Citations; manner of citation; reports.

• Jurisdiction: United States

Section 73. Citations; manner of citation; reports.—What follows immediately below must be considered in the light of any applicable court rules; some place considerable emphasis on how cases should be cited, and as to whether or when citations to the National Reporter System should be included.

(a) U. S. reports. When citing cases from the U. S. reports prior to volume 91 U. S., always cite by the name of the reporter and not by the subsequently assigned consecutive number. Thus, the citation to Marbury v. Madison is 1 Cranch 137, not 5 U. S. 137; to Luther v. Borden, 7. How. 1, not 48 U. S. 1; to Ex parte Milligan, 4 Wall. 2, not 71 U. S. 2. Citations to such cases other than by the name of the reporter alone mark the brief-writer as a legal illiterate, or, at the very least, as one not very well brought up or educated.⁷⁶

I am aware that, beginning in 1954, the law reviews introduced the thoroughly abominable system of using the numerical numbers plus a parenthetical citation to the reporter: e.g., 5 U. S. (1 Cranch) 137; 48 U. S. (7 How.) 1; 71 U. S. (4 Wall.) 2. It seems sufficient to remark that it is one of youth's inalienable privileges to be not only wrong, but stubbornly wrong to boot. No lawyer worth his salt is going to abandon the Supreme Court's own consistent usage in favor of this perverse innovation. Interestingly enough, in order to obtain for their pages a recent article by a Supreme Court Justice, the lads on one law school review were required by the author, as the price of publication in their pages, to return to the traditional citation form.⁷⁷

Moreover, notwithstanding the estimable concerns that publish the collateral sets of U. S. Supreme Court reports, there is no need to encumber a brief with parallel citations to S. Ct. or to L. ed.; the case can always be found, in any library, and in any of the other reports, with the U. S. citation alone.

In this connection, and to prove that the foregoing is not just a personal whim, it may be appropriate to quote from a letter received from a prominent member of a large metropolitan bar commenting on a chapter of this book when it first appeared in a legal periodical:

My second point is probably one with which you had nothing to do: the citation in your article and footnotes of "Sup. Ct." and "L. ed." citations along with the official citations to the United States reports. Except in the case of U. S. citations (and even there when a case has not been officially reported), I list parallel citations to all the reports, but I believe that where U. S. cases are officially reported it is burdensome, not only to the writer, but—more important—also to the reader, to give these unofficial citations in addition to the U. S. citation. The practice is not particularly helpful to the reader because the unofficial reports are keyed to the official reports on the outside label of the appropriate volume. I would like to see someone in your position of prominence strike a blow for freedom from this burdensome practice which I think is an invention of book publishers not helpful to practicing lawyers. While, as my comments earlier in the letter will perhaps indicate, I am a believer in consistency and a proper amount of symmetry in the writing and in the printing of briefs, I believe that the burden of giving and reading parallel citations to U. S. cases far outweighs any possible benefit flowing from them.

Moreover, the official advance sheets are now so nearly current that there is much less excuse than formerly for citing the collateral and unofficial reports even for recently decided cases; that may depend, however, on local library facilities. It should also be noted that the quickest service for the text of recent opinions of the Supreme Court is the U. S. Law Week, published by BNA, Incorporated, which is generally received in the mail the day after the decisions—two days before the slip opinions.

Recent and hence still unreported cases are cited by number and date of decision. E.g., "Elkins v. United States, No. 126, this Term, decided June 27, I960." Where page reference is necessary, simply say "p. 7 of slip opinion."⁷⁷ That form of citation facilitates reference, inasmuch as the slip opinions are circulated to the members of the Supreme Court, to all other Federal judges, and to the Department of Justice, which distributes them to its lawyers both in Washington and in the field. The several sets of slip opinions are constantly referred to, the unofficial advance sheets rarely if at all. If you do not have access to the slip opinions, then by all means use the U. S. Law Week citation.

(b) Federal reports. Cite as Fed., F.2d, or F. Supp., as the case may be; for at least twenty years or so it has been customary to omit the parentheses around the "2d." In the Federal Reporter itself, the parentheses dropped out beginning with 93 F. 2d, early in 1938. It is not wrong to cite the first series of the Federal Reporter as "F.," but "Fed." is preferable, because it is less apt to cause confusion in the inevitable situation where the "2d" has somehow dropped out of an "F.2d" citation.

Always add in parentheses, in order to indicate the weight of the citation, an indication of the court deciding the case...