The death of contra.

• Author: Grantmore, Gil
• Position: The Bluebook: A Uniform System of Citation, 16th edition change

Lemon isn't dead,(1) but contra is. Though the Supreme Court has spared Roe v. Wade,(2) the Bluebook has aborted the reign of the harshest citation signal of all. A chill wind blows.(3)

Once upon a time, truth was truth, and we had a way to signal what wasn't. Until 1996, the Bluebook directed courts, lawyers, and law review editors to use contra when "[c]ited authority directly states the contrary of the proposition."(4) "`Contra' [was] used where `[no signal]' would be used for support."(5) But contra was already mortally stricken. By the time the fifteenth edition of the Bluebook rolled around, "accord and contra ha[d] fallen into nearly complete disuse at Harvard."(6) Evidently secure in the belief that most people "have no idea that the [Bluebook's] signals change from edition to edition to edition,"(7) the sixteenth edition delivered the coup de grace. The Bluebook no longer lists contra as an available introductory signal.(8) Today the strongest available negative signal is but see.

The death of contra grew from the law's psychological need for superficially clear, mechanically enforceable rules.(9) The diagnosis of this impulse is as old as the Bluebook: Even as law review editors from four Ivy League schools were forging the cartel that would eventually publish the Bluebook,(10) Jerome Frank was performing the definitive analysis of the legal mind.(11) Frank "equated the persistence of a mythical image of law as a body of finite rules ... to the infant's search for an omniscient father-figure."(12)

At least in theory, the Bluebook satisfies this quasi-Freudian yearning. "[S]poon-fed scriveners" have long relied on the Bluebook to tell them, for example, whether to underline the period in "id." in typewritten legal documents.(13) Student-edited law reviews rely heavily on tests of Bluebook skills in selecting new staff members, not because such tests measure anything meaningful, but largely because such tests are easy to grade. Those editors eventually adopt absurd rules--such as a requirement that all see also, cf., compare ... with, and see generally citations be accompanied with a parenthetical--simply to avoid making discretionary judgments of any sort.

But the Bluebook's rules on citation signals undermined the psychological satisfaction that the mere idea of an inflexible Bluebook was supposed to deliver. The fifteenth edition directed users to use [no signal] when "[c]ited authority ... clearly states [a] proposition" of law.(14) At the same time, the Bluebook prescribed the signal see for "[c]ited authority" that "clearly supports [a] proposition."(15) The distinction between "stating" and merely "supporting" a proposition proved "so vague that [even] Harvard, Yale, Columbia, and Penn appear[ed] unable to draw a consistent line between `[no signal]' and `see.'"(16) The sixteenth edition cured this problem by confining [no signal] to instances where a citation "identifies the source of a quotation" or "identifies an authority referred to in text."(17) This change doomed contra. One simply can't negate a quotation or the mere name of a source. Thus, in the name of eliminating a pesky degree of discretion for law review editors, the Bluebook killed contra.

The death of contra is the latest, surest sign of decadence and decline in American legal culture.(18) As the only statute-like document that many law students actually study,(19) the Bluebook is more than "the Bible of citation form"(20) or even "the Kama Sutra of legal citation."(21) It is at once "Divine Word"(22) and Divine Comedy,(23) holy writ and sex manual rolled in one.(24) (Yes, that's why they say "Make love, not law review.") Killing contra is tantamount to printing God's obituary in a pornographic...