What is Obviously Wrong with the Bluebook, yet Eminently Curable
With BigLaw hiring pushing journal tryouts to January, 1Ls now have the pleasure of leaving winter break to begin a test on the minutiae of the Bluebook’s Whitepages. Many students, one imagines, will join its numerous critics; the Bluebook is much maligned. Criticism tends to focus on its length and promotion of tedious rule-following, although, to some extent, this charge seems misplaced. The Bluebook’s length is explained in part by the variety of sources used in legal scholarship, and rules prevent inconsistencies that would distract the reader.
The necessity of rules is no defense of the existing ones, however. Oddly, the Bluebook’s single most problematic rule in my view—problematic because it goes to substance rather than form—is one I have never seen mentioned: It does not require citations to books to include the publisher (aside from reprints and books first published before 1900). Although lawyers may find this omission trivial, to the scholarly eye, the publisher—whether, say, Harvard University Press, HarperCollins, or Regnery Publishing—conveys key information about a book’s substance and credibility, including whether it has been peer reviewed.
At the other extreme, changing no substance but simply annoying readers and editors, are the Bluebook’s bizarre quirks and discrepancies. Why are case names italicized in short form but not in full citations? Why are authors of books given small caps, but not authors of anything else? Why, in fact, use small caps at all? And what’s the point of abbreviations? Where the Bluebook is not inconsistent with itself, it is inconsistent with practically every other style guide—such as in using italics, rather than quotation marks, for chapter and article titles and small caps, rather than italics, for book and journal titles.
Somewhere in between these extremes is the odd practice of supra citations the second time a source is cited. Most citation formats would either require an appropriate short form, including the title of the source, in the footnote or would put full citations in a centralized bibliography at the end of the piece. Either practice is convenient enough for readers who want to identify the source. Instead, the Bluebook forces the interested reader to flip (or scroll) up to the first citation and down again. Supra citations interrupt the reader’s flow for no discernable benefit.
Another unfortunate requirement in this vein is Rule 1.2(f), which requires “pincites” for all citations except those preceded by “see generally.” Since this signal applies only to citations that provide “helpful background material,” the rule seems to assume that there cannot be a source that is, in its entirety, directly relevant to the main text. It thus requires editors to select an arbitrary, even misleading page range.
In fact, the Bluebook embodies many pathologies of the legal academy. One is its outdatedness. The Bluebook’s first edition came out in 1926, which makes this year its 100th anniversary. Some of its features, such as the use of small caps, remain calibrated to the typewriters and mechanical printing presses used in the early twentieth century. 1926 is not as long ago as Henry IV, but that does not make it any less revolting to follow Rule 15.
Another problem is the way the Bluebook thoughtlessly transfers rules that are perfectly appropriate in the courtroom context to scholarly writing, where they make little sense. For instance, abbreviations save space in legal briefs that use in-line citations and are subject to page limits. But they serve no plausible purpose in footnotes.
These flaws are easy to fix: the Bluebook could modify citations, rationalize its font requirements, introduce proper short forms, and abolish abbreviations altogether with a single update.
So why not change things up? The Bluebook is managed by editors at the Harvard Law Review and a few other journals. They serve for a year before moving on to brighter things and have, presumably, little incentive to rock the boat for the long-term good. Meanwhile, competitors like the ALWD Guide to Legal Citation and UChicago’s Maroonbook have been unable to displace the Bluebook. The Virginia Law Review tries as well with our Slatebook, which pleasantly eschews the italicization and small caps rules but drowns footnotes in monotonous plain text that impedes distinguishing the components of a citation.
It seems to me that the real issue is yet another pathology of American law schools, a collective action problem. The easiest choice for any single journal is to follow the same manual everyone else uses. The United Kingdom, where Oxford and Cambridge sit at the apex of legal education, modernized citation with the Oxford University Standard for Citation of Legal Authorities. The U.S., with its strongly decentralized higher education sector, simply cannot force through the necessary changes. And so the mass of Bluebook critics grows.
