Column

Apples, Oranges and Legal Citation Practice

I have been prompted to write this column by several recent posts on Slaw: Gary Rodrigues’s column “Reality Check: Fact, Fiction and Case Citations”, and more recently, Susan Munro’s “How I Learned to Stop Worrying and Love the Neutral Citation”. With the new fall term just beginning, and thousands of first-year law students across the country entering upon legal studies; and with the student editors of the McGill Law Journal preparing yet another new edition of the Canadian Guide to Uniform Legal Citation (incredibly, the 8th since its first appearance in 1986), I thought it an opportune moment to add my thoughts on the practice of legal citation and how we – and specifically the editors of the McGill Guide – would do well to reconsider both the ends and the means of legal citation as currently practised.

What is the purpose of legal citation? In his Introduction to Basic Legal Citation (Online ed, 2010) – admirable not least for being available open-access in HTML format on Cornell LII and in multiple ebook formats on CALI’s eLangdell – Peter W. Martin succinctly defines legal citation as “a standard language that allows one writer to refer to legal authorities with sufficient precision and generality that others can follow the references”. With the removal of the word “legal”, this could be the definition of the citation system for any academic discipline: the MLA style for the humanities (MLA Handbook for Writers of Research Papers, 7th ed, Modern Language Association, 2009), the APA style for the social sciences (Publication Manual of the American Psychological Association, 6th ed, 2010), or the CSE style for science writers (Scientific Style and Format: The CSE Manual for Writers, Editors and Publishers, 7th ed, Council of Science Editors, 2006). Indeed, the styles described in these non-legal style guides are broadly similar. Why is it, then, that citation systems for law – whether the Harvard Bluebook, the Chicago Maroon Book, the Canadian McGill Guide, the British OSCOLA: Oxford University Standard for Citation of Legal Authorities or the Australian Guide to Legal Citation (AGLC) – are so idiosyncratic and radically different from these other citation systems, offering a system of citation that bears little relation to these others, at once more complex and detailed while less comprehensive in scope?

The usual rationale for the complexity of legal citation practice is the variety of authorities and sources, especially primary sources, to which a legal writer or researcher must regularly refer. After his definition of legal citation quoted above, Peter Martin describes this defining peculiarity of accepted legal citation practice:

Because writing by lawyers and judges is so dependent on such references, [legal citation] is a language of abbreviations and special terms. While this encryption creates difficulty for lay readers, it achieves a dramatic reduction in the space consumed by the, often numerous, references.

It is specifically this “encryption” and its concomitant “difficulty for lay readers” (and legal professionals, too?) that sets legal citation practice apart from that of other disciplines. While citation styles in other disciplines have moved increasingly towards greater simplicity and clarity, concentrating on malleable concepts and abandoning the use of arcane bibliographic terms and obscure abbreviations, all legal citation guides continue to share and suffer from the same conceptual error: namely, that there should be a rule for every possible source to which a legal professional might refer and, better yet, an abbreviation for every source in which the reference might be found.

When I studied palaeography at the University of Cologne in Germany, the standard reference work was Cappelli’s Lexicon abbreviaturarum or “Dictionary of Abbreviations”. It was standard practice in mediaeval scriptoria and on into the early years of printing, when parchment and then paper were enormously expensive, to abbreviate every possible word or phrase in order to save space on the page. Without Cappelli’s Lexicon, it would be impossible for modern readers of early manuscripts to understand what is written or referred to, even if we can read the letters. While a few of these abbreviations have become part of standard modern English – eg for exempli gratia (for example), etc for et cetera (and others), ie for id est (that is), am and pm for time, AD and BC for dates – the practice of using abbreviations in scholarly writing, especially in citations, is now widely accepted to be archaic, obscure and elitist, an effective barrier to access and understanding. Paper is cheap and digital space is practically free, so there is no longer any practical need to abbreviate anymore, whether writing for print or for online. While MLA and the other style guides have eliminated the programmatic use of abbreviations in bibliographic references (no more op cit or ibid) and in the citation of periodical sources, the students responsible for refining legal citation practice continue to develop ever more incomprehensible abbreviations for increasingly obscure purposes and sources. (The once exception is the editors of the Australian Guide to Legal Citation, who prefer that periodical titles be written in full.) I find these practices archaic, objectionable and increasingly unacceptable and out of step with practice in other disciplines.

For example:

Why write aff’g, rev’g, aff’d  or rev’d (McGill rule 3.11) when it would be so much clearer for the reader, especially the lay reader, to write in full affirming, reversing, affirmed and reversed.

What does (1964) 24 UMKC L Rev 121 refer to? How much more meaningful would it be for the reader if we followed MLA style and wrote University of Missouri at Kansas City Law Review 24 (1964): 121-156.

Why say “at” for a pinpoint reference when, as in other styles, a comma or colon would suffice and serve the same purpose without any loss of meaning? Punctuation can be an unnecessary distraction (writing U.S. for US, or D.L.R. for DLR) or it can be meaningful as in this instance. Unfortunately, the student editors of our citation guides seem unable to make the distinction.

Would we be saddled with these inanities if someone other than students – say, an expert team of practitioners, jurists, academics and librarians – were responsible for developing our citation practices? Or would the experts be as beholden to tradition and “legal precedent” as our students? Is there not an air of exclusivity in the way we practice legal citation? It has a Masonic quality, a secret code accessible only to initiates, serving to intimidate and alienate non-lawyers. There is an almost puerile aspect to this obsession with abbeviations. What does SZIER stand for? Let me check my Dick Tracy Secret Decoder Watch! Yes! It stands for Revue suisse de droit international et de droit européen! Who knew! (Secret decoder watch available only to club members.)

In light of the increasingly interdisciplinary nature of academic research, especially in the legal academy, wouldn’t it be preferable if we abandoned currently accepted legal citation practices for secondary resources, both print and online, and just used the MLA style? Shouldn’t we be more like them and less like us? How much easier that would be for readers in other disciplines or for legal scholars writing for a more catholic audience! I was recently astounded by the situation of a student in our LLM program. Like an increasing number of students in LLM programs, he did not have a JD. He had just submitted a first draft of part of his thesis (environmental regulation), and his supervisor (a law professor) had sent him back to the library to convert every reference in the paper from MLA to McGill style. Cui bono?

There are many needless rules and even some silly ones in the McGill Guide. What is the point of rule 3.8.1:

When a judgment has been published in a printed reporter and/or has a neutral citation, write the neutral citation of the printed reporter, then write in parentheses available on, followed by the name of the service. Example: R v Wilkening, 2009 ABCA 9 (available on WL Can).

In the year 2012, every case will be available almost everywhere, so what’s the point of singling out one service in particular? Can this rule possibly serve any purpose other than to promote a commercial publisher’s service? Surely, all that matters is a reference to the source consulted?

The McGill and Oxford (OSCOLA) Guides differ on practice regarding the Yearbooks.

McGill: Waldon v Marshall (1370), YB Mich 43 Edw III, pl 38, fol 33

Oxford: Waldon v Marshall (1370), YB Mich 43 Edw III, fol 33, pl 38

We share a legal tradition and history, legal precedents, even a language. Surely our students can agree on a common citation format for the Yearbooks?

Legal citation guides – whether red, blue, maroon or black – hold themselves to be and are widely accepted as national standards for legal citation. They are essential reference works for every judge, lawyer, law student and law librarian, and increasingly for any lay person who wants to access the law. Unfortunately, it seems that no one inside the profession, and certainly not the students to whom we have neglectfully devolved all responsibility in the matter, has the will or the experience to question the rationale for the hoary rules of legal citation. Instead, the rules continue to develop as though their refinement will remedy the problems they have created. Worse, they continue to extend into the digital era antiquated concepts and practices that were developed specifically to address non-existent problems arising from print media.

The dramatic increase in digital media for accessing and researching the law, general dissatisfaction with the dominant citation format and the imperative of facilitating access to law all dictate a framework for citation that is simple, clear, consistent and accessible. The ideal system would also be international (a common law collaboration?) and consider practices in other disciplines; and, in this age of open access in scholarly publishing and free access to law, it should also be open and free.

In his review of the 19th edition (2010) of the Bluebook“The Bluebook Blues”, Yale Law Journal 120 (2011): 850-861 – Judge Richard Posner of the US Court of Appeals for the Seventh Circuit, had the following to say:

I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness—“The horror! The horror!”—and am tempted to end there.

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Comments

  1. If Iceland can crowd-source a constitution perhaps the Canadian legal profession can crowd-source new citation rules, which once finalized, can reside on CanLII for everyone to access for free.

  2. OSCOLA was developed by Prof Peter Birks, and the updating is done by the Faculty, we don’t have students working on it. I worked with the authors (who were law postgrads) on AGLC for the 1st and 2nd editions, and the aim of it was to address the newly emerging e-resources – Australia being the first place to have neutral citations endorsed by its High Court in 1995, and because the Blue Book did not deal with Australian materials. OSCOLA is much more of a light touch guide rather than a prescriptive bible such as the Blue Book, leaving a lot more to the discretion of the authors.
    Louis – whilst I agree about the ideal of having a single source, can you imagine the work (and compromises!)that would be involved in creating a single citation referencing tool just for common law….

  3. Ruth — Thanks for your comments and the additional background on AGLC and OSCOLA. Of the legal citation guides out there, OSCOLA is my favourite for the reasons you describe — and, of course, because of its Creative Commons licence.

    In my opinion, the work — and the compromises — required to create a single citation reference tool for common law jurisdictions are neither onerous nor insurmountable. They just require will and commitment to a new vision. An easy first step, requiring neither work nor effort, would be for all of us to admit that there’s no reason for law to have a separate, idiosyncratic style for citing secondary materials. We should abandon this unnessary usage for the sakes of both access to justice and accessible scholarship.

  4. Christine Kirchberger (iinek)

    Thank you for a very interesting post! I find it intriguing that all the guides you mentioned aim at providing a certain standard, though it is unclear how widely adapted that standard has to be.

    Teaching at an international master programme, we see the challenge to find a uniform set of citation rules that all students can understand and adapt to. Due to the variety of guidelines out there, we, unfortunately, ended up creating our own “standard” which we saw fit best.

    A widely accepted standard of citations would not only facilitate referencing but also improve legal information retrieval as the sources could be represented by their citations and therefore linking and creating a common framework of legal sources would become a goal easier to achieve.

  5. This post was informative and thought-provoking. The McGill Guide causes me to confront my own internal confluct between a desire for precision, uniformity and a sense of superiority borne of my supposed knowledge of citation rules and the reality that, given all other complexities of legal practice, keeping up with the ever-changing and sometimes unexpected rules can seem like an unnecessary burden. However, failure to keep up with the changes can make you seem antiquated eventually, as with those who still underline case names, or don’t italicizes the v. The point about conflict with MLA is another good one. Studying in another field post-LLB forces you to unlearn and learn rules to an unknown end other than your GPA. This post has caused me to re-think some of my assumptions about citation and the McGill Guide. I look forward to the 8th edition and the discussion that will follow.

  6. Bravo Louis Mirando! Well said.