The Bluebook is Dead. Long Live the Bluebook.
I am sure you noticed it, did you not? Judge Posner recently had the good sense to agree with us here at the Appellate Record.
You mean you didn't see it? Judge Posner just wrote an article (pdf) in which he opined (in substance) that the Bluebook and its authors are full of beans.
He may have put it a bit differently, but we at the Appellate Record have long thought so. After the break, a homily on when it is best to use improper form, and what this has to do with my head exploding.
The other day, I was curling up with some light reading and I could not decide between the latest issues of Temp. Envtl. L. & Tech. J., ILSA J. Int’l & Comp. L., Emp. Rts. & Emp. Pol’y J., and of course the ever popular AIPLA Q.J.
I'm sure you appreciate my dilemma. What? You don't?
Are you having any trouble deciphering my choices? I don't see why. Those are all approved abbreviations from the most recent update to the Bluebook, A Uniform System of Citation. If they are all uniform, then why are we having a problem with commc'n?
I'll tell you why: because uniform does not mean good. It can mean uniformly bad or uniformly confusing. As Judge Posner put it:
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 Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do they abbreviate Código de Águas “C.Ag”?). The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as The Bluebook does routinely. . . . It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”
There is one, prime directive in written communication: if something aids understanding it is good, but if it hinders understanding it is bad. This prime directive holds true even if it is against the Bluebook rules.
Sure, follow the rules nearly all the time, especially with familiar cite forms that give the readers the information they are seeking in the manner that they are used to receiving it. But slavishly following the rules, even when it interferes with commc'n, is another example of trying to make something more "legal."
As in my first post on things that make my head explode, making the brief more legal very often means making it worse.
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"COMES NOW the undersigned Table 6 of the Bluebook, and respectfully prays that the courts put it out of its misery by abolishing local rules of practice that prescribe that style guide."
Judge Posner's point really struck me --- every time a reader has to pause over an abbreviation, communication suffers. We put up with abbreviations in a citation sentence that we would never tolerate, not for a moment, in the argument text. It's as if we want the reader's eyes to gloss right over that citation looking for the nice, big, two-space landing pad marking the beginning of the next real sentence.... (Wait, is that off-topic?)
But in defense of the court rules, it is incredibly frustrating when one encounters a citation that fails of its essential purpose, such as when it points to a non-standard, difficult to locate source, or when it does not fully convey the appropriate level of authority (such as subsequent history). For all its faults, the Bluebook solves those problems well, if a little ponderously.
But Table 6 is another matter. One concern is that, by deviating from its guidance, we might violate the reader's expectations of what is correct style. (This concern is particularly acute for law clerks as readers.) Another is that by deviating into a preferable personal citation style (let's call it "the Graybook"), we would risk violating, however so technically, the Court's local rules or practice guide.
How does the Greybook deal with those issues?
Believe it or not, I wrestle with this one. There are several of those abbreviations in Table 6 that violate the Greybook, "Well that's just dumb" rule. Yet, to not follow them at all would be to risk having some unlicensed pin head who hasn't yet passed the bar discount the substance of your argument because (obviously) to not abbreviate "commc'n" means you went to an inferior law school and are not to be trusted with legal argument.
Here's the kicker:the rule actually says "Abbreviations not listed in this book should be avoided unless substantial space will be saved and the resulting abbreviation is unambiguous." Comedic on so many levels.
I guess it is the Greenbook (?) that requires the cause number and precise date when citing an unpublished Texas court of appeals' decision. I disregard that requirement, except when I can think of a good reason why the reader might want that information. It makes the citation too long and provides unimportant information.