True Blue

Article excerpt

Constitutional Commentary's decision to abandon The Chicago Manual of Legal Citation in favor of The Bluebook: A Uniform System of Citation should not be construed as a wholesale endorsement of the Bluebook. The editors of Constitutional Commentary feel no obligation to defer to the law reviews at Harvard, Yale, Columbia, and Penn on any subject, least of all on questions of legal citation. For the convenience of our authors, we have chosen to identify specific Bluebook rules that we will ignore, modify, or clarify. In the spirit of norm entrepreneurship, we invite other journals to adopt any of our rules. Acknowledgement is appreciated but not necessary.

First, a few general principles. All rules of legal citation, including those outlined here, may be suspended when common sense so dictates. Where Bluebook rules have proved undesirable, unworkable, or ugly in the experience of Constitutional Commentary's editors, they will be broken without hesitation or regret. The supplemental rules outlined here are intended to minimize opportunities for editorial mischief. Discretion in the application of these rules and of the Bluebook shall favor our authors. Whenever possible, we will endeavor to err in favor of more information rather than less. This presumption favoring inclusion affects, at a minimum, abbreviations, names of authors, dates, and the subsequent histories of judicial decisions.

Herewith exceptions to and modifications of specific Bluebook rules. All rule and page numbers refer to the seventeenth edition of the Bluebook, published in 2000. (1)

Rule 1.3 states that "it is common to include a short parenthetical explanation of a particular authority after the citation to the authority if it will help the reader understand how the source supports or relates to the author's assertion" (p. 5). This admonition is not an inexorable command. "Common" does not mean "mandatory." When a parenthetical is not helpful, or at least when the effort needed to write a parenthetical is greater than any benefit that would be realized, the author need not provide a parenthetical.

Apropos of parentheticals, Rule 1.5 prescribes rules on their design (p. 28). Misled by earlier editions of the Bluebook, some student-edited law reviews have developed a horrid practice of omitting definite and indefinite articles from parentheticals as though they were telegraphs or newspaper headlines. Some clarification is therefore in order. Parentheticals should use definite and indefinite articles as in ordinary English sentences. The examples provided in Rule 1.5 support this clarification. Moreover, the rule explicitly provides that "[e]xplanatory parenthetical phrases begin with a present participle and should not begin with a capital letter" (p. 23). Expressio unius est exclusio alterius: this provision exhausts the Bluebook's departure from the rules of English for parentheticals, and all other conventions of the language therefore apply. "The," "a," and "an" are valid words and should assume their rightful places within parentheticals.

Rule 1.2 describes introductory signals used in citation sentences and clauses (pp. 22-24). The Bluebook's line between [no signal] and see has proved unworkable in many circumstances. There is no coherent distinction between "directly stat[ing]" a proposition and "clearly support[ing]" a proposition (p. 22). The Bluebook's attempted clarification--that "there is an inferential step between [an] authority cited" with the signal see "and the proposition it supports"--is less than fully helpful (p. 28). Generally speaking, Constitutional Commentary will use [no signal] when an authority is quoted or is merely being identified. In all other circumstances, we will use the signal see. There is no reason to insert parentheticals systematically after any authority introduced by the signal see.

E.g. is not so much a signal as it is a signal modifier (p. 22). It may be combined with any signal, including [no signal]. …