footnote on an old document

Give Footnote Formats the Boot

When I first attended secondary school, every pupil was given a book containing information about the school. The book had a blue cover. It was my first encounter with something that everyone called the Bluebook. 

Some of this Bluebook was slightly useful, while most was just self-congratulatory fluff. But the most significant thing turned out to be at the very end. It was a list of teachers at the school. 

Pointless Bluebook

Each teacher was allocated a number from 1 to 55. As I subsequently learned, if one teacher left, then the replacement was given his predecessor’s number. And, once allocated a number, the teacher kept it while he remained at the school. So these numbers were no reflection of status or seniority. 

In fact, the only use made of these numbers turned out to be in a quiz that each new pupil was set around the end of the first term at the school. This was supposed to be a quiz to see how well we’d learned the Bluebook. In reality, it was no such thing. Instead, we were presented with a series of arithmetical questions, such as “Who do you get if you add Mr. Smith to Mr. Jones?” and “Who is Mr. Hart multiplied by Mr. Fuller?” (No real teachers were harmed in the course of these examples.) 

In other words, we were supposed to remember every single teacher’s number, perform the arithmetical task, and then translate the resultant numeral back into the appropriate teacher’s name. If there ever had been a good reason for giving each teacher a number, that had long since been forgotten. Instead, the pupils were expected to answer a series of pointless questions. 

Pointless Bluebook Take Two

I experienced Bluebook Take One when I was eleven years old. I never expected to encounter it again. But, in 2005, I moved to the United States, and found that I was expected to take note of a similarly hapless publication. 

Bluebook Take Two, which purports to tell American lawyers how to render citations to sources is, of course, compiled by students. In so far as they have a clue, they have found that they can cause an extraordinary degree of havoc and mental distress simply by arbitrarily changing the commands that their publication contains. It is all too reminiscent of my secondary school days: the reason for the stupidity of the questions relating to Bluebook Take One was precisely that the teachers let the senior pupils compile each year’s quiz. 

So, having previously suffered the pain themselves, some law students apparently wish to then inflict it on others. It’s almost like the legal profession’s equivalent of mental abuse, where the abused turns abuser. Except that, in this case, the answer truly is to ignore it completely. 

Yet the legal profession, judges, and law professors have typically been too craven to ignore the Bluebook (and the ALWD Guide, and the Maroon Book, and ... ) There are, of course, some honorable exceptions. Judge Richard Posner of the Seventh Circuit Court of Appeals has written a typically pithy denunciation of these formatting guides: 

[T]he first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook ...  

A New Formatting Guide?

Like other critics of the Bluebook, Posner feels the need to replace it with something else. So he gives his clerks a five-page guide to formatting the Posner way. 

But, if everyone did that, we already know where that approach will take us. In fact, even his own guide used to be shorter; these things tend to grow like Topsy. That’s why the ALWD is such a hopeless alternative, and has become so unwieldy that there is even another manual to explain it! 

It is also why law professors uploading putative alternative citation guides to SSRN are completely missing the point. The truth is that there is no need for any official formatting guide at all

Yes, you read that right. The law needs no official formatting manual whatsoever. 

What are Citations For?

The problem is that, like the purpose of enumerating schoolteachers in Bluebook Take One, nearly everyone has forgotten what citations are for. In fact, their sole purpose is to enable the reader to find a source easily. That’s it: nothing more, and nothing less. 

Once we remember that, it is clearly immaterial whether the writer of a document chooses to put periods after abbreviations or not. (Good style would require consistency throughout the document, but the idea that one way is right and the other wrong is simply absurd.) 

Indeed, it is equally immaterial whether abbreviations are used at all. If the writer prefers to spell out the full words “Railway” or “Company,” for example, or the full name of a law review, that can hardly be said to be making the reader’s task harder. 

In other words, the only criterion for the formatting of a citation should be whether it is readily comprehensible to the reader. 

It Does Work!

When I have previously commented along these lines to students and colleagues, the typical response has been to say that my approach would be great in an ideal world, but it could never work. They are then somewhat shocked to find that it already does work — in the very jurisdiction in which the common law originally developed. 

There is no official citation format in English law. 

So long as the formatting of citations is comprehensible and internally consistent, there is simply no problem. So CLJ in one brief on a civil law matter might refer to the Cambridge Law Journal whereas, in a criminal law matter, it might refer to the Criminal Law Journal. On the other hand, if I wished to refer to both publications within the same document, I would probably use Camb LJ and Crim LJ respectively to distinguish between them. Or I might write them out in full. So long as I do distinguish them, there is simply no reason for complaint. 

Indeed, no English lawyers (or law students) spend hours (or longer) trying to follow some arbitrary format. I know of no English lawyer who has ever lost sleep over whether a citation was correctly formatted. And yet the machinery of justice still grinds along. 

Role of Technology

In fact, the only reason for having a citation manual at all is of relatively recent creation. Now that we have sophisticated word-processors that can accomplish innumerable tasks automatically, it makes sense (at least for legal publishers) to establish formatting standards so that footnotes can be processed electronically

England again provides an example of this. In the interests of reducing costs, and led by Oxford University Press, publishers based in Oxford have come to an agreement as to how they will format footnotes so as to enable their production to be automated. This format is now known as the Oxford University Standard for Citation of Legal Authorities (OSCOLA). 

As its own blurb says, “It is widely used in law schools and by journal and book publishers in the UK and beyond.” But it is not required by the courts, because the same considerations do not apply. (Of course, individual practitioners or law firms might choose to adopt OSCOLA because it enables the automation of footnote production, but that is very different from the courts’ requiring that it be used.) 

Peculiar Elitism

Reference management software, such as Citavi and Zotero, has been making use of the OSCOLA format for some years. But the irony of the Bluebook’s formatting instructions is that they are currently such an inconsistent mess that, even after years of work, Zotero still cannot be guaranteed to format Bluebook citations accurately. 

Strangely, the fact that the Bluebook formatting instructions are hopelessly inconsistent appears to be a source of pride among those associated with it, as if enabling a computer to accomplish this task were somehow beneath the American lawyer. 

Yes, it’s so much more sensible to waste weeks’ worth of law school education and billable hours on manually checking footnote formats. After all, it’s not as if lawyers could use that time to improve the quality of the substance of the documents involved ...