Everybody Hates The Bluebook: An Example

I’m taking a break from post-election thoughts to write about something much less upsetting: The Bluebook. I recently wrote a 27-page book review of the 20th Edition. Seriously. You should check it out.

In the review, I argue that many critiques of The Bluebook don’t critique the actual book. Rather, they seem to be upset about something altogether different, with The Bluebook just providing an easy target for their scorn.

An instant classic of the genre appeared today in Above The Law. An in-house lawyer offers a recommendation to future in-house lawyers: “Burn Your Bluebook.” Yikes! Look, I admit I’ve never worked as in-house counsel. And I wouldn’t be surprised if in-house lawyers rarely used The Bluebook. But the complaints in the article have almost nothing to do with The Bluebook. You could burn (or not burn) pretty much anything and you’d have just as much of an effect on the problems outlined in the article, since the author’s dispute is not with The Bluebook as a citation guide. Rather, the author seems to dislike providing any legal authority whatsoever in his memoranda. That’s fine! But that has nothing to do with The Bluebook, which contains rules to follow for when you do want to cite to legal authority in your memoranda.

The piece starts off well enough:

During law school, between law review, moot course, and the school’s legal writing curricula, students understandably begin to think the Bluebook is as important as the Bible.

I agree that some students can focus too much on Bluebooking. But that’s not a widespread problem, at least not based on my own review of student papers. Anyway, moving on:

Strict Bluebook adherents revolt at the idea of updating it and they scream blasphemy at the mention of using a short-form citation. After all, why would any self-respecting student want to use a 10-word citation when there is a perfectly good 50-word version of it out there to use instead?

Why would “adherents” reject a short-form citation? The entire concept of the short-form citation is based on a Bluebook rule. Bluebook adherents love short-form citations. Every “self-respecting student” would prefer to use a shorter citation as long as the reference is clear to the reader. And what Bluebook rule calls for 50-word citations? This is the first hint that the author’s complaint is not with The Bluebook, but with some alternate-reality version of The Bluebook.

Admittedly, I was no exception to believing this Bluebook gospel.

This admission is critical. The author no longer uses The Bluebook in his in-house practice. But I suspect that is (at least partially) because he learned The Bluebook in law school and what he remembers is good enough for day-to-day use. So yes, you don’t need your Bluebook, provided that you’ve already learned The Bluebook well enough to get by.

I slowly began to realize, when working in-house, locating the proper Bluebook citation is far less important than locating the right answer as fast as possible and relaying it in terms everyone can understand.

Nobody disputes this. Of course proper citation format is less important than actually having the correct substantive legal answer. Nothing in The Bluebook says that substance should give way to citation format. And nothing in The Bluebook prohibits substantive writing “in terms everyone can understand.” Again, this is not a critique of The Bluebook.

Unless I am filing something with the court, you can bet I skip over your perfect citation and trust you found the right source of authority on your own.

A few things: (1) I very much appreciate the implication that “perfect citation” is important when “filing something with the court. (2) As I discuss in my review, there’s a large difference between “perfect citation” under the so-called “Whitepages” for law review editors, and “good enough” citation under the “Bluepages” for practitioners. Much of the fretting about “perfect citation” could be remedied by using the right set of rules. (3) If the reader “trust[s] you found the right source of authority,” then perhaps a citation isn’t needed at all. That’s just fine! The Bluebook doesn’t apply of its own force to all writing. If you don’t want to provide citations, go wild! What’s The Bluebook going to do about it?

Besides, one of in-house’s primary roles is to take often confusing legal jargon, be it a new federal regulation or a contract laden with legalese, and translate it into plain speak our non-attorney colleagues can act on.

The Bluebook contains rules for formatting citations. It has nothing to do with how you write substantive sentences explaining the law. You can (and should!) write a sentence without legal jargon and then, if you want, include a citation after it. Or you can skip the citation. But The Bluebook can’t be blamed for problems with your substantive writing. If anything, providing a citation at the end of a sentence or in a footnote can remove clutter from your writing. Here are two examples:

  1. In Ziff v. State, the Washington Supreme Court held that coffee was the official drink of Washington.
  2. Coffee is the official drink of Washington. See Ziff v. State, 11 Wn.2d 358 (2015). [ed. note: If you really want to clear up your writing, put the citation in a footnote. Then your reader can ignore it altogether if she wants to!]

Example #2 allows the writer to focus on the substance of the sentence, without distracting references to case names and jurisdictions that likely don’t interest the reader.

You can bet even my brain surgeon colleagues will not understand an attorney’s use of Id., et seq., and the always fun to draw § symbol.

Here we reach the heart of the problem. The author doesn’t dislike The Bluebook. The author just doesn’t want to provide any citations to authority. That’s fine! Litigators as well as in-house lawyers make decisions about how much authority to provide in a given document. I provide a lot of authority in a brief filed with the court. I provide less in a quick email to a partner responding to a simple research question. I likely provide even less in a mediation letter. And I don’t provide any citations to legal authority in emails to my parents. If I did, I wouldn’t blame The Bluebook. That would be an entirely separate problem.

Anyway, back to the critique of The Bluebook: In place of Id., I doubt readers would prefer another full (or short) citation to the original source. So again, this is just a desire to avoid citing to any legal authority. And again, if you don’t want to provide any authority in your communications to your clients, that’s fine.

The Bluebook specifically prohibits the use of et seq. so I don’t know what that’s about.

As for the fun § symbol, I don’t think the author is arguing for more use of the full word “section” when referencing legal authority. Instead, again, the author just doesn’t want to reference legal authority at all.

And now the story of the kid who didn’t get a job because he used The Bluebook:

The first assignment he completed for me was legally flawless, except that his use of Bluebook-perfect footnotes pushed what should have been a two-page memo onto four pages. And while four pages may not seem unreasonable, given the key audience described above, you can bet their eyes had glazed over long before they hit the third page.

Despite my continual coaching, by the time he ended his clerkship, the best we could do was to get him down to three pages. A victory to be sure, but not enough to secure him an offer for post-graduation employment. While I have no doubt this particular student will go on to a long and successful career in the law, it will be as a judicial clerk or a federal litigator, not in the in-house world.

First, no complaint that the first assignment took too long to complete! And it was legally flawless! So all that perfect Bluebooking didn’t come at the expense of substance.

Second, was the problem that the footnotes were “Bluebook-perfect”? Or was the problem that the memo included too many footnotes? Or were there too many string-cites of authority in the footnotes? In other words, what’s the Bluebook-related problem here? Why not just delete the footnotes, like Chief Justice Rehnquist did to then-clerk John Roberts? That would seem less drastic than no-offering the guy.

Third, if all the citations were in footnotes, then was there a problem with this person’s above-the-line writing? If not—if the above-the-line writing avoided jargon, if it properly translated the issue from legalese to plain language—then what was the Bluebook-related problem in the footnotes? And if the above-the-line writing was unclear, jargon-filled legalese, then that’s a substantive writing problem that has nothing to do with whatever was happening below the line.

I know the Bluebook is not going anywhere anytime soon, and nor should it. It has its place in judicial opinions . . . .

Tell that to Judge Posner.

However, if you ever dream of working in-house, go ahead and burn your Bluebook now and start to focus on writing for the masses.

I’d imagine that a basic understanding of The Bluebook is still useful for in-house counsel. Sure, you don’t need to memorize the entire rule on subsequent history, but you probably need to know enough not to reference a case like this: [CA9] David Ziff v. The United States of America, July 9, 2016, page *9.

But more importantly, there’s no conflict between learning the basics of The Bluebook and writing for the masses. We can debate how much citation to authority is appropriate for different audiences. And we can debate whether to place authority in footnotes (where they don’t interrupt the substantive writing) or in the text (where readers can immediately glean information about the supporting authority without looking below the line). At some point, however, you’ll need to reference a case or a statute in a written document to another lawyer. And you’d better have some idea how to do it. The Bluebook can help.

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