Legal Commentary

Richard Posner on the Bluebook

By Ilya Somin

Almost five years ago, I wrote a post arguing for the abolition of the Bluebook, the standard system of legal citation used by most law journals. As I argued there and in several subsequent posts (e.g. here), I think the Bluebook is vastly more complicated than it should be, and creates an enormous waste of time and effort. But I?m a Bluebook cheerleader compared to Judge Richard Posner, whose recent Yale Law Journal article criticizing the Bluebook was recently linked by Senior Conspirator Eugene Volokh:

Nowadays the word ?hypertrophy? is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need. An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn?t require an immense pyramid of stones above the burial place....

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Judge Posner is one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Legal Forum article on the subject. I am pleased to to follow in the footsteps of the world?s most distinguished legal scholar on this issue.

I do worry, however, that his Egyptian pyramid analogy is a bit too generous to the Bluebook. While the pyramids were excessive relative to the pharaohs? actual needs, they at least have tremendous esthetic value. By contrast, I doubt that tourists will will ever flock to see copies of the Bluebook . Indeed, rare is the person who ever opens up the Bluebook when he doesn?t absolutely have to.

Soon after my original 2006 post advocating Bluebook abolition, I wrote a follow-up explaining why perverse incentives prevent most law journal editors from moving to a better citation system. Not much has happened in the last five years to make me more optimistic. However, as President Obama once said, ?Hope is not blind optimism.... Hope is that thing inside us that insists, despite all the evidence to the contrary, that something better awaits us if we have the courage to reach for it, work for it, and fight for it.? So I, along with Judge Posner, will continue to advocate the abolition of the Bluebook. If we ever succeed, it will be an example of change we can believe in.

Full post as published by The Volokh Conspiracy on January 25, 2011 (boomark / email).