19 June 2004

A Short Comment on Legal Citation

I've never been a fan of the legal citation form encouraged by the Blue Book—or, indeed, any of the so-called "alternatives" that assert themselves as "alternatives" but instead merely relax the window dressing. The purpose of any system of legal citation must be to enable the reader to unambiguously find and evaluate claims of authority. (We'll leave aside the profession's wholesale redefinition of what constitutes "primary" authority as a bad exercise in rhetoric.) It cannot—or at least should not—be keeping second-year honors students at law schools busy with scutwork instead of thinking through their notes and comments.

Part of the problem is that the system of citation is not constructed for use; analyzing the linguistic presentation only reaffirms this. Here's a sample citation, in excrutiatingly proper Blue Book form for law review footnotes:

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986)

Note the differences, though, if it appears in the running text of a law review article,

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986)

a brief or other document in law practice (pretending for a moment that most lawyers have not, in fact, discovered that their word processors can do italics as readily as underlining),

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986)

and a later "short form" citation in a law review footnote, after a full citation has been provided,

Meritor, 477 U.S. at 59

(For clarity, I have excluded any terminal punctuation from the above.) This system is wasteful, moronic, confusing, and wholly unnecessary.

I find the "belt and suspenders" approach to full-form citation rather annoying. Courts of appeals have long required a "table of authorities" at the beginning of the brief that sets out the full citation in question. Trial courts are increasingly requiring the same thing. So, then, (1) why duplicate the full citation in the body of the brief, and (2) why not append the same thing to an academic article—like every other discipline recommends—and do away with full-form citations in footnotes? <SARCASM> This might help a bit with "footnote envy," because we can then argue over whether exhaustive citation and analysis of only a few sources is superior to citation lists exceeding the length of the article. </SARCASM> Then we would no longer need to worry about making sure that the first use in the body of the article is the full form, even if there's a reorganization later. Or, for that matter, about whether we had too many consecutive ids. (Given that we're lawyers and can't be bothered to use the traditional ibid., maybe we should call them egos instead.)

The order of materials in the citation has thrown logic out the window. Not the second-story window, but from the top floor of the Hancock Building. In the real world of libraries, computerized databases, and even piles of hastily photocopied cases, we need to know what basic source we're looking for first. We don't have all of the volume 477s gathered together; we have United States Reports gathered together. So, then, shouldn't we designate sources from "greatest to smallest", like the rest of the world does? And, since currency of information is so much more important in legal work than in most scholarship, shouldn't the date of the information be grouped with the name, as in scientific citation? The most important advantage is that doing so results in a truly medium-independent structure of citation form. A secondary advantage is that I can walk around in a library in a coherent fashion from the front to the back of the unambiguous item designator.

Last, there's the whole issue of "allowed" abbreviations and punctuation. For example, the number of letters in an abbreviation determines whether one can "close it up" with adjacent abbreviations, and even series designators. By tradition, there are only 999 volumes in a series, although this perhaps indicates only that early twentieth-century lawyers couldn't count any higher than that (which does not explain 1500-page individual volumes, but we're not really consistent anyway). Further, we've overloaded some punctuation characters and almost completely neglected others—we use commas for practically everything, even between parallel citations! The results look like this,

189 F. Supp. 2d 1051, 1059
87 N.W. 111

and failing to get the spacing right exposes a lawyer to shame and disgrace for generations to come. Something like this would be much better:


But then, I see no reason that the law can't be rational. At least part of the time.

Why this little rant now? Because I'm in the midst of trying to explain to some nonlawyers who want to study the rhetoric of major First Amendment cases how to find the damned things in the first place. And that's supposed to be the point of a "citation system": finding the material later.