy.

    Heck, make a platform of shuttering the “tier 4″ law schools and replacing the Bluebook with a 10 page pamphlet and I’ll vote you head of the ABA!

  41. I’m just a third-tier grad, and nickel and dime practititoner. Blue Book citation, to me, is an example of how complicated any comprehensive system gets at the margin. 99% of the cites that I use are appellate or Supreme Court decisions that are mandatory precedent in my jurisdiction, and not terribly difficult to format consistently and properly. We all know the mindset of appellate clerks (or enough of them, who prefer being dismissive over typos than actually analyzing an issue) and they are truly the first level of review. Consequently, I try pretty hard not to make basic citation mistakes that will harden their hearts against my case.

    That said, I would add that the Blue Book perhaps raises the “cost” of citing airier non-binding authority for consideration. That’s about it. Making “novel” legal arguments is far harder to succeed at than is commonly supposed. (Where are all these “activist judges” that I keep hearing about?) There are countless ways to be “dismissed” before you get the chance to make arguments about changing or improving the law. Spelling, grammar and usage errors can easily doom a brief before some clerk even notices the citations are in the wrong format or have form errors.

    It’s also extremely expensive to make new law. While a student learns to identify the procedural posture of an appellate case in the first few days of law school, what if she also had the billing records and docket report?

    The oddest thing about law school is that the common curriculum and case law format qualify students for being an appellate judge, and pretty much nothing else. Law school, for the most part, doesn’t teach you how to “think like a lawyer,” but rather as a plaintiff, defendant or appellate judge/Supreme Court justice.

    Without significant clinical or clerking experience, few grads and bar admittees are ready to represent ordinary clients who needs a TRO now. Law school is a swiss army knife education that doesn’t do anything particularly well, except make grads dangerous, and provide a cash cow for associated institutions via student loans.

  42. Once you have practiced for a few years I think that you will see the benefit of the uniform citation system. Other wise haw will you be able to look up the law your opponent relies on. Will you take it as a verity that you opponent will not stretch the law?

  43. PS How long will it take you to find Smith v. Jones without a citation? What about finding similar cases citing the same issue or holding with out a numeric citations? What about all of the past cases that use the numeric volume and page citation system?

  44. Bluebooking is a way of inculcating in elite lawyers (i.e., those on law review) obsessive attention to detail. There is some value in that, although great cost as well, quite apart from time wasted on blue-booking.

    Secondarily, it is a signaling mechanism. Here in Michigan, for example, for the state citation rules omit periods at the end of abbreviations. So, for example, the appellate court is “Mich App”. It is not enforced, but failure to do so screams “I’m not part of the local legal community.” Even if you think it is a bunch of nonsense, you’re never sure if the judge will equate “improper” citation form with second-rate lawyering.

    I’m particularly cranky about this because I’m filing a federal appellate brief tomorrow and I’ve had to involve a talented young lawyer/recent court clerk to spend meaningful time cleaning up citations, at the client’s expense, even though all of the “improper” citations were completely functional–no one would have any trouble deciphering the citation or finding the source material.

  45. FYI, California court rules require the use of EITHER the Bluebook or the California Style Manual.

    Rule 1.200. Format of citations
    Citations to cases and other authorities in all documents filed in the courts must be in the style established by either the California Style Manual or The Bluebook: A Uniform System of Citation, at the option of the party filing the document. The same style must be used consistently throughout the document.

  46. Point taken re: periods in citations. My only federal court practice is of Ch 7 no asset cases in Bankruptcy court. Never wrote a brief there.

  47. Bayard Waterbury

    There is a book which every writer has in his library, or should have: Elements of Style by William Strunk and E. B. White (these guys were a part of the New Yorker Magazine corps which included James Thurber). This book codifies the standards of English writing. Sure, if you’re Dylan Thomas, or Ernest Hemingway, you needn’t pay much attention, but for the rest of us, essential guidence for engineering the written page.

    Needless to say, the law needs something similar which sets an immutable standard for citations and legal writing. Lawyers are not naturally prosaic, and, in fact, have made a living at being obtuse and abstruse in what they pen. Citations are just the tip of the iceberg. I have don’t lots of legal research. My research professor was one William Robey, former head of legal research at the DOJ. Bill was wonderful. What a resource. With his help, it was possible to land on “all fours” much of the time. Legal research is tedious, to say the least, and is made far more difficult by the diffidence that lawyers have toward clarity.

  48. @ Peter D. Kinder

    Isn’t past selectivity prejudiced by the incoherent stagnant in-flux of societal evolution; whereas to say most common civilities of set-precedent would be null-n-void referencing fragmented[?], esoteric, and judicial systems aphorism citations?

  49. In all fairness to the Bluebook, the current edition is the 19th edition. The book probably started out with a noble and manageable purpose in mind, back in the days when the numbers and types of cite-worthy sources was limited. It has grown and become more bloated because the number of sources has grown. In recent years, the editors have also started to include citation rules for foreign sources. None of that is bad in and of itself. If you follow the Bluebook, the reader should be able to track down the original source. The only potential harm IMO is slavish obedience to the rules. But isn’t that the potential danger of any system of rules???

  50. Not surprised you’ve “achieved” the law review, James. But sorry we won’t see much of your writing whilst you run down those niggling citation issues…

  51. Ref: “Originalism and Precedent Revisited: Banzai as Bonsai (2/12/11)

    http://www.crookedtimber.org/2011/02/12/originalism-and-precedent-revisited-banzai-as bonsai/

  52. I appreciate the info shared here. Please keep up the good work. Best wishes to you..

  53. Rather than a “cult,” I prefer to think of the law as a guild: like any typical medieval guild, it has high barriers to entry, rites and rituals to maintain membership, and an air of mystery that it works hard to preserve (think judges’ wigs in the UK).

    The Bluebook, while ostensibly about making it easier to confirm (or refute) that a given source says what the brief-writer says it says, ends up just enabling the mystery-preservation function.