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Citation Wars Redux

The Internet has eroded traditional sources of authority. Where once the Encyclopedia Britannica was a final word on many subjects, Wikipedia now reigns supreme. A decade or two ago, the annual Information Please almanac with its sweet index could settle all arguments, now a Google search will do. A highly articulated structure of editors and review panels once guarded the mountain top of cognitive authority. But no more. The retrieval of information no longer troubles us, sorting out the glut of data is the trick. Yet one source holds sway in the world of legal information: The Uniform System of Citation, aka the Bluebook, has held fast. 

After fighting off the assault of Judge Posner’s practical Red Book and the more modern and accessible ALWD Citation Manual, the Bluebook is battle tested. It does not survive through its utility. It survives because of its power. In a 2011 Yale Law Journal article, the ever-restrained Judge Posner wrote:

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Its archaic symbols and abbreviations remain a challenge to use. Learning its intricacies still serves as a means of hazing students who wish to join an academic law journal or who wish to survive a first year course in legal writing. Why? Part of the Bluebooks’s resilience lies in the installed base of jurists and law professors who, forced to master it as a part of the process of legal education, feel obliged to require others to do the same. This is a human trait that I have never understood. If one suffers through some awful experience shouldn’t one wish to fix it? But so often one instead wishes others to go through the same agony. It is one of humankind’s less pleasant attributes. The Bluebook resembles a secret code, known only to the elect. As Kathleen Vanden Heuvel puts it, mastering it makes one a member of a special club: outsiders will be lost in the maze.

The prestige of the authors of the Bluebook plays a role as well. The law reviews of Harvard, Yale, Columbia and Penn produce this gem, putting it through edition after edition, each one of which must be bought either in paper or via online service. I do not know how much money it produces for each review (I asked and was told to talk to an attorney) but the Harvard Law Review has its own building.

This situation poses a familiar conundrum. If the use of the Bluebook is required by Courts and is so much a standard that everyone has to use it, how can anyone own it? Is this a shadow of the worries about Thomson Reuters West owning judicial opinions? I think that it is different. TRW is a publicly held company and it acts as the deity intended, it is about profit. One expects no more. The four law schools that produce the Blue Book are about education. Should they be in it for the money? Or is my premise here totally misguided? Is it all about the money?

If you hear a bugle call, you are right. The indefatigable Carl Malmud is riding over the hill and he is in hot pursuit. Carl believes in public access to public information. Should the average citizen be able to use the legally required citation system for free? The question is not whether these top tier law school law reviews can corner the market and exploit it, the question is should they? Should they at least think about it? Can the public interest ever outweigh an income stream? I bet a nickel on Carl. The edifice of any paper-based citation may be crumbling as official entities migrate to digital publishing but it would be a grand gesture to open the sluice gates and to admit anyone while the system is still viable.

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Comments

  1. What would it mean to ‘open up’ a legal citation system and ‘admit anyone’? The Bluebook may be cumbersome, but do you suggest that authors of works for legal journals should be able to cite any way they wish? Or just use another recognized system, like the two you mention? Are you arguing for an oligopoly rather than a monopoly?

  2. Opening up legal citation means abandoning those forms of citation that serve no useful purpose, or, where the limited purpose they serve is outweighed by the complexity of their form. Simplify where you can. Take, for example, case citation. I see little reason to preserve printed parallel citation when reporters publish most, if not all, cases and are no longer selective. The proliferation of rules and non-intuitive forms of citation are the problem – another recognized, but greatly simplified system might be the answer. But with simplicity and an open floodgate of information comes the second problem – finding persuasive authority in the internet rat’s nest where little front-end work is done to properly organize and present information…. that’s why those expensive loose-leaf services are still making a buck.

  3. At a basic level, “opening up” legal citation would be to make the text of any citation manual available to the public freely on an open-access basis and without copyright restrictions. Any citation guide approved as a uniform standard for use by our courts, legislatures and even law school journals should be open access and freely available to the profession and the public. Any other basis of standard-setting defeats the spirit of public access to legal information and institutionalizes the role of commercial law publishers. Law schools should not be in the business of setting standards and then restricting access to them.

    As for the other irrational excesses of legal citation, I and others have written about them at length. But the the mantra should be: Make the Bluebook and the McGuide free, as the British (Oxford) and Australian (Melbourne) guides are free.

  4. Why would Carswell / Thomson / McGill want to make the McGill guide free when the BCCA has recently mandated that the 7th ed will be the standard for citation of legal material? After all, it’s merely $56 in soft cover (not including taxes and shipping, if any) – way less than the price of a good steak dinner with passable bottle of wine – and can be used more than once.

    Albeit some of those usages may be one time.

    Those interested in a more upscale relationship can spend $102 on the hardcover.

    These are current direct from Carswell prices. “Previously-owned” copies of the 7th ed. will, I assume, eventually appear on the web or in used book stores.