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The Law and Economics of the Bluebook Market Failure:

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.

Paul Gowder (mail):
I think (3) is false because (a) the number of editors on any given journal is determined by the journal, not as any function of the number of applicants. If the bluebook became easier, they'd simply require higher scores to fill the same number of spots. Plus, as a commenter in the previous post (I forget who) noted, the bluebook probably increases journal staffs because it increases the amount of work that must get done to produce an issue.

(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?)
5.2.2006 6:47pm
TomHynes (mail):
There is a signalling value to law firms: Bluebooking proves that the student is willing to work very carefully for hours and hours on a task with very little intrinsic value and of extreme boredom. These skills are valuable to top law firms, and membership in a law review proves that the student has the skills.

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.
5.2.2006 7:07pm
Anderson (mail) (www):
Here's what may be a yet-unmentioned reason:

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."
5.2.2006 7:19pm
Ralph (mail):
All hail the Maroonbook. http://lawreview.uchicago.edu/resources/style_sheet.html
5.2.2006 7:23pm
Postchaise (mail):
The Green Bag is an excellent example against any prophets of doom. It's a fabulous journal that doesn't insist on a particular citation format--use whatever you want, as long as the cites help the reader find the source. To paraphrase someone's words about the sabbath, citations are made for people, not people for citations.
5.2.2006 7:32pm
Justin Cox (mail) (www):
As for the hazing aspect of the Blue Book exam, here is a description of Yale Law and Harvard Law's journal-entry procedures.
5.2.2006 7:33pm
Anthony Ciolli (mail) (www):

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.


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.
5.2.2006 7:41pm
Mary Katherine Day-Petrano (mail):
Interestingly, the Supreme Court of California opts out of the Bluebook in favor of its own Style Manual. So, anyone who litigates there and elsewhere has to learn both.
5.2.2006 7:44pm
Silicon Valley Jim:
Couldn't the Bluebook be replaced by a reasonably simple piece of software? I'm not going to write it, even though I develop software for a living, because I really don't want law schools, law students, or lawyers for clients, but it doesn't strike me as something terribly difficult to do. Perhaps the fact that it hasn't been turned into a software package has something to do with the hazing aspect.
5.2.2006 7:48pm
SB (www):
SVJ: I can already feed all sorts of nonsense into the Lexis "Get a Document" input, and it knows exactly what I mean. "xx fedappx xx" makes perfect sense to it, for example.
5.2.2006 9:16pm
John Castiglione (mail):
Am I the only one who doesn't hate the Bluebook with red-hot passion? First, it really isn't complicated for the sources most commonly cited (cases, articles, books, and legislation). Second, for the really arcane stuff, isn't it important that the citations include everything that one would need to efficiently locate the source? While the Bluebook might lard up certain citation forms from time to time, their citation forms all follow a rudimentary logic, and none of the forms seem entirely superfluous or unnecessary.

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.
5.2.2006 9:22pm
Guest44 (mail):
Harvard's LR competition doesn't require any Bluebooking other than the correct use of introductory signals and order of authorities within a single citation. They explicitly take knowledge of the Bluebook (other than those minor aspects) out of the competition. (The competition itself is a one part cite-checking of an article for substantive accuracy, logic, and grammar, and one part writing a mini-Note using only materials they provide.)

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.)
5.2.2006 9:25pm
Guest44 (mail):
And I agree with John C - I don't find the Bluebook irritating either, except for its Law Review typefaces and some rules of punctuation within parentheticals.
5.2.2006 9:27pm
TO:
These posts certainly put the lie to the "blogs as scholarship" suggestion.

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.
5.2.2006 9:28pm
Guest poster (mail):
(Cross post from other thread)

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.
5.2.2006 9:39pm
gobluebookgo:
Honestly -- the bluebook really isn't that difficult to learn. In the time you've spent analyzing the bluebook in a world according to Coase, you could have read the inside cover of the bluebook and got 90% of bluebooking pretty much down.

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.
5.2.2006 9:44pm
Paul Gowder (mail):
Guest Poster: specific problems? Well, lets start with two of the stupider ones pointed out by some law student's blog:

(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.
5.2.2006 10:16pm
Paul Gowder (mail):
(uh, for "comments" above, replace "commas." and "garentheticals" = "parentheticals." Thats what I get for ranting without proofreading.
5.2.2006 10:18pm
marghlar:
Paul: Actually, it's even easier to set up a quickkey stroke to do a Small-Caps in about 0.2 seconds.

That being said, I f***ing HATE the bluebook, and think it is pointless.
5.2.2006 10:45pm
Ilya Somin:
For those of you who say that there is an easy way to transition from small caps and back again in MS Word, I would be very happy to know what it is. By "easy," I mean that you can do it in 1 key stroke rather than 4 or 5.

Thanks!
5.2.2006 11:46pm
marghlar:
Prof. Somin,

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.
5.3.2006 12:30am
Ubertrout (mail) (www):
Just a comment about small caps...you can just add a button to your Word or Wordperfect toolbar to do it in one click. If you're writing in a legal format and haven't done that, you've wasted a ton of time, and the bluebook seems much more annoying.

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 :).
5.3.2006 12:30am
Ubertrout (mail) (www):
For a keystroke, you'd have to set up a macro.

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.
5.3.2006 12:34am
Joe Henchman (mail):
I'm at GW - the LRW program switched to ALWD for one year before I got here, switching back to the Bluebook for my first year. From what I heard, the decision was related to changing leadership in the LRW program, but there may have been other factors such as ones you suggest.
5.3.2006 1:18am
Ilya Somin:
Thanks to Ubertrout for solving my little Small cap problem. This doesn't eliminate the many flaws of the Bluebook, but it does make one of them less intolerable.
5.3.2006 1:30am
Longhorn:
A macro should not be necessary for things like switching text to small caps. Control-Shift-K should work for most Microsoft Word Versions. For more helpful keyboard shortcuts see here.
5.3.2006 1:37am
Ubertrout (mail) (www):
Longhorn and marghlar, thanks for the tip - useful to be proved wrong. And happy to help with the icon.
5.3.2006 2:27am
Guest poster (mail):
Addressing some of the criticisms:

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
5.3.2006 2:59am
Paul Gowder (mail):
Guest poster: how is it a feature rather than a bug to "set out rules of how to do things in all cases, rather than giv[e] you discretion to randomly choose whether to italicize things when no one will notice?"

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."
5.3.2006 10:47am
CC JJ II:
the blue book is just not that complicated, people. there are a few basic rules that cover 98% of situations. and it has an easy-to-use index for the other 2% of situations.

advice on blue book discussion: get over it. there are more important things in life.
5.3.2006 11:20am
Freder Frederson (mail):
I echo the people here who say the bluebook is not that complicated. Like most things in life, Probabably 5% of the book covers 95% of the situations you encounter. The advice to read the bluebook cover to cover (several times!) is just a monumental waste of time. It is a guide, not the goddamned bible. The world won't end if you don't italicize a comma somewhere and the bluebook implies (but never clearly states), you should—heck, in some typefaces you can't even tell if a comma is italicized see , ,. The editing process should be more concerned with catching things like whether the entire paper is plagiarized (like one of the papers I edited while on law review was).
5.3.2006 12:01pm
Guest poster (mail):
Mr. Gowder,

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.
5.3.2006 12:02pm
Closet Libertarian:
As an economist going to law school, I hated the Blue Book. I tended to use some combination of the Chicago Style or the APA. (notice that the first is a 10 page style guide in plain english) It seemed like a real waste to learn yet another style. Volokh is right on here.

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.
5.3.2006 1:01pm
Paul Gowder (mail):
Guest poster: Yes, I would prefer if it said that -- or better, if it said nothing at all on the subject. What is the utility of "completely consistent and polished?" The disutility is that poor students have to check it, and poor authors are coerced into pretending to care enough to make gestures toward complying with it. It wouldn't be so bad were it not senselessly enforced. (But any rule is a feature not a bug if it can be discarded at whim.)

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..."
5.3.2006 1:25pm
Flavio Rose (mail):
A couple of comments.

"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.
5.3.2006 4:32pm
David Lewis (mail):
I would like to bring to everyone's attention Louis Menand's observation on the 900+ page Chicago Manual of Style in his review in the New York Review of Books in 2003 (I'd give a full cite for it, except I'd have to pay to get it, so never mind). It applies fully to the Bluebook:

"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."
5.3.2006 6:37pm
David Lewis (mail):
Hah, wouldn't you know, in a piece on citation, I gave the wrong source for Menand's review. It was in the New Yorker.
5.3.2006 6:41pm
Patrick:
You've got to take into account that the Bluebook is taught to 1L's by the Legal Research &Writing faculty. This drives the law review board. If someone wants to switch over to ALWD or some other citation form, they have to get both Legal Research &Writing AND the law review on the same page.
5.3.2006 10:52pm
Patrick Charles:
I'll echo the sentiment that the Bluebook is not that complicated. Sure the 18th edition is now bloated up to an amazing 415 pages in lenth (the 1st edition in 1926 was 26 pages.) The tables take up about 190 pages and those are easy to understand (if you can't understand Table T.1 then you should consider another means of supporting yourself).

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.
5.3.2006 11:36pm
Randy R. (mail):
Can anyone tell me exactly what the signal "c.f." means? I've read the definition in the Bluebook a hundred times, and still have no idea. Apparently, it's something along the lines of 'compare from" but that makes no sense at all.

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.
5.4.2006 2:14am
Randy R. (mail):
One test of the effectiveness of the Bluebook or even the Maroon book: Can you look up any cite WITHOUT the aid of either book? If you need to have either one on hand to decipher the code, then it's a self-referential failure.
5.4.2006 2:36am
Paul Gowder (mail):
David Lewis: that's a very finely crafted piece of rhetoric that you quoted, but it's not an argument. WHY are small doses of relativism "lethal" in matters of form? Why is there a best way to dot an i? Those are wholly nonobvious propositions.
5.4.2006 9:56am
David Lewis (mail):
Um, Paul, I think Menand's intent was satirical of the kind of people who would write a 900 (or 400) page style manual (they, not Menand, care about dotting "i's") or who would take this subject seriously enough to write multiple posts about it.
5.4.2006 12:19pm
Paul Gowder (mail):
Oooh. (aaaah, internet.) See, Guest Poster is making exactly that argument! Maybe (s)he's being satirical too...
5.4.2006 2:06pm