It’s that time of the year again. Every spring, law professors court law reviews. The relationship is initially filled with mutual infatuation — law professors eagerly try to get their articles accepted by the top law reviews and law review editors eagerly seek out interesting articles. It’s a springtime puppy love that sadly will not last. Soon after articles are betrothed to law reviews, the editing process starts. And that’s where some discord can set in.
Most of the time, I’ve been extremely pleased with the editing I’ve received on articles. There are, however, some practices that law review editors routinely do that are incredibly silly and annoying. They bother nearly every professor I talk to. And yet they persist. One of the reasons is the Bluebook. The Bluebook is a thick book with a blue cover filled with more rules than the Internal Revenue Code. It is written by a consortium of law reviews and its primary purpose is as a money-making racket.
My sense is that many law review editors have no idea just how widely professors view some of their editing practices as silly and bothersome. Perhaps by airing them out here will lead to meaningful reform.
Here are two of the silliest rules and practices of law review editing:
One of the most obnoxious rules is the requirement that nearly all cites need to have a parenthetical containting descriptive text. For example, suppose you write in the text:
The Supreme Court has held that a public official must prove actual malice to prevail in a libel suit. [Footnote 1]
Commenters tell me that the above sentence won’t need a parenthetical. Here’s another try:
The Supreme Court has made it significantly more difficult for public officials to prevail in libel suits. [Footnote 1]
Footnote 1: See New York Times v. Sullivan, 376 U.S. 254, 281-83 (1964).
But that’s not good enough. Often editors want a parenthetical. But what needs further explanation? Notwithstanding the fact that it is completely useless and unhelpful, a parenthetical will be added:
Footnote 1: See New York Times v. Sullivan, 376 U.S. 254, 281-83 (1964) (holding that actual malice is required for public officials in libel cases).
I’ve often received my articles back from law review editors with hundreds of parentheticals added to cites in the footnotes — and these parentheticals just repeat what was said in the text or add extraneous and irrelevant information.
2. Footnotes for Every Proposition
Another irksome practice is when law review editors want footnotes for nearly every proposition in the article. For example:
The earth revolves around the sun.
A footnote must be added:
The earth revolves around the sun. [Footnote 1]
Footnote 1. See Nicolaus Copernicus, On the Revolutions of the Heavenly Spheres (1543)
I’ve had scores of needless footnotes added to my articles and countless times where editors requested I footnote things that cannot be footnoted, such as my own normative assertions. Another great one is when I say something like: “There are no cases involving [a particular issue].” Sometimes I’ve had editors ask me to supply a footnote. What do I cite to for the absence of something?
A related problem is that sometimes editors want to footnote every sentence that can be footnoted. I’ve had many instances where editors wanted to add footnotes after every sentence describing the facts of an opinion. What help are all these footnotes? The facts of an opinion usually take up the first two pages or so. If a reader can’t find the facts of an opinion, then I’m not sure that the reader will understand much of anything in my article.
Another related silly rule is to have a dual case cite in the same sentence. So if you write:
In New York Times v. Sullivan, [Footnote 1] the Supreme Court held that public officials must prove actual malice in libel cases. [Footnote 2]
Footnote 1. 376 U.S. 254 (1964)
Footnote 2: Id. at 281-83.
Why are two footnotes necessary for this sentence? They could readily be consolidated into one footnote.
The overarching philosophy of citation should be to ensure proper attribution and to assist the reader in finding the necessary sources. Law review editors should ask themselves: Does a citation really help the reader? What purpose does this citation serve? If these questions are asked to justify each citation, I believe that a much more sensible approach to citation will develop.
If law review editors were to jettison the two pet peeves I mention above, it would eliminate the bulk of my gripes. My sense is that these two pet peeves are among the most loathed editing practices by law reviews. So all you law review editors out there — especially those at the journals who write the Bluebook — please put a swift end to the parenethetical and the needless citation. Law professors around the country will rejoice. And you’ll be happier too, as it will make your lives easier as well. It’s a win-win situation for everyone!
To other law professors: Do you have law review editing pet peeves I haven’t mentioned above? What editing practices and Bluebook rules should be reformed?
Also worth reading:
1. Ilya Somin, The Law and Economics of the Bluebook Market Failure (Volokh Conspiracy, May 2006)
2. Ilya Somin, The Case for Abolishing the Bluebook (Volokh Conspiracy, May 2006)
3. Daniel Solove, The New Bluebook (18th Ed): Rush to Get Your Copy (PrawfsBlawg, May 2005)
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.