Guest post from Nicholas Mignanelli, University of Miami
The “culture wars,” such as they are, have come to The Bluebook. Of course, The Bluebook is a cultural product: the result of the cultural forces that have shaped it. But before I allow my penchant for critical theory to derail this blog post entirely, I should describe the controversy itself.
Last year, Justin Simard, now an assistant professor of law at Michigan State University, published an article in the Stanford Law Review entitled “Citing Slavery.” In “Citing Slavery,” Professor Simard explores the way “[j]udges cite slavery to explicate the law of contracts, property, evidence, civil procedure, criminal procedure, statutory interpretation, torts, and many other fields . . . without acknowledging that the cases grew out of American slavery and without considering that a case’s slave origins might lessen its persuasive authority[,] [n]or . . .examin[ing] the dignitary harms that the citation of slavery may impose.” Justin Simard,Citing Slavery, 72 Stan. L. Rev. 79, 79 (2019).
As one possible solution to this problem, Professor Simard suggests that “The Bluebook should require an additional signal, such as an ‘(enslaved party)’ parenthetical, in citations to slave cases. The additional rule could be added as part (e) to section 10.7.1, which governs ‘Explanatory Phrases and Weight of Authority.’ Such a requirement would prevent litigators from intentionally or accidentally obscuring a case’s origin in slavery. Requiring such acknowledgement in citation would provide transparency to the public but not limit the power of judges and lawyers to cite these cases.” Id. at 121.
Last month, Professor William Baude of the University of Chicago andProfessor Stephen E. Sachs of Duke University wrote a post for The Volokh Conspiracy reporting that a yet unreleased version of the The Bluebook “may require legal scholars to flag any cases whose facts involve slavery . . . [by] add[ing] a parenthetical disclaimer like ‘(enslaved party)’ or ‘(enslaved person at issue),’” in accordance with Professor Simard’s recommendation.
Professors Baude and Sachs argue that this proposed rule is “legally misleading” because “many cases involving persons held in slavery don’t carry less authority in our legal system,” “morally misguided” because “[s]ingling out the evil of slavery . . . potentially downplays many other evils,” and unscholarly because creating “a blanket rule on parentheticals is precisely to ignore whether or not the connection to slavery is intellectually relevant in context.”
Earlier this month, Professor Simard responded to Professors Baude and Sachs arguing, inter alia, that “[t]he case law of slavery is unique in its pervasiveness, in the applicability of many of its doctrines to different areas of law, and in its explicit repudiation by Constitutional Amendment,” and that “[t]he [proposed] Bluebook rule will achieve exactly what Bluebook rules should: it will encourage lawyers and scholars to cite sources carefully and accurately.”
As a law librarian fascinated by the history and politics of legal citation, I have followed with great interest the course of this exchange. However, I have yet to encounter any commentary by other law librarians on the proposed Bluebook rule and the arguments for and against it. In as much as law librarians typically serve as the citation experts at law schools, I am curious to hear what my colleagues think. Would the adoption of such a rule be a meaningful way to address the shameful legacy of slavery in the American legal system? Perhaps this question warrants a roundtable discussion at next year’s AALL annual meeting.