The Bluebook: A Plot Summary

I here entreat those who have any tincture of this absurd vice, that they will not presume to come in my sight.
Lemuel Gulliver

This post closes a chapter in the tale of legal style support in Multilingual Zotero, so that the next can begin. The story began a little over five years ago, with a purpose that was quite simple, if crazily ambitious: to build a platform with automated citation support to serve researchers in any field, from any jurisdiction, handling resources in any language. Zotero and the Citation Style Language (CSL) provided a solid keel on which to build, but there was a lot of building to be done: no one had ever launched a multilingual reference manager, or explored the full complexities of legal referencing in a citation formatter. I would have to make my own mistakes, and if the project were not to have an unhappy ending, to learn from them.

There have been many transient missteps in software along the way, but the mistake that has stuck to the project like a barnacle occurred two years in, on 19 July 2011, when I opened the Terms of Use to the online version of the leading American legal citation manual, and found this:

  • You may not modify, publish, transmit, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit the information contained on the Site, in whole or in part.
  • You agree not to use or display the trademarks BLUEBOOK ONLINE, THE BLUEBOOK or THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION or any confusingly similar or dilutive words without our prior written consent.
  • You may not restrict or inhibit the functionality or use of this Site or the use of this Site by any other visitor or subscriber, including, without limitation, by means of “hacking” or defacing any portion of the Site.
  • You may not use the Site for any unlawful purpose or for any commercial purpose other than your own law practice.
  • As a subscriber to the Site, you may add Bookmarks and Annotations as needed for your own personal use and share these items with other subscribers to the Site who are members of your Group but you may not give, store or forward to others, in any form, any substantial portion of the information contained on the Site. Except as expressly provided by this Agreement, any use of the Site and its content is strictly prohibited without our written consent.
  • While using the Site, you agree to comply with all applicable laws, rules and regulations.

As Professor Lessig writes in his Foreword to “Citations, Out of the Box“, we ingest this kind of verbal razor-wire every day. A person ordinarily clicks I Accept and moves on; but when I came upon this passage for the first time, that person was not me. I was inclined to read with respect and deference, for two reasons that seemed compelling at the time.

First, for the previous two years, I had been working intensively with a highly motivated team to design and implement revisions to the CSL language. Specification discussions are a special flavour of discourse, with a very low tolerance for ambiguity and contradiction. A specification is intended to be a full and final expression of agreed requirements, and as such it must be clear what each statement it contains does and does not mean. Sustained exposure to that discipline had, I suppose, altered my reading instincts for the worse.

Second, I was in the process of circulating a book proposal, for the work that eventually became “Citations, Out of the Box”. Reference manager technology is unfamiliar ground for most lawyers, and a book-length publication would be an opportunity to lay out the basics to this new audience. It would be a major step for the project, and I was keen to avoid surprises for potential publishers.

From either perspective, the passage quoted above is an alarming nest of broadly cast restrictions. It can be read to prohibit a variety of actions that a reader might perform without thinking twice. Writing software to implement the rules of the style. Reading particular copies of the Bluebook while writing a book of one’s own. Referring to “The Bluebook: A Uniform System of Citation” by its own title. Granted, such readings conflict pretty sharply with common sense; but I thought it best to seek clarification (and truth be known, I was a little annoyed). So I sent off an email to the editors, explaining what I planned to do, and asking for confirmation that this would not violate the Terms of Use displayed on their website.

While waiting for a response, I received an offer of contract from a major U.S. legal publisher. This was a cause of great celebration in our household, until the following email arrived, from the Bluebook Chair at the Harvard Law Review:

Thank you for your inquiry. I apologize it has taken so long to reply to your message, but this mailbox is not checked as regularly (especially during the summer) as you expect.

As for your substantive questions. We do not accept your suggested Terms of Use or interpretation of the Terms of Use. If you have already purchased a key to The Bluebook Online and no longer wish to maintain your subscription, we would be happy to cancel it and refund your money.

Well, I had asked, hadn’t I.

It made no sense to me that the copyright associated with a volume standing on the library shelf could be extended so dramatically by the happenstance of signing up to read the same text online. Assuming that there had been a local misunderstanding, I pointed out this contradiction, in a followup note sent by registered mail to the four law reviews that operate the Bluebook. In due course, I received a response from my original correspondent:

Our position remains that the terms of use for the Bluebook Online are as they are stated. That position is shared by the other schools who are joint copyright holders in The Bluebook and on whose behalf I am speaking.

So now the annoyance was mutual.

When I wrote to Professor Lessig with news of this conundrum, he was equally puzzled, and kindly agreed to test the waters in a direct conversation with the editors. That did not go well: in addition to reconfirming that I was not welcome to subscribe to the online version, the editors apparently doubted whether readers of any copy of the Bluebook were free to cast its rules in software. I will confess that, although I am the author of a program that is used daily, to automate hundreds of citation styles, for an audience numbering in the millions, without anyone’s prior written consent, this latter possibility had never occurred to me.

As appropriate under the terms of the book contract awaiting signature on my desk, I shared this chain of correspondence with the publishers. Their response was cautious. Thinking that the ALWD Manual might serve as an alternative, I appealed to its editors, only to be informed that the Bluebook’s position sounded pretty attractive to them as well. Other possible adjustments were explored, but we were unable to find a satisfactory way of insulating the project from destruction (at least in the unhappy event that it proved successful). The deal fell through.

And so, with publishers leery of ominous signals emanating from Gannett House, the world’s first book on legal and multilingual reference management was relegated to DIY status. I dusted off my Python and LaTeX skills. I built my own typesetting platform. I learned to work with the node.js programming environment. I built a comprehensive style testing framework, and integrated it with the typesetter. I got very little sleep, but eventually, with the support and encouragement of a large and diverse circle of friends, I completed the book.

Some time after, Carl Malamud for Public.Resource.Org approached the Harvard Law Faculty, and through it the Harvard Law Review Association, concerning the stifling impact that the Bluebook’s restrictive stance was having on innovation. The approach was supplemented by a bundle of materials, including a tiny fragment of the Bluebook itself, a copy of the MLZ American Law Style, the MLZ abbreviation mapping files (reflecting various Bluebook tables), as well as items from other sources. Through the law offices of Ropes & Gray, the Association expressed a strong concern over the posting of the Bluebook text. Concerning the portions of MLZ code (which had been explicitly referenced to this website), counsel for the Association indicated that:

[T]he law reviews reserve their rights with respect to these particular files as they consider the issues posed by all such works.

And there the correspondence ends.

Taking stock today, five years since the commencement of citeproc-js development, three years since the initial query to the Bluebook editors, and two weeks plus a period of gestation since the statement quoted immediately above, I can say a few things with certainty. From time to time and in various contexts, the Bluebook editors have suggested that actions related in some way to their citation manual require their prior written consent; invitations to clarify the scope of those suggestions and their legal foundation have been rebuffed; the editors do consider that reading the text of The Bluebook Online with intent to write CSL style code would be a breach of its Terms of Use; the MLZ software and its styles have been publicly available for quite some time; and the editors have never demanded that support for their style be removed from MLZ.

The long period of constipated fretting over the series of Bluebook pronouncements described here has led me to conclude that it resembles nothing so much as that famous Tale of a Tub, a finely constructed work of literature flung out “by way of amusement” for persons of a serious disposition, but also known on good authority to have been “hollow, and dry, and empty, and noisy, and wooden, and given to rotation.” While this thoroughly gripping semantic adventure has had its moments, sanity requires that we return at long last to the foundations of the language, as it is normally used for communication between members of our species.

The software module once referred to as “the MLZ American Law Style” will now be known as “the MLZ Bluebook Style”; it will be described as “an unauthorized implementation of ‘The Bluebook: A Uniform System of Citation’” because that is what it is; and it will be adapted to cover the 20th edition of that citation manual, when said citation manual eventually reaches the bookshelves.

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12 Responses to The Bluebook: A Plot Summary

  1. Bruce says:

    I’m curious if you took the tack that open source movements take relating to commercial codes and laws would take to keep that information public and free might work? For instance, don’t cite the blue book, site the various public and non-copyrighted Rules of Court for various U.S. Courts on how they like documents submitted to the court, formats etc. and how they like references cited. Some may just use a blanket statement saying use the Blue Book for various cites but I think many of them show examples of how they like non-case law books cited. The case law cites are already standardized.

    • fgbjr says:

      The Bluebook is a citation manual. It enjoys copyright protection, and I wouldn’t dream of challenging that.

      An implementation of the rules described in the Bluebook is not a citation manual, though, and it is certainly not a copy of one either. Since I don’t really see what possible objection there could be, I’ve decided to stop wasting time thinking about it. :)

  2. Rich Barera says:

    I like that your book has a “maroon” cover. (Chicago style)

  3. dot tilde dot says:

    not being allowed to cite a book on citation that supposes to be a standard of some sort – you just can’t make this stuff up.

    .~.

    • fgbjr says:

      While it is possible to read the Bluebook Online license terms to mean that, it’s never been an issue, and I can’t imagine it ever coming up. But it does seem very strange to cast a license in such broad terms, and then refuse to engage in a meaningful conversation about its intended scope.

  4. Fakey McFakename says:

    I don’t think copyright owners making outlandish and unenforceable claims about what you can and can’t do is anything new. After all, every TV sports broadcast includes the infamous claim that every Facebook post, tweet, and so on, of the game requires the prior written consent of the Commissioner.

    • fgbjr says:

      That doesn’t make it right; and as far as I know, sports broadcasters don’t claim to enhance workplace efficiency through the service they provide. That said, in fairness, and as I wrote in the post, the editors have never objected in concrete terms.

  5. SchmittySam says:

    Along the lines of what Bruce suggests, you might go to a public law library at a courthouse or law school and cite the books, cases, articles, as they are cited by the public librarians who work there. As the library catalog is digital, access to their database of citations could be used to avoid doing this manually. Also, cases and briefs filed with courts use Bluebook-consistent cites. Those are public documents, often PDF or Word/Word Perfect. Could an algorithm extract and sort those cites? Bluebook-consistent formatting by describing formats in public documents. Just some wild ideas.

    • fgbjr says:

      Citation formats themselves are definitely not subject to copyright. 17 US Code sec. 102 is pretty plain:

      In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

      The main problem isn’t so much with broad assertions of copyright (which are just so many words), as it is with the fantastically strict terms written into the Bluebook Online license, and the insistence that its terms be read with their broadest possible meaning.

      As it has been put to me, in order to adhere to those terms “as written”, I must never in my entire life subscribe to Bluebook Online. Granted that it is now very unlikely that I will ever want to do so, that is still a nutty thing to be saying to a member of the community served by your product (or standard, or whatever). It seems little more than an exercise of power just for the sake of it (which is a little disturbing given the fact that some of these characters could end up running the government one day). But I digress.

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  8. chris lopez says:

    just wanted to thank you. i appreciate all the work you put into this. i’m a legal editor & copyeditor, not a lawyer, but i find works like these extremely useful. many of my books follow multiple style guides and just need a little consistency.

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