Will the Bluebook sing the blues?

There's good news. And there's bad news.

Which is the good and which the bad all depends on your perspective. So I'll give my own.

The good news is this: A year early, A Uniform System of Citation, a.k.a. the Bluebook, came out in a new 17th edition. Ordinarily, the Bluebook editors bless us with a new edition every five years, and the 17th wasn't due until 2001. But suddenly out of the blue, so to speak, we get the new edition.

Why did the Bluebook editors--the editors of the law reviews at Harvard, Yale, Columbia, and the University of Pennsylvania--jump the gun? The answer lies, perhaps, in the bad news (hold on to your chair): We now have another competing and likely successful citation system from none other than the Association of Legal Writing Directors (ALWD), the professional association of law professors who teach legal writing in the nation's law schools. At roughly the same time the Bluebook hit the shelves, so did the ALWD Citation Manual: A Professional System of Citation.

The Bluebook editors knew about the impending publication of this competing work. This might have influenced their decision to accelerate the normal scheduling of their guide. Or perhaps the editors merely wanted to have a millennium edition. Or maybe they wanted revisions to occur in years divisible by five. Or perhaps they wanted to correct some of the mistakes made in the 16th edition. Whatever the reason, we have a new Bluebook.

Before beginning a review of the new edition, I should pause and comment on what I view (at this moment in time) as the bad news: the publication of the ALWD manual. At the outset, I must say that it does an excellent job of teaching and explaining legal citation.

It includes a section on "How Your Word Processor May Affect Citations"; has a wonderful graphical layout in a spiral-bound book with pages somewhat larger than the Bluebook's; uses two-color printing to emphasize examples and spacing; is written in a shorter and more lucid style than the Bluebook; includes an appendix to the citation rules of states that have them; and, overall, is much easier to use than the Bluebook.

Some of its rules seem silly, however, such as italicizing the comma after a case-history explanatory phrase. Who among us in the practice is likely to type: Jones v. Smith, 104 E Supp. 222 (E.D. Va. 1945), aff'd, 302 F.2d 234 (4th Cir. 1946). It just looks like a typo, and under the Bluebook system, it is a typo. But all in all, the ALWD manual solves many of the problems of the Bluebook, problems that finally made the legal writing instructors throw up their hands and say, "The heck with it. We'll produce our own system."

So if the ALWD manual does such a good job, why do I call its publication "the bad news"? Frankly, I have a mixed reaction. On the one hand, the Bluebook has been the bane of the first-year law student's existence for decades. We can all recall that first citation exercise when we were given jumbled-up citations and told to correct them "according to the Bluebook." And many competed in tryouts for law journals that included citation exercises, again, "according to the Bluebook."

Further, first printings of new editions have been riddled with errors (I found more than 50 in the first printing of the 16th edition), though I must say I found only eight in the 17th edition.

And the Bluebook kept changing the rules on us for no apparent reason. The 16th edition came up with those crazy rules on the use of signal words, requiring the "see" signal for any direct-support authority. I think that was the straw that broke the camel's back and prompted the ALWD to develop its own system.

On the other hand, the Bluebook is the uniform system of citation. Virtually all large law firms follow it and expect their new associates to know it. Five states require citation according to its rules (California, Delaware, Indiana, North Carolina, and Texas). Most of the nation's law journals follow the system. Most federal judges adhere to it in their written opinions.

So what happens now when the nation's legal writing directors move to adopt the citation manual published by their own association? What happens to the law students who learn that system and then have to spend the early parts of their legal careers learning Bluebook rules?

The number of students facing that problem will likely be quite large. Early data show that 78 of the nation's law schools (that's more than half) have adopted the ALWD manual. Some have merely urged students to buy it while at the same time requiring the purchase of the Bluebook. Three years from now, the legal profession can expect the first graduates to flood the market with little or no grounding in the Bluebook system.

Are the differences in the two systems that great? Yes. I am currently preparing a table showing the differences and so far have identified nearly 100 significant ones. So I consider the publication of the ALWD manual bad news because of the trouble I think it will cause in the legal profession. Yes, we have had and still have trouble with the Bluebook, but it is the nation's uniform system.

I have to wonder why the directors of our law schools' legal writing programs didn't try to reform the Bluebook from within. Although I favor competition, it seems to me that a monopoly is needed in this area of our practice. That monopoly has now been shaken and shaken hard. Only time will tell who wins. It'll be an interesting battle to watch.

That said, it remains my task to provide some insight into the Bluebook's 17th edition. First, full disclosure. I assisted the editors of this edition by reviewing an early draft of the work and making suggestions for change. During that review, I sought advice from the 250 attorneys in my firm on changes they thought desirable. Many of these I forwarded to the editors. Some were incorporated.

Signal change

The 16th edition radically changed the system of signal words. It eliminated "e.g." and "contra" as separate signals and required the use of "see" with any direct-support authority. That system was met with disdain in the legal profession, for few lawyers could see the logic in requiring "see" before a case citation that directly supports the stated proposition of law.

Rule 1.2 of the 17th edition reinstates the former system of signals found in the 15th and earlier editions. Now, "no signal" means what it used to mean: The cited authority directly supports the stated proposition, identifies the source of a quotation, or identifies an authority referred to in text.

The new edition also resurrects the use of "e.g." as a stand-alone signal to mean that the authority supports the proposition and that others supporting the proposition could be cited but that this would not help. Also, the new edition brings back "contra" as a signal to show the citation is to a source that supports a contrary view of the stated proposition. One would use "contra" for contrary support in the same way that "no signal" would be used to show direct support.

Citing cases

The new edition changes the rules on abbreviating words in case names. First of all, it has rewritten rule 10.2.1(c) to make it crystal clear that case names appearing in textual sentences may contain only a few abbreviated words: any widely known acronym and the following eight abbreviations: Co., Corp., Inc., Ltd., No., Bros., Ass'n, and &.

Second, and most important, when a case name appears in a stand-alone citation--for example, if it does not form part of the sentence--you should abbreviate words appearing in table 6 and geographical units according to table 11 (unless the geographical unit is a party, in which case, you do not abbreviate). Significantly, the new Bluebook changes the old system and requires abbreviating the first word of a party's name, a practice disallowed under previous editions.

Perhaps some examples will illustrate the rules on abbreviating words in case names. For a citation in text, abbreviate only acronyms and the eight words:

   Taking a similar approach, NAACP v. International Ass'n of Manufacturers,
   Inc., 444 F.2d 999 (4th Cir. 1967), ruled that consent is required.

For a stand-alone citation, abbreviate according to tables 6 and 11:

   In 1967, the Fourth Circuit took a similar approach and required a showing
   of consent. NAACP v. Int'l Ass'n of Mfrs., Inc., 444 F.2d 999 (4th Cir.
   1967).

   The Fourth Circuit requires a showing of consent, NAACP v. Int'l Ass'n of
   Mfrs., Inc., 444 F.2d 999 (4th Cir. 1967), while the Fifth Circuit does
   not, NFL v. Nat'l Mut. Pac. Org., 445 F.2d 989 (5th Cir. 1968).

A slight change also occurs in the rules governing the citation of cases in documents submitted to court. The old edition sought to prescribe a rule for citing parallel citations in these documents. Old rule P.3 required that citations to cases from the forum state must include parallel citations to official and unofficial reporters. But citations to out-of-state cases required citation only to the regional or other unofficial reporter.

The new edition essentially punts: Follow the local rules, it says in rules P.3 and 10.3.1 (which, of course, is what attorneys did under the old system anyway). Unfortunately, after saying that a writer should observe local rules, new P.3 includes an example of a parallel case citation:

   In a brief to a California state court: Amante v. State Bar, 50 Cal. 3d
   247,258, 786 P.2d 375, 381,266 Cal. Rptr. 648, 654 (1990).

But California court rule 313(c) states: "A case citation shall include the official report volume and page number and year of decision. No other citations shall be required." So much for following local rules.

In all other documents, including law reviews and legal memoranda, Bluebook rule 10.3.1(b) requires citation only to the relevant regional reporter. If the case is available as an official public domain citation, that must be provided. The previous edition also contained this rule but added that a parallel citation to the regional reporter may be provided. The new edition makes the parallel citation to the regional reporter mandatory.

Wired sources

The latest edition includes a new rule for citation to electronic media: rule 18. In general, this rule requires citation to a printed source unless the information is not available in printed form, or the printed source is hard to find, or the electronic source "will substantially improve access to the same information."

When citing to electronic sources, the writer should clearly indicate which source was used in the research. The writer indicates this by using explanatory phrases: No explanatory phrase means only the electronic source was used by the writer, "available at" before the electronic source means the printed source was used and the electronic source is provided as a parallel citation, and "at" before an Internet source means the information is available only on the Internet.

Rule 18 is divided into subsections. The first, 18.1, covers electronic databases, and its subsections discuss how to cite to different types of authority.

Rule 18.2 covers Internet citations. It, too, is subdivided into sections addressing citations to different types of authority. This section includes a complicated discussion of forms to use when citing to Uniform Resource Locators (URLs), including how to indicate paths of directories and subdirectories and how to cite changed or multiple URLs. A sample cite to a case on the Internet would look like this:

   Minnesota v. McArthur, No. C4-99-502 (Minn. Ct. App. Sept. 28, 1999),
   http://www. courts.state.mn.us/library/archive/ctapun/ 9909/502.htm.

In table 1, the U.S. jurisdictions table, at the back of the Bluebook, the editors have included addresses to the official Web sites of the 50 states. If a state has adopted rules on public domain citations, those appear in this table as well. Those states adopting public domain rules after publication of this edition will be listed on the Web at http://www.legalbluebook.com.

Capitalization of headings and titles

The new edition clarifies the rule on capitalizing words in headings and titles to works. The old rule provided that articles, conjunctions, and prepositions of four or fewer letters should not be capitalized. The problem lay in the "conjunction" rule, which provided that subordinating conjunctions like although should also not be capitalized.

In the new edition, the "four or fewer letters" rule applies both to prepositions and to conjunctions. Thus, the conjunction although is capitalized, while the conjunction if is not. Rule 8 now reads:

   In headings and titles, capitalize the initial word, the word immediately
   following a colon (if any), and all other words except articles,
   conjunctions of four or fewer letters, and prepositions of four or fewer
   letters.

The Bluebook now has a separate rule on citing the title of a law review or other periodical article. Earlier editions included no guidance on how to cite the title of a work. New rule 16.2 spells it out:

   Cite the full periodical title as it appears on the title page, but
   capitalize according to rule 8 .... Do not abbreviate words or omit
   articles in the title. Use italics.

Unfortunately, the example given includes another of those mistakes that seem to pervade the first printings of previous editions:

   Should Non-Named Shareholders Be Permitted To Appeal Adverse Judgments?

The "t" in "to" should be lowercase because it's a preposition of fewer than four letters. (Just because the "to" appears as part of the infinitive "to appeal" does not change "to" into a verb; it remains a preposition.) Indeed, the Bluebook itself correctly follows the rule on capitalization in its own heading for rule 14.3.2 entitled "Which Sources to Cite."

This rule governs the way practitioners should capitalize headings in trial and appellate briefs. Many practitioners don't follow the rule and end up inconsistently capitalizing not only within the same paper but sometimes within the same heading.

Because of space limitations, this review of the 17th edition of the Bluebook cannot possibly cover all the changes and additions to the old edition. It cannot list the typographical mistakes this reviewer has uncovered. It also cannot include a review of the ALWD manual and the differences between it and the Bluebook. We leave those topics perhaps to a future article.

C. Edward Good is counsel and writer-in-residence at the intellectual property firm of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C. He invites readers to send him e-mail at ed. [e-mail] to request a copy of the table listing the differences between the citation rules in the ALWD manual and those in the Bluebook.