Maine Bar Journal
Winter 2005 #1.
Citation excitement: Two recent manuals burst on the scene
Maine Bar JournalWinter 2005CITATION EXCITEMENT: TWO RECENT MANUALS BURST ON THE SCENEby Nancy A. Wanderer"Citation" and "excitement"? Who would ever think those two words could appear together in the same sentence? Yet, many in the legal world are legitimately excited about two developments in legal citation. One development is strictly local: the unveiling of the third edition of Uniform Maine Citations. The other threatens to topple the dominance of The Bluebook on the national stage: the publication of the ALWD Citation Manual, written in a reader-friendly format by a legal writing professor.
Why Should Lawyers Care About Citation Form?
Because our common law system relies almost entirely on the holdings in prior cases, proper citation is essential. Even when decisions rely on other authorities like the wording in statutes or constitutions, statements of purpose in legislative histories, or even commentary in treatises or law review articles, the reader must be able to find each source to verify its accuracy. Citations are the "shorthand" writers use to show readers that the sources they cite are sound and authoritative.(fn1)
Citation is only effective, however, if both writer and reader understand the same code. One commentator has likened citation to a separate language, with its own grammar that must be mastered before effective communication is possible.(fn2) In communicating ideas to the reader, citations take on a more significant role than merely providing an attribution to a source and telling the reader where to find it; citation can actually communicate ideas through the use of signals or explanatory parentheticals.(fn3) A citation manual, then, becomes a sort of "grammar book . . . used to teach students to communicate in the language of legal citation."(fn4)
The History of Citation
Citation is hardly a new idea. A thousand years before Duke William of Normandy conquered England in 1066, the ancient Romans were employing a citation format similar to the one lawyers use today, "using abbreviations and numbers to designate locations by descending bibliographic units."(fn5) In the sixth century, Romans cited to sections in Justinian's
Corpus Juris Civilis by number, going from larger to smaller units, much as we currently cite to statutes or treatises.(fn6) The English followed the Roman custom and adapted it to include records and reports of English cases to prevent relitigation of the same case and to promote finality.(fn7) A primary purpose of these reports was educational: to enable students and lawyers to improve their litigation skills by studying what had happened before.(fn8)
American colonists initially followed English practices.(fn9) In 1789, the first regular reports published in America appeared in Connecticut and Pennsylvania.(fn10) Although Kirby's reports for Connecticut, the first regular state report, was not commissioned by Connecticut, the legislature did buy 350 volumes, indicating its approval of the report.(fn11) In 1804, Massachusetts and other states began providing for the governor to appoint an official reporter, who was compensated, in part, by the sales of the new state reports.(fn12) Most cases were cited by the name of the reporter, not the title of the report, until the 1850s.(fn13) In 1834, the United States Supreme Court held in Wheaton v. Peters that "reporters could have no copyright in the written opinions of a court."(fn14) After that, reporters became official state officers, compensated fully by salary, and courts began to insist on citation to the official reports to boost sales.(fn15) American legislatures and courts frequently require citation to particular versions of statutes as well as official reports.(fn16) These requirements, too, seem to have originated in a desire to encourage sales of official codes and reports.(fn17)
America's First Citation Manual: The Bluebook
Citation manuals, outlining accepted practices, help to establish a uniform method of citation. Probably the first such manual, Modus Legendi Abbreviaturas in Utroque lure, was a "very popular guide to citations in civil and canon law published in many editions in the fifteenth and sixteenth centuries."(fn18) In America, however, citation manuals did not really begin to be available until the twentieth century.(fn19) Although a simple manual, consisting of nineteen short rules was published by the Nebraska Supreme Court in the 1890s, the "pioneer" citation manual, A Uniform System of Citation, was not published by the Harvard Law Review until 1926.(fn20)
Although this citation manual, later simply called The Bluebook, came to be known as the "'Bible,' the 'final arbiter,' even the 'Kama Sutra' of legal citation,"(fn21) it had humble beginnings.(fn22) The Bluebook came into being in 1926, when Erwin Griswold, then a second-year law student, had a print shop produce a twenty-six-page pamphlet dealing with footnotes for use by the Harvard Law Review editorial staff."(fn23) It appears that this manual was not widely used until the 1930s(fn24) when law journals nationwide began adopting it.(fn25) Although the first three editions of the pamphlet were used only by members of the Harvard Law Review, three more law reviews joined Harvard in editing the Fourth Edition in 1934: Columbia, Yale, and the University of Pennsylvania.(fn26) The Fourth Edition also introduced the distinctive blue cover, leading to its title.(fn27) In 1949, delegates to the first national conference of law review editors unanimously adopted The Bluebook as the national system of citation.(fn28)
Until 1976, The Bluebook was used primarily for editing scholarly articles written by professors or students for law reviews or law school classes.(fn29) With the Twelfth Edition, however, The Bluebook began to be marketed as a citation guide for practitioners and judges.(fn30) A special section of light blue pages, called "Practitioners' Notes," were included at the beginning of the book, showing typeface conventions and rule differences for court documents and legal memoranda.(fn31)
Rebellion Against The Bluebook
Although The Bluebook reigned supreme for many years, not everyone embraced it with unbridled enthusiasm. Justice Frankfurter refused to comply with Bluebook form in a 1955 article he...