Features – The Bluebook Empire

Neil J. Squillante is the Publisher and Editor of The TechnoLawyer, an Internet publication for legal professionals interested in using technology to increase their productivity, reduce client costs, and become more competitive. Neil also manages The TechnoLawyer Discussion List, a critically acclaimed online discussion forum that serves as both the hub of The Technolawyer Community and the publishing vehicle for certain TechnoLawyer programs.

(Archived September 15, 1998)

The Harvard Law Review Association’s sixteenth edition of The Bluebook: A Uniform System of Citation (the Bluebook) remains the venerable citation guide loved by some and despised by many. Love it or hate it, the Bluebook has become the standard reference for citation in the legal community and will likely retain its hegemony for years to come. A perennial best seller, the Bluebook is a must for those who litigate in federal court or in any state court outside of California. Even transactional lawyers who haven’t entered a courtroom since they were sworn into the Bar use the Bluebook from time to time. Those who master its complexity save time and produce clean papers less likely to infuriate or confuse a judge, client, or superior.

The dominant status enjoyed by the Bluebook in the legal market is comparable to the dominant status enjoyed by Microsoft’s Windows software in the personal computer market. Both are so firmly entrenched in their respective markets that even arguably superior products competing for turf face an uphill battle at best. Nonetheless, neither has a true monopoly thanks to the constant press of technological change and American enterprise. (For example, the availability of court opinions on the Web and on CD-ROM has challenged the propriety of the reporter-based case citation system at the heart of previous editions of the Bluebook). Therefore, both Microsoft and the four law journals responsible for the Bluebook must maintain their respective franchises by updating and extending the feature set of their products while at the same time ensuring backward compatibility.

Backward Compatibility A Major Feature

When the fifteenth edition of the Bluebook hit the streets in 1991, it angered many in the legal community because of its re-organization and extensive overhaul of rules long committed to memory. The editors of the sixteenth edition seem determined to avoid any backlash this time around. As a result, the new edition features the same overall organization (or perhaps the better term is “citation ontology”) as its predecessor. Substantively, the Bluebook editors have added a variety of new rules (the new edition is 22 pages longer than the previous edition), but they have not fiddled with many of the existing ones. Those rules which have undergone significant alteration reflect new developments in legal publishing beyond the control of the editors. Indeed, as if to underscore its backward compatibility, the new edition’s front and back covers are identical to those of the last edition. Beware of picking up the previous edition by mistake when you next go Bluebook shopping!

Still A Tough Read

No compromise is without its downside. The decision by the editors to leave well enough alone in the new edition will certainly generate less criticism and maintain the Bluebook’s franchise, but it comes at the expense of interface innovation. By adding features like the “Practitioners’ Notes” and using blue paper to highlight frequently used rules and tables, the editors of the previous edition strove to make the Bluebook easier to use, but the editors of the new edition have abandoned this worthy goal.

Newcomers to the Bluebook, particularly uncertificated paralegals who must hit the ground running without the benefit of a legal research and writing course, will find the new edition just as daunting to navigate and understand as past editions. The myriad of cross references, the dizzying array of citations for popular and obscure sources alike, and the humongous index still exist largely unchanged. A godsend to seasoned users, these features often become a bottomless pit of confusion when confronted by beginners. Sadly, but perhaps necessarily, we will not witness a truly user-friendly Bluebook this century.

Internet Savvy

With the exception of those living in Buddhist monasteries not equipped with IBM computers, legal professionals are well aware of the Internet craze currently sweeping the country. Virtually every new product introduced these days ties itself to the Internet in some fashion. The new Bluebook is no exception. Rule 17.3.3 sets forth citation rules for “Internet Sources,” a welcome and much needed addition to the Bluebook. Though this rule admonishes readers to use “transient” Internet citations only when alternative printed sources are either unavailable or nonexistent, I suspect many legal professionals will want to “bookmark” this rule.

A citation to a source on the Internet should contain the author’s name if available, the “title or top-level heading” (this could range from the name of an entire Web site to the title of an article within a huge Web site), and the URL or “Uniform Resource Locator” (the unique electronic address that points to the source). The citation should also contain the date of publication if available; otherwise, the date “last modified” by the author or the date “visited” by the person citing the source will suffice. Thus, a citation to the American Bar Association’s recently published report on citation issues would look like this — ABA Special Committee On Citation Issues, Report And Recommendations (May 23, 1996) <http://www.abanet.org/ftp/pub/citation/home.html>.

Public Domain Case Citations

In the ABA Citation Report referred to above, the Citation Committee recommended that all federal and state courts adopt a “public domain” or “vendor neutral” case citation system. At the ABA’s annual meeting held in early August 1996, the ABA House of Delegates endorsed this proposal in a landslide vote. Whether the nation’s courts will actually adopt such a system and turn their backs on West Publishing Company remains unclear, but the Bluebook editors clearly do not want their citation opus to become obsolete in the process. As a result, they have taken a safe and politically correct stance on this unsettled issue. In what can best be described as a tour de force, the Bluebook editors have managed to embrace public domain case citations without alienating West — a feat for which the editors deserve praise.

Under rules P.3 and 10.3.1, public domain case citations have replaced traditional citations as the preferred source for cases. Though certainly significant, these rules contain some interesting twists and deferential nods to West that soften their blow. First, the rules only pertain to state cases, thereby tacitly acknowledging West’s strong relationship with federal judges and predicting that these judges will not adopt a public domain citation system anytime soon. Second, when the rules call for a parallel citation, the public domain citation, if one exists, replaces the official reporter but not the regional reporter; instead, the regional citation becomes optional. Finally, in situations not requiring a parallel citation, the public domain citation again becomes the primary citation but the rules permit a parallel citation to the regional reporter. It just so happens that West publishes all the regional reporters in this country and it seems likely that most legal professionals will add the optional West citation in the two situations outlined above.

Final Note

The sixteenth edition of the Bluebook is clearly worth the price of admission, particularly since the seventeenth edition will probably not surface for two to three years. In addition to its Internet functionality and its astute handling of public domain case citations, the sixteenth edition of the Bluebook also contains many small refinements that will make bluebooking slightly less painless. (For example, the editors have axed the “Contra” signal from Rule 1.2 and created a new subdivision to better explain the role of the “E.g.” signal.)

Still, despite its strengths, the new Bluebook is no dictionary when it comes to ease of use. Maybe someday, a happy medium will exist — perhaps two editions of the Bluebook, one abridged and one unabridged. In the meantime, most of us in the legal profession must make do with the sixteenth edition. It certainly beats the anarchy that would reign without such a resource.

Posted in: Features, Legal Research