It's Not The Bluebook, It's The Law Review Editors

Ilya Somin over at The Volokh Conspiracy shares a form email from the editors of the Bluebook soliciting advice for their latest update (the Bluebook is the main citation guide used in the legal world). Professor Somin's advice is to abolish the Bluebook. Law professor Daniel Solove offers some less drastic suggestions for reform. Both Somin and Solove are clearly frustrated with the Bluebook.

To be sure, the Bluebook has countless terrible and/or needless rules, and desperately needs reforming. But when it comes to law review articles, the problem isn't the Bluebook, it's that student editors on law review are the ones who apply the rules in the Bluebook. I was an articles editor on the law review when I was in law school, so I have some first-hand experience.

Solove couldn't have picked two better examples when he noted that the two worst rules in the Bluebook are: (1) the rule dealing with parentheticals; and (2) the rule dealing with when a footnote is required.

The Bluebook doesn't actually require that a parenthetical containing descriptive text follow every citation, but that's essentially the way law review editors interpret the rule. I can't tell you how many arguments I had with other editors about this point. When I sent an article I had edited to the Editor-in-Chief and Executive Editor for the final review, they sent it back every single time demanding a parenthetical after every citation with a signal (see, cf., see also, etc.). They saw it as a hard-and-fast rule: every citation with a signal had to have a parenthetical, regardless of whether it was actually necessary within the context of the article. I would point out to them that the Bluebook allows for some discretion in using parentheticals, and they would reply, "this is the way we do things." I would tell them that adding more parentheticals would actually detract from the quality of the article, and they would reply, "this is the way we do things."

I had similarly surreal arguments about which propositions needed footnotes. As Professor Solove noted, "law review editors want footnotes for nearly every proposition in the article." One time the Editor-in-Chief actually made me insert a footnote to support the proposition that the founding fathers signed the Declaration of Independence in 1776. If an author had written that 2 + 2 = 4, the editors probably would have required a footnote with a citation to a math textbook. I kid you not. This was at a top 10 law school.

The problem is that student editors aren't capable of properly editing law reviews. They're not familiar enough with law review articles to determine which citations really need parentheticals and which don't. For the vast majority of students on law review, their first encounter with law review-style articles is the write-on competition. It's not surprising, then, that they shy away from exercising any discretion in editing law professors' articles. They cling to inflexible rules because they don't know what they're doing.

Abolishing the Bluebook won't solve the problem. Law review editors will just find another source to give them hard-and-fast rules. If you want to improve the publication process, make law reviews faculty-edited.