Search This Blog

Wednesday, August 24, 2016

Value Judgments in the Bluebook

In the harrowing world of the legal publication process, law review editors use the arcane and intricate rules of the Bluebook to dissect, complicate, elaborate, and brighten up citations in an incomprehensible swirl of multi-colored track-changes notes. The time-pressured author will often defer to the editors' suggestions and click the "accept changes" button at an accelerating pace, hoping that a hasty tempo will bring a swift end to the confusing mire of references to various multi-decimaled rules.

But often these rules are open to interpretation. Indeed, a quick series of searches of value-laden terms, such as "significant," "relevant," and "particularly" lead to a number of rules that seem suspiciously subjective for such an intricate book of rules.

Consider Rule 5.2(c) regarding the proper conduct for quoting a source with a mistake:

Significant mistakes in the original should be followed by “[sic]” and otherwise left as they appear in the original:
  • “This list of statutes are [sic] necessarily incomplete.”
(emphasis added here, and in the rest of these quotes). It appears that they will tell us what mistakes are "significant" in the 21st edition.

Rule 10.6.2 discusses parenthetical notations on quoted sources, and the extreme lengths to which one may go in flagging and exploring citations:
When a case cited as authority itself quotes or cites another case for that point, a “quoting” or “citing” parenthetical is appropriate per rule 1.5(b). Within the parenthetical, the same rules regarding typeface, pincites, and short forms apply to the quoted or cited authority as if it were the direct source:
  • Zadvydas v. Davis, 533 U.S. 678, 719 (2001) (Kennedy, J., dissenting) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)).
Note, however, that only one level of recursion is required. Thus, if a case quotes a case, which itself quotes another case, only one level of “quoting” or “citing” parentheticals is necessary. An additional level of parenthetical information may be used if the information conveyed is particularly relevant.
This appears to be the same rule employed in the portion of Rule 10.4 which governs whether one should list a department or district of an intermediate state court:
Do not indicate the department or district in citing decisions of intermediate state courts unless that information is of particular relevance:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944).

When the department or district is of particular relevance, that information should be indicated as follows:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. N.Y. Cnty. 1944).
  • Lee v. Perez, 120 S.W.3d 463 (Tex. App. 14th 2003).
Vagueness and value judgments even dictate how the powers that be who author the Bluebook interact with the mere mortals in the legal world. From the message associated with the "Blue Tips" pages:
The editors provide authoritative guidance to reasonable questions on subjects covered by The Bluebook. The most useful answers are gathered here as Blue Tips, classified by subject. These tips are searchable and linked to theBluebook content they address. Send your questions to If our answer is useful to Bluebookers generally, it may be formulated into a new tip, below.
I was able to write this post after conducting a few searches over the course of 15 minutes or so (while also watching The Blacklist). Goodness only knows how many more value judgments the Bluebook contains, and how truly subjective the law review editing process really is.

1 comment:

  1. But how do you feel about the Oxford comma in legal writing?