Have you heard that Judge Richard Posner hates the Bluebook? Of course you have. It’s been all over the blawgosphere lately. But thanks to the UGA Law Library Blog, which posted a direct link to the article, I actually read it. True to form, the article is brief, articulate, and humorous. As someone who is regularly frustrated by citation practices, I could appreciate Posner’s points. Particularly interesting is the inclusion of the style sheet that Judge Posner provides to his own clerks.
By far, the best tip I got out of his article was a reference to a terrific piece by Professor Ian Gallacher: Cite Unseen: How Neutral Citation and America’s Law Schools Can Cure our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. 70 Albany Law Rev 491 (2007). Professor Gallacher argues that the current citation format fetish reinforces the West/LexisNexis caselaw duopoly:
[The] principle citation systems taught in American law schools reaffirm the primacy of case reporters published by the West Company. And therein lies what I will argue is a fatal flaw in our bibliographical practice that has the unintended consequence of restricting free and open access to the law.
I’ve already written a lengthy explanation of vendor neutral citation, so I don’t want to rehash it all here. Basically, as long as the courts require that lawyers follow the Bluebook citation system, and the Bluebook requires citation to a private reporter’s version of an opinion, the law cannot be free. A better system would entail the courts inserting paragraph numbers into their opinions and then adding a standard citation, so that any party could cite the opinion as is without having to consult a private vendor’s proprietary nomenclature.
Gallacher’s article is meticulously researched, and the footnotes might even take up more room than the substantive text. Digging around in those, I found an interesting reference to our friend Alan Sugarman’s HyperLaw site. There, he has posted some letters sent to the Judiciary back in 1997, arguing against adoption of a vendor neutral citation scheme. One of those letters is from Judge Posner. In that letter, he warns that “the numbering of paragraphs in judicial opinions would be a mistake. It would disfigure and bureaucratize the opinion writing process. . .and is quite unnecessary.” He also asks that they “question the NECESSITY of a universal citation form, as anyone with the West citation can readily locate the opinion on-line if he prefers that to the book version.” [emphasis original]
This letter was written 14 years ago before the Internet became the source for legal research. I wonder if Posner has changed his mind since? Law Librarian Blogger Joe Hodnicki raised a similar issue in his review of Posners article, writing “Well, here’s one criticism. No where does this scholar in law and economics makes the argument for vendor-neutral citation formatting.” I couldn’t agree more. I won’t claim to be a law and economics scholar, but I don’t really see the efficiency of a court giving its opinions to a third party publisher, who slaps a citation on them and inserts “page numbers” (going the way of the dinosaur now that very few people read cases in books anymore) and sells them back to the courts and the public at a premium.
Note: In solidarity with Judge Posner, this post has not been properly Bluebooked. Unless, of course, our editor Ken Chan was paying attention this morning 🙂