By Sara Wolff
Those who work in the legal field know and appreciate the importance of proper, accurate legal citation in their work. Writers must support their propositions with citations, and readers must be able to fluently read those citations, both to immediately understand the weight and value of the authority and to find that authority easily. However, what it means to cite “properly” is in a state of some flux. Some long-standing, traditional rules are being replaced with practices that recognize and give a nod to tradition, but simultaneously reflect a more practical approach to citation in legal practice, if not in legal scholarship. Even the U.S. Supreme Court has signaled a willingness in Brownback v. King, 592 U.S., 141 S. Ct. 740 (2021), to diverge from certain long-held citation standards when a more common-sense approach can be agreed upon.
Writing for a unanimous Court in Brownback, Justice Thomas quoted language from Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-02 (2001), which had, in turn, quoted some of that language from the Restatement (Second) of Judgments. Under typical Bluebook rules, Brownback would include layers of double and single quotation marks in the quoted language and the cite to Semtek would need at least a lengthy “quoting” parenthetical to the Restatement (and maybe an “alterations omitted” parenthetical). But Justice Thomas dispensed with almost all of that and instead simply included a “(cleaned up)” parenthetical with the Semtek cite to let the reader know that certain supporting citation information had been dropped.[i]
This appears to be the first—and only—time SCOTUS has used the “(cleaned up)” parenthetical in lieu of longstanding citation formats,[ii] so it is difficult to know whether this practice will take hold across the Court. An article in the ABA Journal characterized Justice Thomas as going “rogue on the Bluebook” when he replaced “a lot of ‘citation baggage’” with the “cleaned up” parenthetical. Debra Cassens Weiss, Justice Thomas Goes Rogue on the Bluebook with ‘Cleaned Up’ Citation—To the Delight of Appellate Lawyers, ABA Journal (Mar. 15, 2021), https://www.abajournal.com/news/article/justice-thomas-goes-rogue-on-the-bluebook-with-cleaned-up-citation-to-the-delight-of-appellate-lawyers. However, U.S. Courts of Appeal and District Courts, and appellate attorneys everywhere, have embraced this citation practice with gusto since 2017,[iii] when appellate attorney Jack Metzler first published a call-to-action, proposing that legal writers adopt the “cleaned up” parenthetical. Id.; see Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (2017).
The courts are not the only entities embracing certain changes to citation standards. The Bluebook itself instituted several significant changes in its most recent 21st edition, published in 2020. For example, gone are pages and pages of complex rules that used to govern exactly how to order authorities in a string cite. Instead, Rule 1.4, “Order of Authorities Within Each Signal,” states:
Authorities should be ordered in a logical manner. If one authority or several authorities together are considerably more helpful or authoritative than the other authorities cited within a signal, they should precede the others.
One could almost hear the collective “hurrah!” from law review editorial boards when that rule was changed.
I am in favor of simplifying legal citation practice, within certain parameters. I am not (yet) a fan of the “(cleaned up)” parenthetical. Its ease is certainly appealing, but it is ambiguous and produces more questions than answers: What was “cleaned up; should it have been “cleaned up”; was anything lost that the legal reader might want to know about; something that might signal something of value to the reader about the weight to give the cited material or its provenance?. And while Bluebook Rule 1.4 is now infinitely easier to teach 1L students than before that citation sea-change, the prior clear (though cumbersome) rules have arguably given way to less clarity and more interpretation (what is a “logical manner”?). In short, unlike Judge Posner, I am not ready to burn The Bluebook. Legal citation is intended to impart too much needed information to the legal reader to go completely rogue.
Nonetheless, legal citation is a language, and like all languages, it should and must evolve to meet the needs of those who speak it. I am therefore fully on board with modifying citation rules as long as new citation formats (1) impart all of the needed information to the legal reader, and (2) are immediately recognizable and understood by the legal community (i.e., changes in citation formats should not lead to a citation free-for-all that prevents legal professionals from efficiently and effectively communicating with one another).
This brings me to Uniform Maine Citations (a.k.a., the UMC). The UMC provides Maine citation practice guidance (i.e., guidance on citing to Maine state and local primary and secondary authorities to Maine audiences) along with explanations of Maine legal sources and guidance in researching Maine authorities.
This resource has a long and storied history. Maine practitioners and citation visionaries Michael Seitzinger and Charles Leadbetter originally authored and updated this guide, the first edition of which was published by the Maine Law Review in 1982 and the second in 1992. With the third edition, published in 2003, Nancy Wanderer, then Director of Maine Law’s Legal Research and Writing Program (and now Professor Emerita), with members of the Maine Law Review, took on stewardship of this Maine-focused citation and research guide. I then took the reins in 2015. Thus, the UMC has been a part of the Maine legal landscape for forty years. But it has not remained a static document; it has undergone significant change and growth. Since 1982, the UMC has tripled in size. Whereas editions were originally updated every decade or so, the UMC has been updated annually since around 2010. Additionally, the UMC is now published entirely online—and is thus widely available—and, at last count, the 2021-2022 edition (published in September 2021) has been downloaded 1,864 times.
[i] A court “uses ‘cleaned up’ in [a] decision to signal removal of extraneous, non-substantive citation clutter (such as brackets, quotation marks, and further citations) to improve readability without altering the substance of the quotation.” Williams ex rel. G.W. v. Indep. Sch. Dist. No. 5, No. 19-CV-499-JFJ, 2021 WL 1646523, at *7 n.7 (N.D. Okla. Apr. 27, 2021).
[ii] Interestingly, the Brownback opinion only uses the “cleaned up” parenthetical in one spot, even though there were other opportunities in that opinion to do so.
[iii] Research did not reveal a published Law Court decision that uses the “cleaned up” parenthetical.