The Bluebook: A Uniform System of Citation BY THE COLUMBIA LAW REVIEW, THE HARVARD LAW REVIEW, THE UNIVERSITY OF PENNSYLVANIA LAW REVIEW, AND THE YALE LAW JOURNAL CAMBRIDGE, MASS.: THE HARVARD LAW REVIEW ASSOCIATION, 19TH ED., 2010, PP. XVII, 511. $32.00 (PAPERBOUND).
Nowadays the word "hypertrophy" is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need. (2) An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn't require an immense pyramid of stones above the burial place. This is not to suggest that the elaboration of the pharaonic burial places was mindless; but it served cultural, religious, and political needs remote from the functional need to secure the burial place against thieves. (3)
Examples of hypertrophy in law abound. The staff of the U.S. Supreme Court is an example. Over the last half century it has grown in both size and quality. There are twice as many law clerks, they are more carefully selected, and they have served a year as a law clerk to a lower court judge, usually a federal court of appeals judge. And because of the creation of the "cert pool" in which all but two of the Justices participate, the average amount of time that law clerks spend preparing cert memos for the Justices has fallen, even though the number of petitions has risen. This allows the clerks more time to work on the Court's principal output--opinions in argued cases. Yet the number of such opinions issued by the Supreme Court has fallen by half since 1984, without any discernible increase in quality, though the current Justices are on average as competent and conscientious as their predecessors.
The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.
Many years ago I wrote a review of The Bluebook, then in its sixteenth edition. My review was naively entitled "Goodbye to the Bluebook.'' (4) The Bluebook was then a grotesque 255 pages long. It is now in its nineteenth edition--which is 511 pages long.
I made a number of specific criticisms of The Bluebook in that piece, and I will not repeat them. I don't believe that any of them have been heeded, but I am not certain, because, needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one's toes in a pail of freezing water. I am put in mind of Mr. Kurtz's dying words in Heart of Darkness--"The horror! The horror!"--and am tempted to end there.
A system of citation forms has basically two functions: to provide enough information about a reference to give the reader a general idea of its significance and whether it's worth looking up, and to enable the reader to find the reference if he decides that he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such a system: "to spare the writer or editor from having to think about citation form," "to economize on space and the reader's time," "to provide information to the reader," and "to minimize distraction." (5) There is some tension among them but not a great deal, and they are easily implemented and are disserved by a 511page tome. Most citations in a law review article, treatise, brief, or judicial opinion are to cases, statutes, treatises, and law review articles, and the format for these citations is familiar to every law student after a month or so of law school. There are esoteric sources, such as administrative decisions and regulations, but the agencies caption their various promulgations in a way that makes it obvious how to cite them analogously to judicial decisions and to statutes.
Notice that my guiding principles do not include "standardization'' (6) or, the equivalent, "uniformity." Consistent application of even a very short citation manual will achieve an adequate level of internal consistency. Advocates of uniformity or standardization have a larger ambition--that all legal citations shall be uniform--in short, that there shall be a single system of legal citations. The Bluebook's subtitle--"A Uniform System of Citation"--is a bid for monopoly.
But why is a single system of legal citations more desirable than uniform typeface, margins, and paper thickness for all documents of the same general character, such as novels? Within the same document, uniformity is desirable because without it readers will puzzle over whether the differences are accidents or have some intended significance. But across documents, slight differences in citation form are untroublesome, though "slight" is an important qualification: differences large enough to make the reader pause to translate from a more familiar to a less familiar form impede easy reading. The basic legal citation convention of placing volume number before the name of a statute, case, or article and page number directly after it is deservedly uniform, and likewise the abbreviations of the federal and state case reporters and of West's regional reporters. Efforts to impose uniformity beyond the basic conventions encounter rapidly diminishing returns well illustrated by The Bluebook's obsession with abbreviations. An example that I have picked literally at random is "C.Ag." What does "C.Ag." stand for? Why, of course, the Codigo de Aguas of Brazil. Now suppose one had occasion to cite the Codigo de Aguas. Why would one want to...