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Turning the Page on the Bluebook’s Tone-Deaf Past


Carol Benedicto, PLI Legal Editor

Alyse Greer, PLI Staff Reporter

The editors of four prestigious institutions—the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and the Yale Law Journal—published the 21st edition of The Bluebook: A Uniform System of Citation in January 2021. Described by the editors as the “go-to guide for generations of law students, lawyers, scholars, judges, and other legal professionals,” the book is a must-have for most lawyers. But the book’s tumultuous past and failure to acknowledge slavery and gender bias has remained largely swept under the rug. Until now.

During the 2021 Virtual AALL Conference, The Bluebook Confronts Slavery session exposed unethical legal practices that still exist in the legal profession and the Bluebook’s role in perpetuating and ultimately shining a light on—and, in some instances, correcting—these wrongs. The enlightening presentation was moderated by Ronald E. Wheeler, Jr., the Director of the Fineman & Pappas Law Libraries and Associate Professor of Law at the Boston University School of Law.

Professor Justin Simard, a Legal Historian and Assistant Professor of Law at Michigan State University College of Law, began the eye-opening session with a presentation on the vast expanse of case law that lawyers and judges continue to cite involving enslaved people, including disputes over contracts, property, and criminal and civil procedure. In many instances, citations to these cases are still considered “good law” and do not reveal the cases’ context in slavery.

Referencing research that he conducted for his 2020 Stanford Law Review article, “Citing Slavery,” Professor Simard revealed that he uncovered “350 cases in the last 35 years in which state and federal judges cited cases involving enslaved people…without mentioning ‘slave’ or ‘slavery.’” The cases originated from the majority of state and federal circuit courts, as well as the Supreme Court.

“Doing this causes two types of harm: legal and dignitary,” said Professor Simard. Legal harms include:

  • 1.

    Relying on a confusing person/property distinction;

  • 2.

    Presenting reasoning designed to protect slavery; and

  • 3.

    Failing to acknowledge that much of this case law was abrogated by the 13th Amendment.

And citing slave case law leads to dignitary harms

  • 1.

    By disregarding white supremacist language and reasoning;

  • 2.

    By hiding the legal profession’s role in enabling and facilitating slavery; and

  • 3.

    By perpetuating the dehumanizing of slavery.

“Lawyers have helped to create this problem, and we now need to acknowledge that,” Professor Simard said. “Courts have a special duty to publicly acknowledge the legacy of slave law.” He encourages the legal profession to confront its role in slavery by taking responsibility for the existence of the body of slavery law; improving legal research tools to flag slave caselaw, to discourage accidental citations to these cases; and adding signals to the Bluebook for citing to cases that involve slavery.

And the Bluebook editors agree. According to Alexander Harper, Bluebook Editorial Chair for Harvard Law Review (Vol. 134), the Bluebook editors generally do not make major changes between editions. In addition to not having the capacity to make major changes annually, the editors do not want to force people to buy new Bluebooks every year. However, after Professor Simard submitted his Stanford Law Review article and arguments in favor of a rule requiring the addition of a parenthetical identifying when one of the parties is an enslaved person or when a case involves slavery, the editors broke with tradition and updated Rule 10.7.1 shortly after releasing the 21st Edition. As the rule was revised after the first printing of the 21st Edition, the change only appears in online versions and in later printings.

When asked why the Bluebook editors did not delay the change until the 22nd Edition, Mr. Harper stressed the moral imperative that he and his co-editors felt in addressing the failure to cite slave cases. “We found Justin’s argument convincing for the legal implications of failure to cite slave cases, and also from a moral perspective,” said Mr. Harper.

Failure to acknowledge cases involving slavery and enslaved persons is not the only blemish on the Bluebook’s record, according to Julie Graves Krishnaswami, Head of Research Instruction & Lecturer at Yale Law School. Until the early 1990s, only last names were used in footnote citations, so there was no way to distinguish female authorship. Changing this practice required feminist activism.

In 1990, Katharine T. Bartlett, then Professor of Law at Duke University School of Law, published “Feminist Legal Methods” in the Harvard Law Review. Ms. Krishnaswami explained that Professor Bartlett tried to convince her editors to depart from the rule that prohibited first names in footnotes, but to no avail. In her article’s introduction, Professor Bartlett wrote:

I had wanted to humanize and particularize the authors whose ideas I used in this Article by giving their first as well as last names. Unfortunately, the editors of the Harvard Law Review, who have otherwise been most cooperative, insisted upon adhering to the “time-honored” Bluebook convention of using last names only…. In these rules, I see hierarchy, rigidity, and depersonalization, of the not altogether neutral variety. First names have been one dignified way in which women could distinguish themselves from their fathers and their husbands. I apologize to the authors whose identities have been obscured in the apparently higher goals of the Bluebook orthodoxy.

Other feminist scholars, including Carolyn Heilbrun and Judith Resnik, also used their own law review scholarship to speak up, and, in 1991, the Bluebook editors—at last—departed from the misogynistic last-name-only rule and updated the 15th Edition with a requirement that first names be used for book and article authors.

The change provided an additional benefit; with the advent of computerized legal research and Boolean Search, first names provided more accurate search results when there was a sea of same last names. “This is a definite improvement; there are more than forty law professors named Smith, and of course nonacademics also write articles,” wrote James D. Gordon III, Professor of Law Emeritus at Brigham Young University, in his 1992 book review, “Oh No! A New Bluebook!” which was featured in the Michigan Law Review. “I have a suspicion that the fourteen other law professors who share my surname have been really ticked off at me until now.”

The aforementioned reveals that greater societal issues were reflected in the pages of the Bluebook, but petty workplace politics also played out behind the scenes.

Fred R. Shapiro, Associate Director for Collections and Access at Yale Law School Lillian Goldman Library, rounded out the session with a “tell-all” that depicted the early days of the Bluebook as unsavory, competitive, and rife with trivial claims about who initiated the publication. His presentation was based largely on “The Secret History of the Bluebook,” which Mr. Shapiro co-authored with Ms. Krishnaswami. “The Bluebook is not apolitical and does not exist in an ideal plain,” said Mr. Shapiro. “It existed in an atmosphere of greed, [extreme deference], and dishonesty.” Though Mr. Shapiro used a less sugar-coated term to convey his point.

Greed:

The Bluebook was copyrighted in 1934 and jointly owned by the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and the Yale Law Journal—but Mr. Shapiro said that 100% of the Bluebook revenue went to Harvard for fifty years. Eventually, in the 1970s, they agreed to split the profits, but, ultimately, Harvard continued to retain the greatest share.

Extreme Deference:

When the idea of a uniform citation system was first advanced in the early 1920s by the Yale Law Journal, the Harvard Law Review objected to it. Mr. Shapiro explained that Harvard was “more interested in placating their Professor [and future Associate Justice of the U.S. Supreme Court] Felix Frankfurter” than it was “concerned with uniformity and logic.”

Dishonesty:

At a 1987 banquet celebrating the 75th anniversary of the Harvard Law Review, longtime dean of Harvard Law School Erwin Griswold proclaimed that Harvard conceived the idea for the Bluebook, that the majority of editorial work was and continues to be done by Harvard, and that he was the original author of the Bluebook. But according to Mr. Shapiro and Ms. Krishnaswami’s research, Yale and Columbia devised rules for the first edition of the Bluebook, and Griswold played no part.

The session cast a bright light on the Bluebook’s unpalatable past. However, thanks to thoughtful research and writings by the speakers and various activists, and, more recently, the Bluebook editors’ sense of urgency, the legal industry can take responsibility for perpetuating discriminatory practices and continue to rectify past wrongs.

For more information about Professor Simard’s research, visit the Citing Slavery Project, a website and database that he created and maintains with the help of various editors comprised largely of rising law school students.


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