Henry at Crooked Timber has a post called The Political Economy of Bibliographies in which he asks the sensible question: why do social science publications have different house styles for citations?
It’s a good question, but I’m going to focus on something else he says, because it gives me the opportunity to do something unusual – make a radical suggestion.
[L]awyers likely do have good reason to have those long confusing footnotes bristling with references.
No, they don’t.
They are just participating in bad habits of misdirected scholarship.
The problem is an artifact of overwrought legal scholarship where breadth of research materials replaces depth of cogent analysis. I blame authors’ overactive sense of precedent, and student law review editors who are forced to ignore poor writing skills. The result: papers devoting more page space to citations than to the authors’ own ideas.
Perhaps this could be changed by an annual award for the law review article with the fewest footnotes?
While it can be useful to a researcher when an article they read has a citation for every statement, that’s only the case if the notes are of good quality. Most are not.
Footnotes tend fall into five groups:
- Trigger citations, which appear early in the paper and link readers to essential texts that have provoked the article.
- Plagiarism avoidance, identifying the origin of quoted and paraphrased material.
- Exploratory notes, where the author has license to make tangential comments on the topic or literature.
- Padding pointers to sentences written by someone else saying exactly the same thing, usually in no greater depth than that of the citing paper. This may be an over-cautious defense against plagiarism, in which case their prominence tells me legal scholars are mostly recycling other academics’ ideas, stringing together statements that may as well be cut and pasted from journals and reports.
The first and second are essential, the third is disposable, and the last is noxious clutter.
In a different context, judges have good reason to not like the footnotes that appear in lawyers’ facta. The lawyers cite things that don’t count as usable precedent, or reference well-known cases that are easy to find.
The formatting of legal citation is similarly distraught, and that’s where my radical suggestion comes in.
Journals should get rid of uniform citation style guides, apply a Principle of Parsimonious Citation, and use open access to get the job done.
Whew. That wasn’t easy to say, and goes against deeply entrenched editorial instincts. But it comes from realizations that don’t beggar common sense, and is an argument to trim citations to their bare essentials:
- Just give useful information. Readers just need a simple set of information that allows them to find a reference. Anything else is noise.
- Completeness is overrated. Thanks to search technologies, we usually don’t need full citations to track down a reference. Even the simplest citations return unambiguous search results. When a Google search won’t get you the information via the journal’s home page, commercial databases will serve it up without much fuss even if you only know the title of the article. So, in most instances all you need is a variant of: [Author's name; Title of document; Date of authorship]. Toss in a localizer to identify paragraph, page, or section and the reader has everything they need.
- Open access does it better. It gets rid of the need for uniform styles, and makes documents easier to find with less information. It also propels online referencing: why bother with ordering and punctuating defunct volume and issue numbers when a digital object identifier (DOI) will do the job?
- Citations demand no syntax. Formats are mostly arbitrary. So as long as citations are consistently styled within a document and don’t confuse the reader, don’t fuss over it.
I don’t expect people to agree with this, especially in a traditional field like the law. Instead, I’d expect complaints to the effect that courts need authoritative citation styles, and that this sets the default standard for legal scholarship.
Not so. Even if there is a trickle-down effect, courts using neutral citations don’t need authoritative style guides to locate publications. Judge’s law clerks can probably find information using standard research tools better than anyone else.
Worries about the ‘officiality’ of the law are just public relations laden with bad metaphysics. It ignores how citations function: footnotes are just about flagging sources of interest and finding them, nothing more.
If we are going to use a uniform standard of citation – either to avoid styles that don’t look pretty, or to guide authors who can’t be trusted to think about this for themselves – it should do four things:
- Use neutral citations that identify cases without referencing print reporters.
- Be short and intuitive, because there is no reason it should take 208 pages and multiple lectures in a first year law course to master this.
- Be fluid, to accommodate a wide variety of documents – and the legacy of proprietary or hard-to-find print volumes.
- Be open access, because there is no reason to lock citation recommendations within a book.
While we are at it, why not use the styleguide to improve the habits of legal scholars? Prior to press, tag footnotes with metadata along the lines of ‘Essential reading’, ‘See, no plagiarism’, or ‘Just padding’.
- Peter Martin. Introduction to Basic Legal Citation.
- Melissa H. Weresh 2001 The ALWD Citation Manual: A Coup de Grace.
- Carol M. Bast & Susan Harrell. (2000) Has the Bluebook Met Its Match? The ALWD Citation Manual.
- Ian Gallacher. Cite Unseen: How Neutral Citation and America’s Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. [ed: There's a title to strangle you.]
- Michael Bacchus. Strung out: Legal Citation, “The Bluebook,” and the Anxiety of Authority. University of Pennsylvania Law Review (2002)