Strung out: legal citation, The Bluebook, and the anxiety of authority.

• Author: Bacchus, Michael

INTRODUCTION

At the end of the school year, law schools across the country hold competitions for positions on law journals, and the University of Pennsylvania Law School is no different. Though colloquially known as the "writing competition," Penn Law's competition requires students primarily to rewrite footnotes and citations from an apocryphal law review article to conform to the dictates of The Bluebook. (1) This may make sense, as the University of Pennsylvania Law Review is one of the four entities (with the Columbia Law Review, the Harvard Law Review, and The Yale Law Journal) that compile The Bluebook, but it is clear that even those schools that have nothing to do with the creation of the "Uniform System of Citation" often rely heavily on the fascinating and frustrating intricacies of The Bluebook's legal citation rules when testing students for placement on the editorial staffs of their legal journals. (2) For many, this selection process is their first exposure to an anxiety over citation and authority. The familiarity bred by that prolonged and intense exposure makes The Bluebook (and its attendant anxiety) a part of their history and mythology, a foundational text upon which legal culture is built. (3)

Of course, this is no surprise. It is axiomatic that the air that eddies around law journal offices and the other spaces of legal academia is permeated with The Bluebook. Indeed, student editors of law journals spend an extraordinary amount of time yanking the articles and essays of legal academics into compliance with the dictates of The Bluebook. While it is true that some law schools and many courts do not follow The Bluebook's rules exclusively, (4) The Bluebook is still firmly entrenched in its "authoritative position," (5) particularly in the academic world. (6) Because it is a structuring text that is inescapable even in its absence, a rather impressive literature has blossomed around it, comprising book reviews, (7) diatribes, (8) satires, (9) and defenses of alternate systems of citation. (10) As a text, The Bluebook has been called "[t]he hypertrophy of law," (11) likened to The Bible, (12) Pilgrim's Progress, (13) and a complicated statute. (14) As a process, its development has been implicitly compared to the development of the common law. (15)

Most articles about The Bluebook treat it as an artifact, as an object to be evaluated. It is mocked, or critiqued, or dismissed. On occasion, however, scholars have looked behind The Bluebook, to examine accepted rules of legal citation that are codified in it. For example, in Semiotics, Analogical Legal Reasoning, and the Cf. Citation: Getting Our Signals Uncrossed, Ira P. Robbins investigates the use of a particular signal--"cf."--and the ways in which legal doctrine has turned on the interpretation of the implications of the signal itself. (16) A few articles have investigated the legal citational footnote as a phenomenon, commenting on its overuse and overextension. (17) These critiques and these analyses come from legal academia, most often from legal journals, and each of these approaches takes as its ground the idea that the rules of The Bluebook, though perhaps flawed and sometimes inefficient, are on the whole the sorts of rules by which citation should be governed. Thus, the conventional analysis tends to look at specific rules in The Bluebook and discusses their applications, their weaknesses, or their advisability. It is less common to probe and prod these rules for what they can reveal about the institution of legal citation itself. In such a project, The Bluebook becomes not so much an artifact as a code, in the semiotic sense--a system of signs that does not reflect "objective reality," but, rather, constructs a political and social grammar.

As a semiotic code, The Bluebook effectively hides ideological roots and assumptions behind a mask of necessity and naturalness. Consequently, a kind of skepticism is a foundational tenet of this Comment, which attempts, through textual analysis of The Bluebook, to reveal assumptions naturalized by the conventions of legal citation. It is not my project to suggest that these assumptions and their consequences should be exterminated or exchanged for others. (18) Rather, they can be examined for the insight that they give to legal culture and the construction of legal thought in the United States. Indeed, I suggest that the "anxieties" identified below might be a function of a legal system based in precedent and slow, deliberate accretion of legal rules. (19)

Specifically, I will examine the institution of the "string cite"--a citation sentence or clause comprising more than one signal and/or more than one authority within a signal--recognized in rule I of The Bluebook. (20) Three subdivisions of this rule codify three of The Bluebook's fundamental precepts: rule 1.2, which sets up and defines introductory signals for legal citation; rule 1.3, which prescribes the order of signals within a single footnote; and rule 1.4, which establishes a hierarchy of authorities within each signal. Ostensibly formulated to communicate efficiently and clearly the "weight" of the authorities cited, and modeled on a hierarchical system in which the "strongest" go first, the rules governing the string cite serve to uncover a tension within legal scholarship: what I call (after Harold Bloom's "anxiety of influence") (21) the "anxiety of authority."

In a Note in The Yale Law Journal, Kenji Yoshino effectively glossed Bloom's anxiety of influence:

The theory claims that all poets (writers) grapple with the anxiety that everything they write is influenced by their powerful predecessors. In order to become great, Bloom asserts, poets must break free of this influence by conducting "strong misreadings" of their predecessors--that is, by subverting the meaning of their predecessors' texts in order to make their own contributions. (22) The anxiety of authority seems, at first blush, to be the polar opposite of the anxiety of influence, for it requires not that the predecessors' influence(s) be shaken, but rather that the predecessors' work be shown to support and therefore authorize, on some level, the successor's text. However, Bloom's model necessitates that the successor situate herself in relation (even if only in counterrelation) to the predecessors' text(s), thus creating, or at least reinforcing, a tradition or genealogy. And this, too, is the project of the scholar who cites. The citing scholar embraces the comfort of authority, and authority therefore takes on added importance in her work. Spurred on by conventions of citation (such as those found in The Bluebook), authority becomes a source and a marker of anxiety. This anxiety ultimately reflects a confusion over what constitutes "authority" and "support" for a legal proposition, and inflames a debate within legal academia about the proper sphere and meaning of "expertise." Thus, this Comment identifies three specific anxieties attendant on the conventions of legal citation: the anxiety of authorities, the anxiety of relevance, and the anxiety of authoritativeness.

In tracing these anxieties, first this Comment will briefly rehearse the history of The Bluebook, focusing on certain challenges and changes as a way to identify some primary concerns of the debates over citation. The bulk of the remainder discusses rules 1.2, 1.3, and 1.4 of The Bluebook, as well as practices of legal citation not explicitly codified in the text, as a way to elucidate the aforementioned tensions within the legal academic community.

1. THE BLUEBOOK AND AUTHORITY

   The development of The Bluebook from its inception in 1926 as a twenty-six-page pamphlet for use at Harvard Law School to its current status as a 389-page manual used at the vast majority of law schools in the country has been amply documented. (23) Even so, there are some occurrences in this history that deserve mention here. In 1949, the national conference of law review editors supported The Bluebook's adoption as a national system of citation, (24) and in 1976, The Bluebook's marketing strategy, theretofore focused on the academic world, expanded to include practitioners and the courts. (25) The Fifteenth Edition, published in 1991, required for the first time that citations to books, articles, and student works include the author's full name; did away with most parallel citations to official state reporters; and revised the order of authorities within each signal (rule 1.4) so that constitutions and statutes preceded cases. (26) The first major challenge to the supremacy of The Bluebook came from The University of Chicago in 1989, with the publication of The University of Chicago Manual of Legal Citation, known as the "Maroonbook." (27) A further competitor has come onto the scene more recently with the publication of the ALWD Citation Manual. (28) Interestingly, it has been suggested that a widely maligned change in The Bluebook inspired the creation of this latest manual.

   In 1996, the Sixteenth Edition appeared, including within it momentous changes. A. Darby Dickerson, who was to become a prime mover behind, as well as an author of, the ALWD Citation Manual, explained these changes in measured language that eluded many commentators:

   The editors substantially revised rule 1.2 on introductory signals. As they noted in the Preface, "The number of signals has been reduced and the distinction between signals has been simplified." Specifically, the "contra" signal and arguably the "e.g.," signal, have been deleted. The definitions for [no signal], "see," "accord," and "but see" have been altered. The primary fallout from these changes probably will be that the number of "[no signal]" cites will decrease and the number of "see" cites will increase, because "see" must now be used to show that the cited authority "directly states or clearly supports" the proposition. (29) Because "[a]uthors use signals to...