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Having said goodbye to the Bluebook, Judge Posner tosses it in the trash bin and sets the bin afire

I am reading and hugely enjoying Richard Posner’s Reflections on Judging. The best book of its sort I have read in a very long time, at least half-way in.

His subject is legal reasoning and writing, and the book is in many ways a memoir, along with an explication of Posner’s views and expectations about legal writing and reasoning. Many of the themes are one’s he’s visited elsewhere, such as his views about legal realism and formalism, and his intense dislike for the Bluebook manual of citations. He writes:

[E]fforts to impose uniformity beyond the basic conventions encounter rapidly diminishing returns well illustrated by the Bluebooks obsession with abbreviations. Asn example plucked literally at random from the latest edition is “C.Ag.” What does C.Ag stand for? Why, of course, the Código Águas of Brazil. Now suppose one had occasion to cite the Código 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– for do they abbreviate Código Águas “C.Ag”? …

One understands why law clerks follow the Bluebook. But why a judge would direct his law clerks to do so, or even tolerate them doing so, is a mystery to me. Are judges sheep? Why should they care what kids at the Harvard Law Review consider proper abbreviation? I suppose the explanation is twofold (threefold, if one includes the ovine factor). First is respect for “authority.” … Second is the passivity, characteristic of judges in an adversarial system– who tend (though sometimes just pretend) to think of themselves as “umpires” who aren’t supposed to make rules but just apply them. … A law clerk drafts an opinion, scrupulously bluebooked; the judge hardly notices (the citation form is invisible. How many judges are even aware of such Bluebook ukases as “in law review footnotes, a short form for a case may be used if it clearly identifies a case that (1) is already cited in the same footnote or (2) is cited (in either full or short form, including ‘Id.’ ) in one of the preceeding five footnotes. Otherwise full citation is required.” This reads like parody, but was not intended to be one. The Bluebook contains more than 150 pages of such “rules.”

Posner notes that Henry Friendly, as a member of the Harvard Law Review, created the first version in 1926. Asked many later what he thought of subsequent longer editions, he replied that law reviews should do with them what the ancient Greeks had done with unwanted infants. There’s a barbed footnote:

I do not know whether, without revenue from sales of the Bluebook, such perks of Harvard Law Review editors as monthly open-bar parties at local restaurants, twice-weekly deliveries to the Gannett House (the review’s premises) of food and snacks via Peapod, daily deliveries of fresh bagels, the television room with a Nintendo Wii, an annual “fall ball” at the New England Aquarium, and a spring banquet at the Harvard Club, would still be possible.

He concludes:

The Bluebook is an absurdity, but it endures, in fact thrives, impervious to criticism and ridicule. The judiciary navigates the sea of modernity, slowed, thrown off course, by the barnacles of legal formalism (semantic escapes from reality, impoverished sense of context, fear of math and science, insensitivity to language and culture, mangling of history, superfluous footnotes, verbosity, excessive quotation, reader-unfriendly prose, exaggeration, bluster, obsession with citation form)– an accumulation of many centuries, yet constantly augmented. There is little desire to give the hull a good scraping. There is fear the naked hull would be unsightly, even unseaworthy. The fear is overblown. A week after all copies of the Bluebook were burned, their absence would not be noted.

 

13 comments to Having said goodbye to the Bluebook, Judge Posner tosses it in the trash bin and sets the bin afire

  • Posner seems to think the only options are fundamentalism and atheism. I lean toward accepting the BB as guidelines, while discarding anything barbarous it commands.

    I do think the legal profession should move to a free source of citation rules & cease transferring wealth from 1Ls to Harvard.

  • NMC

    From the standpoint of a lawyer talking to courts, you have no choice. If the law clerks are the usual sort of OCD law journal folk, your options are to conform to the Bluebook, creating what Posner calls “invisible” citations, or risk having the law clerks read the brief and say, because some arcane useless rule was not followed, “this bozo doesn’t know how to cite a case.”

    But the point Posner is making about abbreviations is absolutely right, and that’s the area the OCD law journal assholes rein supreme.

    When I was clerking for a federal judge in Alabama, I realized that my fellow clerk, who’d been editor of the law journal at Cumberland (Cumberland? Fucking Cumberland?) would not read a draft memo for me and comment on its substance unless it had been bluebooked within an inch of its life. I later had a similar experience with a fellow lawyer in my firm, who was very bright but could not get past his law journal experience.

    OTOH, dealing with my father, for whom the bluebook froze in 1957 when he was on law journal, and another lawyer in the firm who would not even attempt to get close to blueebook form made me think there was a good goal in uniformity.

    The upshot: Even though the Bluebook is in a large sense an enemy of clarity and good citation, for the reasons Posner explains, as a practicing lawyer I follow it because I don’t want to place a kick-me sign on my back. If I were a judge, I would instruct my law clerks to exactly follow his inclination to say, “Fuck the abbreviations.”

  • “Communications” is now “Commc’ns” which is not only ugly but stupid. I refuse to use it. I hope my briefs read smart enough that no one thinks their author was too dumb to read the BB.

    But yeah, if everyone else presented to the king wears yellow pantaloons then probably one should conform.

    … Bought book on your rec & have begun btw.

  • Ben

    This makes me almost curious: what does hizzoner propose in lieu of the Blue Book? Turabian Style Manual? Chicago Style Manual? What?

  • Justin

    Exclusively practicing criminal law has its benefits, I suppose. I very rarely have to consult the BB for the “proper” abbreviations. (Joe Blow v. State over and over). Of course, there are times when I venture beyond the realm of criminal law to make an argument. That being said, I couldn’t be happier that I’ve never been faced with the dilemma of whether to use something like “Commc’ns.”

  • Ben, Posner uses no manual; he follows the most obvious abbreviations, and for the rest either wings it or doesn’t abbreviate. As he points out, an abbreviation that one has to look up has made the reader’s job longer not shorter.

  • NMC

    He does insist on internal consistency, for the same reason I do: If a reader notices the difference, the reader might well wonder what the change means, and thus focus on something other than what you’d written.

  • Yes, my bottom line advice on citation is, be consistent & people will think you’re correct.

  • Blur

    There are lots of good reasons to use uniform, consistent citations and abbreviations. For example, if I want my reader to actually be able to find the Codigo Aguas (assuming it’s available on Westlaw or Lexis), I have to cite it correctly or the service may not be able to interpret the citation. Then my reader has to look it up in his bluebook before he can follow my cite. That’s not going to make him happy (if he bothers to do it at all). And presumably I’m citing the Codigo Aguas for a reason, which means it’s probably been done before and will be done again. Another useful tool — google [or any plain text search] — can be used as a poor man’s Shepard’s, but only if the citations are uniform.

    And if I’m worried my reader won’t know what C.Ag is, I’ll mention it in the text, along with a note to trust me on the translation–I guess.

    Besides, the actual bluebook is just the first twenty pages or so. The rest is specific to law reviews or is part of a large collection of illustrations and appendices. Outside of the law reviews, the bluebook isn’t as bad as people say it is.

    ‘Course, in the real world people are happy just to see pinpoint citations.

  • OTOH, Posner is at his worst in tossing off lines like, incorporation cannot be seen as compelled by the Constitution. Zombie Hugo Black will eat his brains!

  • NMC

    I can’t tell what to make of that sort of thing, Anderson, because he really doesn’t propose a coherent theory of his own. It seems obvious from the text that he thinks the Constitution must evolve to meet current needs, and thinks any contrary view insane. I know he is saying incorporation makes no sense if one is an originalist, and that incorporation applied to the Second Amendment is nonsense to nth degree given the text of that amendment, but am unclear what he would say about it in other contexts.

    I would like to understand how he sees the judge’s task as varying between interpreting recent statute and constitution.

    The book is at its best as memoir and then breaking down problems he sees with other judge’s approach. It’s good in its recommendations for legal writers. It is not particularly good in explaining Posner’s version of realism. Does he do that anywhere else?

    I’d like to ask (here and with other judges) for an explanation of a reading of two provisions: First, 42 USC 1988, which states a court may award attorneys fees to a “prevailing party,” but has been uniformly interpreted exactly how Congress intended it (according to the legislative history), awarding fees to a prevailing defendant only when the suit was filed in bad faith. Second, how they justify the standard view of the Eleventh Amendment, which prohibits suits by a citizen of one state against another state being filed in federal court.

    Of course, being on a circuit court, Judge Posner does not have to come up with a sensible reading of the 11th Amendment because the Supreme Court has clearly articulated a nonsensical reading Posner is bound to follow.

    Interestingly, both of these oddly-interpreted enactments were intended to overrule specific US Supreme Court cases…

  • Given the sheer number of the man’s books, I’m sure there’s an explanation of his theory, or anti-theory, somewhere. But, vita brevis.

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