As promised in my last post, I will now explore the reasons why the Bluebook market failure persists despite its manifest flaws.
1. Most Bluebook costs are externalities.
The decision whether or not to use the Bluebook is made by law review boards, but most actual bluebooking is done by low-level journal members or by authors of articles. To be sure, the onerous nature of bluebooking probably deters some people from applying for law journal membership, but at most schools there will be more than enough applicants anyway, because of the credential benefits of being a law journal member. The demand for journal membership is relatively inelastic. Thus, board members have little incentive to take into account most of the costs of bluebooking. To be sure, board members (at least at some journals) also have to waste time on bluebooking, but they might have to spend even more time adopting and implementing a new citation system.
2. Short time horizons.
Law journal board members generally serve for only 1 year. If they choose to adopt a new citation system, they will have to bear all or most of the transition costs (choosing the system, training people to use it, informing authors and helping THEM to make the transition, etc.), but will reap only a small proportion of the benefits, most of which will accrue to their successors. Moreover, if the transition turns out to be a failure, the board members might suffer considerable reputational costs, whereas few people will blame them for continuing with longstanding status quo policies. The key point here is that law journal boards have insufficient incentive to innovate.
3. Bluebooking as hazing.
Having to learn the Bluebook increases the costs of entry to law journal membership and, at least at the margin, makes membership a more exclusive club. The harder it is to qualify for journal membership, the more rare this credential becomes and - potentially - the higher the market value of having it. People who have already paid the cost of entry to the exclusive club (i.e. - board members) have at least some incentive to keep it as exclusive as possible. The phenomenon of fraternity hazing may work in the same way. Hazing makes it more difficult to join the frat, and thus makes it a more exclusive club for the brothers. Obviously, there are limits to this process. If the hazing is truly horrendous, there will be too few applicants for the club. But bluebook hazing hasn't (yet!) reached that point.
Some people argue that the main obstacle to Bluebook abolition is the self-interest of the four journals who publish it and make a great deal of money as a result (Harvard, Yale, Columbia, and Penn). It is true that this interest exists, but it does not explain why editorial boards at other journals (who are consumers of the Bluebook rather than producers) do not junk it in favor of a simpler system.
Related Posts (on one page):
- Law Review Write-On Tips, Part 4 -- Why Be on a Law Review?
- Law Review Write-on Tips, Part 3 -- Review Your Professors' Comments on Your Written Work:
- Law Review Write-On Tips, Part 2 -- Set Up the Right Environment for the Write-On:
- The Law and Economics of the Bluebook Market Failure:
- The Case for Abolishing the Blue Book:
- Law Review Write-On Tips, Part 1 -- Read the Bluebook Several Times Before the Competition:
(1 and 2 seem to be spot-on, although I'd wonder how much reputational harm an editorial board would suffer from a failed switch: don't the short time horizons work in their favor there?)
I didn't try out for law review because I knew I wasn't anal enough to do the blue book right. I also lasted less than two years as a practicing attorney. Maybe Bluebooking is just a painful test for ADD.
I wrote onto a 2d-tier law school's journal, and participated in 3 semesters thereafter of evaluating case notes written by applicants to join the journal staff.
As I'd already noted back when I was an English T.A., it is much easier to get graders focused on widgets and semicolons than on the substantive merits of a piece of writing. Besides the supposed objectivity that's gained, there also isn't much demand on the grader.
So, notes that barely showed any higher brain function than required for Bluebooking would sail through, whereas smart writing that broke too many citation rules would be rejected.
Replacing the Bluebook with a simple system that any fool can use with 99% perfection would shake up the write-on process at my old school, and probably many others. There would have to be discussions of what good legal writing is, how to recognize it, how to choose between competing specimens, etc. Obviously this would be much harder than "uh-oh, they used 'the' in a parenthetical."
The explanation for this is very simple: transitioning from the Bluebook to any new system, even if it is "simpler," will result in greater costs than simply sticking with the Bluebook.
Let's say Second Tier Law Review decides to take your advice and abandons the Bluebook for the Maroonbook. Big reduction in workloads, right?
Nope. Because every single submission Second Tier Law Review receives will be in Bluebook format, since virtually every other journal those authors are submitting to requires Bluebook format. So, instead of fixing Bluebooking mistakes, Second Tier Law Review's editors are going to have to completely redo every single citation in every single article they publish in order to change it from Bluebook format to Maroonbook format.
Of course, Second Tier Law Review could just reject every submission that's not already in Maroonbook format -- but if it did that, authors would just not submit to Second Tier Law Review since they will have other options, or they'll submit to Second Tier Law Review anyway and not care about the rejection. The only pieces Second Tier Law Review would get that are in Maroonbook format would be solicited pieces and pieces from authors who can't get published anywhere else.
In other words, there is no incentive for any journal to abandon the Bluebook, even those that do not publish the Bluebook themselves.
Most importantly, who's to say that whatever other system that one might invent would be any better? Isn't the reason that the Bluebook was created and widely adopted presumably that it standardized citations - something that clearly is desirable? What junk do you think we would get in law review articles if professors were free to cite however they want? I speak from experience that some professors cite so carelessly that it is almost comical. As in, it would be comical if I didn't have divine what the heck source they were using down to the specific page.
Leave the Bluebook alone - it's not that bad.
So - this post and the blog linked above are wrong inasmuch as they suggest the Bluebook is a barrier for entry into the Harvard Law Review. (It might still serve as hazing for the first year editors, of course.)
Here's my post. I call it the "Critical Legal Studies Theory of the Bluebook."
1. The Bluebook is a product of an elite group of people (Yale, Harvard, Penn and Columbia -- Northeast, Ivy League, and even more elite for the fact that it's the editorial boards of the law reviews).
2. The use of the identifier "blue" is meant to signify clearly the distinction between oneself and "other." "Maroon" is clearly inferior, and "blue" has an association with "blueblood." Hence the "bluebloods" distinguish themselves from the "other," primarily by a choice of color as a signifier, and secondarily through the construction of a complex system of rules, ever-changing, knowable in full only to the "bluebloods," and with the illusion of being open to all for the low price of $20.
3. The Bluebook is a tool of oppression and exploitation. Authors exploit editors by using them as free research assistants. Editors oppress authors with their rigid rules standing between the authors and professional success. Editors oppress new members by working them to death. Journal members oppress non-journal members by snapping up all of the jobs. The Bluebook exploits other systems by asserting itself as a standard and denigrating the "other."
4. By denigrating, exploiting and oppressing the "other," the elite "bluebloods" are able to profit. See #1
5. Oppression is everywhere and cyclical. Any suggestion to the contrary is sophistry and pretense.
I don't get the problem with the Bluebook. People complain about bluebooking, but rarely cite specific examples of what they don't like. If people have a specific criticism, send it to the good people at the Harvard Law Review, and maybe they'll fix it in the next edition.
The bluebook is long. There is a reason for that - there are lots of different things to cite. If you want to cite the Zimbabwean constitution, or whatever, the Bluebook will tell you how to do it. The bluebook has grown because there is demand for bluebook rules for new types of sources - international, internet, whatever.
Why is the bluebook? Because there is inherent benefit to a consistent system of citation. It's more professional, it's easier to use while reading the articles on Lexis or Westlaw, it's easier to consult if the original source if you're doing legal research, etc.
And anyway, the bluebook makes sense. After 6 months as a law review editors, I rarely need it anymore, since i know the rules. I only use it for obscure or random sources.
Is the bluebook long? Of course. But that's how lawyers write -- we're long-winded folk. Have you ever read... a section of statutory code? Or... a contract?!? Talk about long AND usually terribly written. (For that matter, you can include 90% of legal scholarship in that category as well).
The bottom line? The bluebook has the basics, and for things that it doesn't cover, editors do what anyone else would do -- either a) run a quick Lexis/Westlaw search to see how others are citing things; or b) make it up. It's really not that bad.
(a) Rules about whether or not you italicize commas or periods. Now, I can see a hypothetical reason for this: you might want some snatch of non-italics text between the "see" and the case name, so you can tell the "see" isn't part of the case name. But really, has that ever come up in the entire history of legal writing? Other than that, is there any imaginable reason for a rule about whether or not comments get italics?
(b) Small caps. Why? Why? Why??!! Every other citation format has come up with with perfectly good ways to distinguish between, say, article titles and book titles. Only law review types would demand a function that requires at least five mouse-clicks through a bunch of menus in every major word processing program to cite a book! (Of course, it's trivial to prepare a macro to do this in MS Word, but not everyone uses MS Word or wants to.)
That'll do for now. We'll move onto garentheticals and, god help us all, signals (Why is there a difference between "see" and "see generally" and "see also" again? And can anyone provide a rigorous &principled distinction between what should carry each?) later, and possibly after several stiff drinks.
That being said, I f***ing HATE the bluebook, and think it is pointless.
Thanks!
I don't know if this would work in a Microsoft OS, but on my mac, I just select the relevant text and hit Command+Shift+K.
If this doesn't work, you can generally add new quickkeys combinations -- for me, I can do this by going through the view - toolbars -- customize -- keyboards menus, but again, it might be different on a PC.
Saved me a ton of time when I was a source &cite slave.
More generally, I really don't mind the Bluebook either. And honestly, when I'm writing to submit to a law review, it just makes sense to use it. For the really esoteric stuff, the Bluebook doesn't have guidance anyway, and the 2Ls can always fix the little details :).
For a click, right-click on the toolbar, hit customize, hit "Format", scroll down to "Small Caps" and drag it to where you want it on the toolbar.
Not guaranteed to work on Office 2000 and below.
1. Concur on the smallcaps macro. At our law review we do everything in bold = smallcaps and underline = italics, and then use a macro at the end to convert it. Very easy.
2. Italicizing commas and periods and related rules: I mean, the system makes sense. The signal itself (see, e.g. or see also) is italicized in its entirety. Things outside the signal are not italicize. Yes, if you randomly and haphazardly choose to italicize some commas and spaces and not others no one will notice. The bluebook sets out rules of how to do things in all cases, rather than giving you discretion to randommly choose whether to italicize things when no one will notice. this is a feature, not a bug.
3. See vs. See Also vs. See Generally -- they are gradations of support, from most to least supportive of the cited sentence. If you dislike having these different options, you can always use "see" and be done with it.
I still don't get why the bluebook is so roundly criticized
It seems to me that a rule that regulates behavior that "no one will notice" is by definition useless. The only point of the rule is if failure to obey it will cause someone harm.
Citation shouldn't be "everything that isn't forbidden is mandatory." It should be "provide the necessary information in a reasonably consistent format."
advice on blue book discussion: get over it. there are more important things in life.
I do not understand. Would you prefer if the Bluebook said "it's annoying, and probably unimportant, to have a consistent method of italicizing signals. Therefore, after a citation, you can italicize the space or not italicize the space - whatever you want, it's okay to be inconsistent, since no one will realistically care?"
If you would like to deviate from the Bluebook in this manner, you are free to do so. The Bluebook, however, offers a series of rules so that if you want an article to be completely consistent and polished, the Bluebook will tell you how to do so. Feature, not bug.
The abbreviations are also crazy. Saving a few letters by requiring everything be looked up in a table does no good. Its like writing in code. And why are they stuck with state abbreviations that no one else uses?
That said, I did memorize about 80 percent on the BB after the first year of law school, but I didn't feel like it did me any good other than as a technical requirement. My references were no more efficient and were less readable to a non-law audience. Law review in general was a waste of time other than a line on the resume (about 75% of the law review work was blue booking and checking references). It did make me more careful about references but at a large cost of my time.
I would disagree however with the advice to read the blue book. The only way to learn it is through practice and examples.
Fundamentally, a good system should give only basic distinguishing information in the text or footnote and one list of full references at the end. Otherwise, you are must look back and hunt for the full cite.
Under your theory, why doesn't the bluebook command fonts? "Citations to federal cases shall be in sans-serif font, state cases shall have serifs." After all, that would make it "completely consistent and polished..."
"People who have already paid the cost of entry to the exclusive club (i.e. - board members) have at least some incentive to keep it as exclusive as possible." I cannot imagine why this would be so. I think the exact opposite is true; Bluebooking makes law review less attractive to prospective members. The more good people are discouraged from taking part in law review, the less of an elite the law review is.
The problem with the Maroon book was that it innovated rather than being "Blue Book Lite" (i.e., doing away with the more obscure and time-consuming features of Blue Book while attempting to retain the Blue Book look for core things).
I sometimes think that the Blue Book was invented to teach students that full compliance with a complicated set of rules is impossible and that even a very long set of rules cannot provide for all cases or be free of interpretive difficulties.
"Some people will complain that the new “Chicago Manual” is too long. These people do not understand the nature of style. There is, if not a right way, a best way to do every single thing, down to the proverbial dotting of the “i.” Relativism is fine for the big moral questions, where we can never know for sure; but in arbitrary realms like form and usage even small doses of relativism are lethal. The “Manual” is not too long. It is not long enough. It will never be long enough. The perfect manual of style would be like the perfect map of the world: exactly coterminous with its subject, containing a rule for every word of every sentence. We would need an extra universe to accommodate it. It would be worth it."
My biggest problem with the Bluebook is the typeface conventions. Why is there still a distinction between law review articles and court documents/legal memoranda? Prior to word processors, the distinction existed because law reviews were sent to printers and printers mess around with fonts and do funky things. Regular lawyers had typewriters and they could underscore things and maybe italicize things. Today anyone can word process a document and put the darn thing in Courier, New Times Roman, or even Wingding. You can bold, italicize or put things in all uppercase.
Here is an example of the silliness in the Quick Reference pages at the front and the back of the 18th edition of the Bluebook.
Rule 15 for Books, if it is used in a law review footnote: DEBORAH L. RHODE, JUSTICE AND GENDER 56 (1989).
Rule 15 for Books, if it is used in a court document/legal memoranda: Deborah L. Rhode, Justice and Gender, 56 (1989).
Now that is something to complain about.
Sorry, but the Bluebook is outdated. All state decisions should be changed to reflect postal code abbreviations. Who really cares about spacing and italicized commas and periods?
The funny thing is that most law reviews are loaded with Bluebook mistakes that never get caught because some editors just are sloppy, or don't care. Yet somehow, SOMEHOW, the world continues to turn despite this.
And of course the REAL irony is that few people ever read 90% of the articles and notes published each year, and fewer still would EVER have a need to look up a citation. The bluebook is a solution in search of a problem.