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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.

 

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