By James Kwak

Yes, I have said some critical things about Posner in the past, usually about his penchant for abstract theoretical arguments that presume perfectly functioning markets. But I’m happy to say we can make common cause on an issue of much greater importance: the Bluebook.

The Bluebook is the 511-page “uniform system of citation” that is prescribed by — well, actually, by the editors of the main student law reviews at Columbia, Harvard, Penn, and Yale — and enforced by the student editors of law reviews (almost) everywhere. But it is not enforced by the courts, whose citation systems vary from jurisdiction to jurisdiction and are not effectively enforced by anyone, anyway. Posner calls it “a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.”[1]

There are many charges one can level at the Bluebook, and Posner touches on some of them, but he only scratches the surface. (Which he acknowledges, having written an earlier critique of the Bluebook twenty-five years ago.[2]) Lawyers and law students will be familiar with everything below, and can surely add their own criticisms.

The first, and most obvious, is that it’s full of silliness. A few examples:

Books are cited in large and small capitals (which I can’t reproduce here, so I’ll just do all caps): SIMON JOHNSON & JAMES KWAK, 13 BANKERS: THE WALL STREET TAKEOVER AND THE NEXT FINANCIAL MELTDOWN 188 (2010). (That’s page 188, by the way, with no comma.) Journal articles, however, are cited with the author in plain text, the article title in italics and the journal title in large and small capitals: Edward A. Zelinsky, The Defined Contribution Paradigm, 114 YALE L.J. 451, 457 (2004). (That means the article begins on page 451, and the citation is to page 457, after the comma.) Administrative documents like SEC releases are done in ordinary type, but regular reports of those same agencies should be in large and small capitals. Huh? (In most citation systems, article titles are in quotes, both book and journal titles are in italics, and you never use large and small capitals.)

In abbreviations where each element is a single letter, you do not put spaces between the letters; but if one element has more than one letter, you do put spaces around it. So: S.D.N.Y. (Southern District of New York); but D. Mass. (District of Massachusetts) But, if one of the abbreviations “refers to the name of an institutional entity,” it gets padding to separate it from other elements, as in N.Y.U. L. REV. But but, if the element is the abbreviation of an ordinal number, don’t pad it, as in F.3d (third series of F., whatever that is).

I could go on and on, but I would just lose readers, and really this isn’t that important, except for the thousands of hours of lost productivity the rules create.

More importantly, the Bluebook reinforces class distinctions. By making legal citations impossible for lay people to read, it serves the same function as the Vulgate Bible did. The most obvious example, which Posner ridicules, is the practice of abbreviating source titles to the point of indecipherability. Here’s Posner:

“An example that I have picked literally at random is ‘C.Ag.’ What does ‘C.Ag.’ stand for? Why, of course, the Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do they abbreviate Código de Águas “C.Ag”?).”[3]

Posner continues:

“Consider ‘Temp. Envtl. L. & Tech. J.,’ ‘ILSA J. Int’l & Comp. L.,’ ‘Emp. Rts. & Emp. Pol’y J.,’ and ‘AIPLA Q.J.’ These are names of journals. Now try figuring out ‘B.T.A.M. (P-H),’ ‘A. Ct. Crim. App.,’ ‘A.F. Ct. Crim. App.,’ ‘C.G. Ct. Crim. App.,’ ‘N-M Ct. Crim. App.,’ ‘Ne. Reg’l Parole Comm’n,’ and ‘Cent. Ill. Pub. Serv. Co.’ “What is the point? It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it ‘C.G. Ct. Crim. App.'”[4]

When I make this point, I say that the core principle of the Bluebook seems to date from a time when carbon paper was expensive, or perhaps when type was set by hand. The real cost today, when marginal bits are free, is that another academic, say a sociologist, might not be able to even figure out what journal to go to to follow a citation, defeating the most important function of citations.

Posner lays into the abbreviations, but he supports the most general secret code in the Bluebook: putting the volume number before the title. So, in “372 U.S. 335, 344 (1963),” that’s Volume 372 of the U.S. Reports (Supreme Court cases); 335 is the page the opinion starts on; and 344 is the page that is cited. Well, you might say, that’s just for cases and law reviews; it’s been done with cases for so long that it probably can’t be changed. But what is this? 3 THE LETTERS OF VIRGINIA WOOLF, 1923-1928, at 224. That’s page 224 of the third volume of Virginia Woolf’s collected letters, which covers the years 1923 to 1928, of course.

In sum, vast swathes of the Bluebook serve the purpose of shutting out lay readers — even those just one wing over in the ivory tower — which undermines a major purpose of citations.

Besides formatting citations in gibberish, the Bluebook makes readers’ lives harder in another way: by fetishizing the printed page. The general rule is that if something was published in print and on the Internet, you should cite to the printed version. So if an article appeared in the The Scranton Times Tribune and on its website, thetimes-tribune.com, you are not allowed to just cite the web version with a URL. Instead, some poor law review editor has to track down a physical copy of the newspaper, or a microfiche, find the page number, and put that page number in the citation. (I know one of those editors; otherwise I would never have known about this rule.) Now, which is better for the reader: the page number or the URL? You decide.

Well, one defense of the Bluebook is that it is comprehensive and uniform: it tells you exactly how to cite everything. But it doesn’t even do that well. For example, if a periodical has consecutive pagination within each volume (that is, the first page number of issue n+1 is one greater than the last page number of issue n, except that you start over at 1 once a year), you do it this way: 120 YALE L.J. 850 (2011), with no reference to the issue within the volume (Rule 16.3)[5]. If it doesn’t have consecutive pagination, you do it this way: FEDERAL RESERVE BULLETIN, February 2009, at A16-17 (Rule 16.4). But the Bluebook doesn’t say what to do if the periodical has issue numbers but no dates within a year, like this.[6]

Or how about this. On page 188 of 13 Bankers, we cited a statement that Michael Lewis made in a lecture to the Hudson Union Society, which I transcribed from a FORA.tv video, which was embedded in a Huffington Post news story. How do you cite that?

So what is the justification of this nonsense? Standardization, supposedly. Precision. One person at Yale said I was all wrong because I didn’t realize that legal scholarship required a higher degree of precision than other disciplines, pointing out that legal citations are generally to specific pages. Well, I wrote a dissertation back in the 1990s that had 834 footnotes, the vast majority to specific pages, which I indicated with a nice, helpful letter “p”.

Furthermore, if standardization is so important, why doesn’t the the legal system as a whole collapse? Different jurisdictions use different rules. Some differences are silly. For example, in the Bluebook you have to underline the period at the end of “Id.“; in Massachusetts courts you have to not underline it (“Id.”). Even more crazy, however, in law review format, the Bluebook says you have to italicize the period at the end of “Id.” Here it is without italics: “Id.” Me neither. (I do have a friend who can see the difference, at least in Microsoft Word; another friend suggests looking at documents in New Baskerville, where periods are square.)

Some differences are more significant. For example, in the Bluebook you are supposed to use national reporters for state cases, so Kerrigan v. Commissioner of Public Health would be 957 A.2d 407 (that’s volume 957 of the second series of Atlantic reports, page 407). But in all the states I’ve done work in you are supposed to cite to state reporters, so the same case would be 289 Conn. 135. Yet, despite this chaos, the world doesn’t end. (And, as Posner points out, the federal courts have no uniform system of citation, the Seventh Circuit, on which he sits, has no citation system,[7] and he created his own two-page system for his clerks to use.[8])

But more importantly, somewhere the baby got tossed with the bathwater. The most important purpose of citations is to tell readers what your sources are and allow them to go and look at your sources if they like. In law, I am confident that we spend more time on our citations than anyone else, yet our citations are harder to follow than anyone else’s. We are sinking untold hours into citation formatting that, taken as a whole, is worse than useless — it destroys value by reducing the informational content of the footnotes.

Posner concludes with an argument that the Bluebook exists because lawyers want to demonstrate that they have rigorous methods; but because their core method, legal reasoning, “is uncomfortably close to careful reading, to rhetoric, and to common sense,” the profession has instead sought rigor in citation formatting.[9]

Here I think Posner is being too elegant. I think the answer is simpler. Lawyers are a cult, citations are our rites, and the Bluebook is, not our Bible, but our prayer manual. It is a tradition in the true sense of that word: something we do because we have done it for as long as we can remember, and not for any other reason (even though people come up with justifications for it all the time). And traditions perpetuate themselves. I use the Bluebook format (as well as I can, that is) when I want to communicate with other people in the cult because, once the rites exist, it’s individually rational for me to follow them. It’s individually rational for law reviews to follow them as well. And so the system perpetuates itself year after year.

[1] Richard A. Posner, The Bluebook Blues, 120 YALE L.J. 850, 851 (2011). This is a Bluebook citation, and a relatively simple one, except that I can’t do “Yale” in large and small capitals as required. What does it mean? Even if you can figure out that “YALE L.J.” means “Yale Law Journal,” what do you think 120, 850, and 851 mean? Since this is a blog, though, I will kindly provide you a hyperlink to the article.

[2] Richard A. Posner, Goodbye to the Bluebook, 53 U. CHI. L. REV. 1343 (1986).

[3] Posner, supra note 1, at 853.

[4] Id. Can you see that the period after “Id” is italicized? Well, it is, because the Bluebook says it must be so.

[5] I only have the Eighteenth Edition, so it may be in a different place in the Nineteenth Edition.

[6] I expect some law review editor out there will say that there is a rule in there, somewhere, for this situation. But I’m not the slowest person in law school out there, and I pored over the rules for a while before giving up, and as we say in software, at some point it’s the system’s fault, not the user’s.

[7] Posner, supra note 1, at 859 (“My court does not have a citation form book, and the publishers of judicial opinions do not impose a citation style on our opinions. That means that the court reports published by West do not have a uniform citation style—and no one notices or objects.”).

[8] Id. at 858. Although I think Posner is being too cute by referring to his two-page guide, because it is really just a list of changes from the Bluebook standard: either his own personal rules or issues where he is more flexible.

[9] Id. at 860-61.