Wednesday, January 26, 2011

Does anyone use the Bluebook anymore?

Judge Posner certainly doesn't. Here's the intro to his review of the 19th edition:

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.2 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. This is not to suggest that the elaboration of the pharaonic burial places was mindless; but it served cultural, religious, and political needs remote from the functional need to secure the burial place against thieves.3 Examples of hypertrophy in law abound. The staff of the U.S. Supreme Court is an example. Over the last half century it has grown in both size and quality. There are twice as many law clerks, they are more carefully selected, and they have served a year as a law clerk to a lower court judge, usually a federal court of appeals judge. And because of the creation of the “cert pool” in
which all but two of the Justices participate, the average amount of time that law clerks spend preparing cert memos for the Justices has fallen, even though the number of petitions has risen. This allows the clerks more time to work on the Court’s principal output—opinions in argued cases. Yet the number of such opinions issued by the Supreme Court has fallen by half since 1984, without any discernible increase in quality, though the current Justices are on average as competent and conscientious as their predecessors.

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. Many years ago I wrote a review of The Bluebook, then in its sixteenth edition. My review was na├»vely entitled “Goodbye to the Bluebook.”4 The Bluebook was then a grotesque 255 pages long. It is now in its nineteenth edition—which is 511 pages long.

I made a number of specific criticisms of The Bluebook in that piece, and I will not repeat them. I don’t believe that any of them have been heeded, but I am not certain, because, needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness—“The horror! The horror!”—and am tempted to end there.


South Florida Lawyers said...

Not too shabby a rant for a legal blogger.

Oh yeah, he's a federal appellate court judge.

Anonymous said...

The first paragraph of his essay is a better example of Hypertrophy. Even better than the pyramids.