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.

Author:Gallacher, Ian
 
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  1. INTRODUCTION

    There can be fewer subjects less inviting on their face than a discussion of legal bibliographical practice. Citation itself is neither scholarship nor analysis but is the mere act of recording a supporting source's location; (1) the quintessence of form with no intrinsic substance at all. It is the recorded source that matters, one would think, not its citation.

    And yet citation plays a much more important role in the American legal system (2) than this modest description might lead one to believe. (3) Competence in legal citation is expected of the most junior attorneys, (4) and an ability to generate accurate citations is viewed as a proxy for a lawyer's attention to detail. (5) Some argue that correct citation "adds to the credibility of the author" (6) and that "[a]ttention to citation form ... will improve the reader's sense of reliability, credibility, and integrity when evaluating the worth of the document and the writer's professionalism." (7) Others note that "in our legal culture, attention to detail, even in citation form, is a sign of excellence." (8)

    Courts have an ambivalent relationship with legal citation. On the one hand, more than a quarter of judges polled in a recent survey identified citation errors as a common problem in legal writing. (9) Many of those judges indicated that the absence of citation mistakes is one of the most important formatting elements in documents they review. (10) Judges are critical of practitioners (11) for not following proper citation form (12) and are willing to impose citation requirements for documents filed in their courts, (13) and many are unwilling to have citation requirements imposed on them, citing an invasion of judicial independence (14) or administrative inconvenience. (15)

    But on the other hand, judges might be more tolerant about new citation formats than the data suggest. Two studies by Robert Berring and Kathleen Vanden Heuvel found that courts were more relaxed about allowing new citation formats than the researchers had anticipated, "requiring only that the citing party provide a copy of the printout to all parties." (16)

    Orthodox legal citation has perhaps its most powerful effect on law students. Legal citation is typically taught to first-year law students by their legal writing teachers (17) and can take up a considerable part of the legal writing curriculum. (18) Even where class time is not taken up by citation study, products such as the Interactive Citation Workstation, published by LexisNexis and available online as part of a law student's subscription to the LexisNexis Total Research System, can occupy a considerable amount of time for a first-year law student. (19) And this is time obtained at a cost. Robert Berring has observed that The Bluebook, (20) for many years the only legal citation manual and still self-styled as "the definitive style guide for legal citation in the United States," (21) "has inflicted more pain on more law students than any other publication in legal history." (22)

    But the pain involved in learning how to cite legal information correctly (23) has its perceived rewards. Mastery of legal citation is, for many students, the passport to membership in the elite world of law reviews. (24) And because participation in a law review or journal during law school is often thought of as a stepping-stone to an employment offer from a desirable legal employer after graduation from law school, (25) the pressure to become a member of law review is intense. (26)

    Legal citation also plays a significant role in the institutional battle over the status and power of legal research and writing teachers. Scholars have used revolutionary rhetoric to describe the significance of the Association of Legal Writing Director's decision to offer an alternative to The Bluebook, (27) and the conflict between, on the one hand, doctrinal (28) faculty and legal writing faculty and, on the other hand, legal writing faculty and students, has been explored in the scholarly literature. (29) The importance of citation to legal writing teachers can be seen by the rhetorical choice to include "professional" in the ALWD Manual's subtitle (30) in order to distinguish it from The Bluebook's use of "uniform;" (31) the inherent messages of competence and ownership of the citation process coiled into the word choice demonstrate that legal writing teachers consider themselves to be the experts in the legal citation field.

    For many groups in the legal community then, legal bibliography has assumed an importance that seems out of proportion to its narrowly-defined function as a tool to describe the nature and location of source material. In fact, if it is possible to see the American legal system in quasi-religious terms, with lawyers as its priests, (32) then The Bluebook, which is sometimes referred to as the "Bible" of legal citation (33) can be seen as the principle text of a cult-within-a-cult, with its own clearly defined stages of indoctrination, (34) doctrinal schisms, (35) heretics, (36) and even, possibly, martyrs, both figurative (37) and literal. (38)

    Perhaps, though, our contemporary devotion to citation orthodoxy is an atavistic reversion to more pagan beliefs. Penelope Pether has spoken of the "fetishization" of citation in this country (39) and she might be on the right track. A fetish is, after all, "an inanimate object reverenced as having magical powers " (40) and many law students and lawyers certainly ascribe at least quasi-magical powers to legal citation. (41) Law students, for example, believe that command over legal citation will bring them riches and professional success, by allowing them admittance into the elite circle of law review members that will, in turn, give them access to prestigious and well-paying legal employment. (42) Legal scholars believe that citation to their work results in an increase in their reputation and prestige. (43) Lawyers believe that judges will think them competent and credible if they use correct citation form, and judges believe that the provision of a citation transubstantiates a mere "unpublished opinion" into "the law. " (44) There is no better example of magic thinking in legal culture than this.

    In this Article, I will examine the undesirable effects of this devotion to citation form, paying particular attention to the unintended, but real, effect the present citation system has in impeding free and open access to the law. This effect, as previously noted, (45) is becoming more significant as the cost of legal information in book form rises. (46) It appears increasingly likely that, sooner rather than later, the only method of retrieving, studying, and using the common law will be through the vast commercial databases maintained by West and LexisNexis.

    This Article will review the history of legal citation, discuss how citation rules affect our ability to cite to court opinions, and scrutinize some proposed alternatives to present citation practices and the reasons those alternatives have not, as yet, become standard. I will not be engaging in a comparative critique of the ALWD Manual and The Bluebook; that discussion has been conducted elsewhere, with the balance of the debate favoring the ALWD Manual. (47) Nor will I criticize The Bluebook's tendency to change the way it requires authors to use signals such as See or Cf. That issue has also been engaged by other scholars (48) and, while thought-provoking, is tangential to my purpose here.

    In this Article, I will conclude that the American legal system's present citation practices have the real, if unintended, consequence of solidifying two for-profit companies' preeminent positions as the provider of American legal information, and that America's law schools should act to correct this situation and make the law freely available to all.

  2. WHY OPEN ACCESS TO THE LAW IS IMPORTANT

    Before we begin to discuss how open access to the law should be accomplished, however, we should first consider whether this is a desirable result. Providing open access to the law might be the legal equivalent of opening Pandora's box--permitting indiscriminate use that might, in some cases, cause more harm than good.

    It should be clear at the outset that we have, at present, relatively open access to the law for all who are interested in reading and using it. In 1995, Robert Berring argued that "the United States has the world's best legal information system.... [I]t is possible for any literate, English-speaking person to walk into a local library, perhaps one that specializes in law, but perhaps not, and find federal and state court cases, statutes, and administrative law." (49)

    The situation was likely never as rosy as that portrayed by Berring, (50) and there can be no doubt that the situation is worse now than it was when Berring wrote his article. (51) Nonetheless, for many citizens some means of accessing the law still exists. My concern here is the manner in which increased reliance on digital access to, and the storage of, legal information will restrict that access, (52) and how the Internet can help make the law available to everyone.

    Of course, access alone is not enough for non-lawyers seeking to read and understand court decisions. Legal information is undeniably complicated; it is difficult to find, difficult to interpret, and difficult to contextualize. Many books have been written explaining how lawyers go about the process of finding the law relevant to a particular legal issue; (53) but even before lawyers (and law students) can go through the mechanical steps to find case law articulating the rules that will help them to predict a court's future decisions or to help influence that court's decision, they must first understand what the legal issues are. This process is at the heart of why people go to law school and is therefore at the heart of what makes a lawyer. It is this process that, in the famous words of the fictitious Professor Kingsfield,...

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