The Bluebook Confronts Slavery: A Call for Discussion Among Law Librarians

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.  

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Sorry for the delay and thanks for your patience

After promising myself yet again that I wouldn’t procrastinate on grading, I spent the better part of last week catching up on marking student research projects that I had let pile up. It started like it usually does. The morning after the students turned the assignment in, I had some not really urgent but still important work to do. The next few days I kept getting delayed by assorted things that would crop up that I could handle quickly. After that, I was feeling really stressed about the election, and I shouldn’t grade when I’m feeling anxious and cranky, right? I wouldn’t want to take my feelings out on the students’ work. Once I started feeling a better, I really did sit down to grade. I got on a roll (two whole assignments graded!) before a minor household emergency (the cat threw up) needed handling. Suddenly it had been two weeks since the students handed in their assignments and I had only finished grading a few of them, and the due date for another assignment had come. It’s a familiar pattern for me, but not just since I started teaching. This is pretty much how I operated as a student. Get an assignment, promise myself I’ll get started early this time, and then get derailed and have to finish in a rush.

None of us change into new people upon graduation or getting a job. Everything students struggle with; professors struggle with too. I’ve had my share of gripes about students and their tendency to neglect reading emails, yet I’m sitting on a too-full inbox and doubtless missing out on things I should probably know (along with every single faculty member). When I’m (finally) grading, I hate it when students make mistakes that I explicitly instructed them on how to avoid. Never mind the fact that the other day I was grading during a university town hall and realized that I missed hearing the exact thing I had attended the town hall to hear…along with most of the rest of what was said. Generational divides pale in comparison to the over-obligation and information overload that unifies us all.

I’ve tried turning this into a useful piece of advice for students. I ask them to write a research summary as part of their assignments and they will often complain that they simply can’t fit everything they need to say in the page limit I give them. So, I ask them what they first thing they do when starting their reading for a class. They usually won’t admit it until I tell them that as a student the first thing I would always do is look at how many pages the reading was for that day. If it was long, I’d be annoyed. If it was short, I’d be thrilled. Then they tend to admit they do the same thing. I remind them that every judge and law professor was once a law student who groaned at long reading assignments and that they’re not suddenly going to enjoy reading over-long work once they graduate either. Why not start us off in a good mood with a nice bit of writing that isn’t any longer than it needs to be?

It’s not bad for those of us on the other side of the lectern to remember that, too. Not just the concise writing advice (okay, many of us could stand to remember the concise writing advice) but that students have pressures and obligations coming from multiple places just like professionals do. Late or subpar work isn’t a character flaw or always indicative of a lack of effort. Maybe it’s just that there was a once in a lifetime election and then their cat threw up.

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Common Scolds, Drunkards and Embracery: Exploring the Past and Present Through West Digest Topics

When discussing the West Key Number System with my legal research students, for years I have drawn their attention to the last topic listed in the outline of topics – 414 Zoning and Planning – before revealing there are not actually 414 topics. Usually after vaguely asserting there are over 400 topics, a number I had noted on Westlaw sites in the past, I theorize that the Westlaw powers-that-be are nostalgic about the original number of topics (414) and pretend that the number hasn’t changed over the years. After many years of wondering about the actual number, I recently decided to find out. Unable to find any statement on the number of topics on a current Westlaw site, I had to count them myself.

Actual Number of Topics

There are only 375 topics! I was so surprised that I counted three times, once using Excel, just to be sure. I think that I expected over 414 topics since some topics (58 to be exact – I counted that too) have a letter included in the number (e.g., 11A Accountants and 15A Administrative Law and Procedure) suggesting to me that they are a subdivision of their accompanying number. I expected (and confirmed – see below) that the alphanumerical topics were not part of the original 414 due to the modern nature of the topics – 15A Administrative Law and Procedure, 29T Antitrust and Trade Regulations, 48A Automobiles, and 48B Aviation. However, I didn’t expect the number to be too much greater than 414, since I noticed that some numbers were skipped altogether (e.g. no topic is assigned the number 3 or 22, 26, 32, 33, etc. I was tired of counting so I didn’t count the total number of skipped numbers though 😦 ).

West Topic Inventor John B. West

In addition to wondering about the current number of topics, I was curious about how the topics have changed over the years, since a lot has happened in the world and the law since legal publishing legend, John B. West, introduced the American Digest System in 1887. According to West biographer Robert Jarvis in his article entitled John B. West: Founder of the West Publishing Company, West started out as a law book salesperson, and became so familiar with the research needs of lawyers, and in 1872 established the John B. West, Publisher and Book Seller company. After partnering with his brother Horatio in 1876, the company began publishing case summaries and in 1879 published the first of his regional reporters which became the cornerstone of the National Reporter System. In 1887, he unveiled his plan to classify every case into the American Digest Classification Scheme. It was not the only legal classification effort at the time, but soon his system overtook his competitors after the company increased the utility of the system by adding Key Numbers which gave every point of law its own permanent identifier. It was so popular with lawyers that, in 1898, the American Bar Association endorsed his classification system as a model digesting system.

Finding the Original 414 Topics

In order to see how the topics have changed since the original 414 topics, I first had to find them. It turns out that the original 414 are not actually the original number of topics. In Volume 1 of The American Digest published in 1887, there were only 320 topics which were called “main heads.” By 1912, according to the Descriptive-Word Index to Decennial and All Key-Number Digests, there were still only 412 topics. For reasons explained below, I decided that 412 was close enough to 414 for the purposes of this blog post past/present exploration.*

Times Have Changed!

Now to see how times have changed! Looking at the topics listed under Titles of Subjects Related to Crime from 1912 provides an interesting exploration of U.S. history and shows not only how much has changed over the years, but also how much has remained the same.  

Image shows which are no longer topics in 2020.

Society has changed so much that some of the topics are no longer actual crimes, such as adultery, blasphemy, fornication, miscegenation, and sodomy. Others are still crimes, but likely occur so infrequently they are no longer worthy of their own topic, such as dueling and piracy. Others COULD still be crimes, such as affray, embracery, and common scold, if only we knew what they meant! (Embracery is bribing or threatening jurors, affray is fighting in public, and common scold (my favorite!) is breaking the peace by chastising, arguing, and quarrelling in public.) And, of course, rape is still a crime sadly worthy of its own topic, but has been renamed (Sex Offenses).

We can see from the list of topics under Titles of Subjects Relating to Particular Classes of Natural Persons that political correctness was apparently not a thing in 1912!

Reminder! 7 Categories and 34 Comprehensive Divisions

I hadn’t looked at a print digest for years before I looked at the 1912 digest. After all these years of only clicking through the West Key Number System on Westlaw, I totally forgot that the topics were originally organized under seven broad categories and 34 comprehensive divisions of law! For my fellow forgetfuls, the 7 categories are Persons, Property, Contracts, Torts, Crimes, Remedies, and Government, and each is further subdivided into 34 comprehensive divisions. For example, Persons is divided into 5 subdivisions: Titles of Subjects Relating to Natural Persons in General, Titles of Subjects Relating to Particular Classes of Natural Persons, etc.

Conclusion

Well, now I know how many West Key Number topics there are! And, I enjoyed exploring the past and the evolution of law and society through the West digest topics.  

*The problem is that all of the early volumes and descriptive word indexes that I have access to through Hathi Trust, Google Books, or my law library don’t include a list of topics anywhere (other than the 1912 Descriptive-Word Index to Decennial and All Key-Number Digests). They don’t even include a list of topics covered in each individual volume. For example, in order to find out the number of topics for the Second Decennial Edition of the American Digest which was published in 1917, I would have to spend hours flipping or clicking through individual volumes, counting the topics. It seems like The American Digest volumes start with a list of topics, but unfortunately, only the pre-1912 volumes are available through Hathi Trust or Google Books. Maybe I will figure it out for my next blog post!

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Questions with Puron: The Tables are Turned! – Interview with Our Penguin Mascot, Puron

Guest Post by: Shari Berkowitz Duff

Puron has interviewed many RIPS members over the years, so we thought we’d surprise him with who the subject of his next interview was going to be…Puron himself!  Needless to say, he definitely wasn’t expecting the shoe to be on the other (webbed) foot.  Shari Berkowitz Duff, who herself was interviewed by Puron in February when we rebooted the Questions with Puron series, had a chance to speak with the exalted penguin.   Here are some excerpts from their conversation:


Q: We know that every summer you move to a new city to live with the President of RIPS, and you are currently living with Taryn at Stanford in Northern California.  Do you have a favorite city or state after these past 20+ years? 

A: I can honestly say I have no single favorite city or state.  I love them all.  Turns out I’m an adventurous sort of penguin.  Much to my parents and family’s chagrin, I left home years ago because I got tired of seeing the same thing all day, every day.  I had a yearning and need to see what else was out there besides ice and snow.  While I still prefer a colder climate, I’ve found ways to thrive in warmer places – I LOVE air conditioning!  After years of hanging out with Librarians, I’ve gotten very good at researching everything about where I’ll be living for the next year and what interesting things there are for me to visit and explore.

Q: Continuing with the travel theme, we see you at every AALL Annual Meeting each July.  What do you enjoy most about attending every year? 

A: I love seeing old friends I’ve come to know over the past several years, but there’s always a sense of excitement to meet new Librarians…either those new to the profession or those who may not be able to attend the Annual Meeting every year.  I’m usually helping to represent and market RIPS to AALL members, but I also try to check out the excitement in the exhibit hall and maybe catch a program or two if I have time.  I keep hoping that one of these days I’ll be surprised and there will be a program on penguins or Antarctica.  Maybe I’ll just have to propose it myself!  I was really looking forward to New Orleans this year – it’s such a wonderful city with great culture, people, and food.  I had also been excited to meet my fellow penguin at the Audubon Aquarium in New Orleans, who RIPS has adopted this year.  I always plan a special  trip to visit that year’s adoptee (this year it’s an African Penguin) to welcome them as a honorary member of RIPS.  It’s always something I look forward to, but I’m glad everyone was able to stay safe instead with the virtual format so we can be all together again next year in Cleveland.

Q: When incoming Vice Chair Kristin Gerdy bumped into you back in the 1998, and asked if you would be interested in a role with the RIPS-SIS, what were your first thoughts?

A: I was intrigued, but also definitely confused about all of it…what is a Librarian, what do they do, what RIPS actually was, and what can 1 penguin do to help.  Kristin recognized my hesitation but also must have seen the excitement of the possible adventure and challenge in my eyes.  So we agreed to grab a quick bite to eat at California Pizza Place, a little local place across from the convention center, and talk it all over.  Plus I never turn down eating pizza…it’s one of the best foods ever created…next to fish of course!  Kristin explained that the driving force behind Librarians, no matter what kind of Library they worked in, was to help people in whatever way they could – from a simple task showing them how to find a book or use an electronic resource, to doing more extensive research on behalf of someone so they didn’t have to worry that it was done correctly.  After discussing more examples of how Librarians help make the world a better place, she said come with me to the AALL Annual Meeting in Anaheim so you can get a first-hand look before I make any decision.  I took her up on her offer and I’m still here all these years later!

Q: Now a fun question…Do you have a favorite movie or book?  I can probably guess a possible contender…

A: There are actually a number of books and movies out there about penguins.  We’re more likeable and popular than many people would think.  There are whole societies of fans out there that love everything penguins (and I’m not just talking about sports teams called Penguins), along with companies that have requested to have penguins as part of their name such as Penguin Books or Penguin Random House.  But back to your initial question…I probably would say Happy Feet – I assume that’s what you thought I would say.   Mumble discovered he felt a different calling than what his family wanted him to do – he couldn’t sing but he certainly could dance!  As I mentioned before, that’s how I felt in always feeling like there was more out there to the world that I wanted to see.  He didn’t give in to the pressure to be like everyone else, and neither did I.  To bring it back to our world of fellow Librarians – I think that’s one of the reasons I have been welcomed and felt a part of the community since first meeting Kristin all those years ago…everyone was very open and accepting of being a colleague with a penguin. 

Q: Have you ever thought about becoming a Librarian yourself?

A: Occasionally.  Although I’ve picked up some researching skills and attended classes and events over the years, I realized that my personality and skills could be better used in other ways.  I’m a welcoming and calming presence to not only the current President of RIPS, but also to everyone who I see in the Library.  I’m great at the PR side of things – people just love penguins! 

Q: Do you have any predictions for 2021 for RIPS, AALL or anything else?

A: It’s been such a tough, stressful, and chaotic year.  I think everyone is doing a lot of adjusting in all aspects of life, re-examining their priorities and how they do things, and also what they want for the future.  I do think things will start to improve, albeit slowly, in 2021.  It will take some work and we all have a stake in how we want things to turn out, but if anyone is up to the challenge, it’s all of the fabulous Librarians I know! 


We hope you enjoyed getting to know Puron. If you would like to hear from more members, join the conversation on our Twitter RIPS-SIS (@RIPS_SIS) or connect with us on Facebook facebook.com/PuronRIPS/. The PR & Recruitment Committee will also be reaching out to select members for participation in this series. If you would like to be featured, or want to recommend someone, please email Emma Wood at emma.wood@umassd.edu.

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On “America’s Therapist” and the Age of Vulnerable Leadership

This year, I’ve been more vulnerable than ever at work. It seems like every time my team and I get together for our biweekly check-in meetings, I’m shedding at least a couple of tears. I’m not saying that’s a great thing, and I’m also not saying that tears are an accurate measure of what it means to truly be vulnerable. But I am saying that I feel especially lucky to work for supervisors who allow me to be vulnerable during the most difficult and confusing of times, and that my ability to do so is a direct result of their own vulnerable leadership.

Chances are you’re already familiar with the work of Brené Brown, a research professor at the University of Houston (Go Coogs!), who has spent two decades studying courage, vulnerability, shame, and empathy. She’s gained a lot of traction since her hugely popular TED talk on the power of vulnerability in 2010, even more popularity through her Call to Courage Netflix special last year, and in June, a Texas Monthly article deemed her “America’s therapist” in light of the many troubles the COVID-19 pandemic has brought into our lives. So what does she have to say about vulnerability? Well, a lot. She’s written extensively about the concept, but in her new Dare to Lead podcast, she notes that vulnerability is at the heart of daring leadership and submits that “to be a leader is to be vulnerable every day and every moment.”

Of course, Brown isn’t the only one talking about the growth of vulnerability in 2020. In a recent article, Forbes contributor Vindou Duc opines that “the age of Iron Ladies is officially over.” And in a recent Harvard Business Review article, Amy C. Edmondson and Tomas Chamorro-Premuzic argue that today’s leaders need vulnerability, not bravado, and provide five suggestions for seeking to cultivate a more vulnerable style of leadership:

  1. Start by telling the truth.
  2. Ask for help.
  3. Go outside your comfort zone.
  4. When you make a mistake, admit it and apologize.
  5. Engage others in your journey of self-improvement.

I for one can’t express enough gratitude for this new age of vulnerable leadership. The truth is I hadn’t previously thought much about the value of vulnerability in the workplace, but of course, this year has changed just about everything. To my amazing supervisors who are vulnerable and allow me to be vulnerable, I want to say thank you. I’d also like to make a commitment to seek to remain vulnerable, and I hope everyone reading will do the same.   

References:

Brené Brown, The Power of Vulnerability, YouTube (Jan. 3, 2011),  https://www.youtube.com/watch?v=iCvmsMzlF7o.

Brené Brown, The Heart of Daring Leadership, Dare to Lead Podcast (Oct. 19, 2020),  https://brenebrown.com/podcast/the-heart-of-daring-leadership/.

Sarah Hepola, How The Pandemic Turned Brené Brown Into America’s Therapist, Texas Monthly (June 2020), https://www.texasmonthly.com/the-culture/pandemic-turned-brene-brown-americas-therapist/.

Amy C. Edmondson & Tomas Chamorro-Premuzic, Today’s Leaders Need Vulnerability, Not Bravado, Harvard Business Review (Oct. 19, 2020), https://hbr.org/2020/10/todays-leaders-need-vulnerability-not-bravado.

Vindou Duc, The Age of Vulnerable Leadership, Forbes (Oct. 22, 2020),  https://www.forbes.at/artikel/the-age-of-vulnerable-leadership.html.

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