Practice Strategies:
Legal Writing

By Bryan A. Garner

 

Set your cites on this great style debate

For most of the 20th century, a little blue book published jointly by four law reviews—at Harvard, Yale, Pennsylvania, and Columbia—reigned supreme in the field of legal citations. It was called A Uniform System of Citation through its first 14 editions. In 1991 its unofficial title became the official one: The Bluebook.

Over its many editions, the booklet evolved into a book: It became longer, more technical, and more difficult to follow. Successive editors, seemingly eager to leave their mark on the text, changed the meanings of signals such as See, See also, and See, e.g. This bred confusion and widespread dissatisfaction.

In 1989, the editors of Chicago Law Review, encouraged by Judge Richard Posner (a former University of Chicago law professor), mounted a challenge by publishing The Maroonbook. It advocated clarity as its touchstone. The idea was that there’s no “right” and “wrong” way to cite legal authority as long as readers can readily figure out how to look it up.

For example, users were encouraged to omit periods from all abbreviations, but nothing was mandatory. Writers were given discretion—loads of it. But most legal writers wanted surefooted rules more than they wanted discretion, and The Maroonbook fizzled.

Having established a virtual monopoly in the field, the Bluebook editors squandered their lead in the 1990s by fabricating some seriously flawed rules, such as these:

  • Whereas law reviews usually put citations in footnotes, brief writers must insert them in the text.
  • The abbreviation of a given word depends on whether it is used in a case name, a title, or a court reporter.
  • Underlining appears instead of italics in court documents and legal memorandums (a holdover from typewriting).

Bluebook editors have also tinkered with essential rules—such as those for using signals—making them inconsistent and unreliable. Meanwhile, in the 1991 and 1996 editions, the book became more hypertechnical than ever—and more vulnerable to attack.

Into the breach stepped Darby Dickerson, an energetic, multitalented legal-writing professor at Stetson University. First she wrote a detailed article about the 1996 edition of The Bluebook for The Scribes Journal of Legal Writing (1997), critiquing the most significant changes between the 15th and 16th editions. Then, with the support of the Association of Legal Writing Directors (ALWD), she wrote a guide with the avowed intent of ousting The Bluebook.

The ALWD Citation Manual: A Professional System of Citation differs from The Bluebook in many ways. It restates the rules of citation based on the forms actually used by practitioners and scholars. It is designed to be a teaching tool as well as a reference book. And it has eliminated many of the needless complexities and inconsistencies of The Bluebook.

For instance, in stark contrast to The Bluebook, case citation forms don’t rely on whether the case is cited in a brief, a law-review footnote, or an article’s text. Only two typefaces are used for all types of citations: italic and roman ( The Bluebook prescribes four, depending on the application). ALWD addresses topics not found in The Bluebook, such as local citation rules. All the examples are explained; they are not just used to illustrate. Most important, and most unlike The Bluebook, each new edition of ALWD is unlikely to change just for the sake of change (though naturally it will evolve).

Here are other ways in which the ALWD Citation Manual differs from The Bluebook:

  • It abandons the use of small caps altogether. (A plus.)
  • It adopts a permissive rather than a Bluebook-style mandatory rule about abbreviations in cited case names. (A minus.) At the same time, it also includes a much longer list of standard abbreviations than Table 6 of The Bluebook. (A plus.)
  • It adopts a new abbreviation style, abandoning apostrophes in contracted abbreviations (requiring, for example, Intl. instead of Int’l. This style takes some getting used to, as it flouts some longstanding rules for contracted abbreviations. (A toss-up.)
  • It allows full references as well as elided ones in citing page numbers-that is, either pp. 123–125 or pp. 123–25 are OK. (A minus). The Bluebook specifies the latter style.
  • It simplifies capitalization rules in headings by permitting caps on all prepositions, not just those longer than four letters, avoiding, for example, the unequal treatment of with and Without. (This contradicts most style manuals: a minus.)
  • Generally, it more closely conforms legal citation of books and periodicals to academic citation forms. (A big plus.) For example, it moves the volume number of books and treatises to a more logical position, after the author and title.

Many observers predicted that the ALWD Manual would go the way of The Maroonbook: into oblivion. Not so. It’s now in a second edition, and legal-writing programs across the country have adopted it. Of the 188 ABA-approved law schools, almost 100 now train first-year students to follow the ALWD Manual. That’s truly extraordinary, given that the text is only three years old.

Meanwhile, law reviews still mostly follow The Bluebook. Only some 15 follow the ALWD Manual. So a dual system may be emerging: one for legal-writing programs and another for law reviews.

But what about practicing lawyers? The Bluebook still broadly holds the field—but in name only. Few practitioners, even those who are former law-review editors, know its intricacies. And there is much officially sanctioned local variation: Texas lawyers follow The Greenbook (10th ed., Texas Law Review Association, 2003); California lawyers follow the California Style Manual (4th ed., West Group, 2002); New York lawyers follow the New York Official Reports Style Manual (aka the Tanbook) (15th ed., New York State Law Reports Bureau, 2002); and so forth.

State-by-state variations aside, the ALWD Manual probably will continue to gradually eclipse The Bluebook for several reasons. First, the disagreements between the two systems are hardly visible to the untrained eye. Second, the ALWD rules are organized more logically and laid out much more clearly. Third, ALWD doesn’t include the retrograde Bluebook rules I catalogued above. Fourth, the first crop of students trained in the ALWD system graduated in 2003, and more waves are coming. As they gain seniority in the profession, the change will gradually percolate up through the ranks.

Whether your school requires The Bluebook or the ALWD Manual—it will almost certainly require one or the other in the first year—get that one alone and learn it well. Then, in the second or third year, invest in the other one. I believe you’ll be drawn to the ALWD Manual for most purposes, but you’ll almost certainly need to know something about The Bluebook at some point early in your career. Be prepared.


Bryan A. Garner ( bagarner@att.net), president of Dallas-based LawProse Inc. ( www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary . He teaches at Southern Methodist University School of Law.


This article previously appeared in the November 2003 issue of Student Lawyer, Vol. 32, No. 3, at 10. http://www.abanet.org/lsd/stulawyer/home.html . Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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