#9―A (Plot) Against the Profession by President Obama?
(speculating wildly and parenthetically)
But, perhaps, Mr. Obama’s greatest contribution to legal scholarship may have been helping to revise and update the Bluebook. … I have never seen anyone make this connection before, I thought I’d flag it as, perhaps, noteworthy.
Derek T. Muller.[1]
When you have eliminated the impossible, whatever remains, however improbable, must be the truth.
Sherlock Holmes
On the evidence I’ve reviewed, it’s not impossible. I see motive, opportunity, and means. Political genius. I even see red herrings so would-be trackers lose the scent. If ’twere done, ’twere a plan fiendishly clever in its intricacies. And prescience. I’m not a fan of the consequences. But I want to know the full story.
Evidence―the victims
Pick some Supreme Court case with a lot of briefs. Start scanning. Sooner, or even before that, you will see something like this:
Or even in briefs by the best you’ll find lots of somethings like this:
The scene of a syntactical crime
We can trace it back to 1991. The Fifteenth Edition of The Bluebook was a significant revision that generated a lot of buzz. The buzz focused on “political correctness,” parallel citations, and how to cite authors’ names, as well as the burgeoning girth of the tome.[2]
Lost in that noise was an addition that one credulous reviewer placed under “Miscellaneous New Goodies.”[3] It was Bluebook Rule 1.5 on explanatory parentheticals:
Regardless of the type of authority you are citing, it is often helpful to include additional information to explain the relevance of the cited authority. Append this information parenthetically at the end of your citation but preceding any citation to subsequent history.
Explanatory parentheticals should take the form of a phrase that begins with a present participle, a quoted sentence, or a short statement that is appropriate in context ….
Use parentheticals, as needed, to explain the relevance of a particular authority to the proposition given in the text. Parenthetical information is recommended when the relevance of a cited authority might not otherwise be clear to the reader.
Before this 1991 “rule,” lawyers and judges would just say things in normal (well, frequently stilted) sentences and then provide supporting citations (they also didn’t think they needed a citation for everything). For example, this is from the famous flag-burning case of Texas v. Johnson in 1989:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e.g., [ten pretty famous cases, no parentheticals]
By 1995, things had changed dramatically. From United States v. Lopez (sans citations):
For nearly a century thereafter, the Court’s Commerce Clause decisions dealt but rarely with the extent of Congress’ power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. See, e.g., Veazie v. Moor (1853) (upholding a state-created steamboat monopoly because it involved regulation of wholly internal commerce); Kidd v. Pearson (1888) (upholding a state prohibition on the manufacture of intoxicating liquor because the commerce power “does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State”); see also L. Tribe, American Constitutional Law 306 (2d ed. 1988). Under this line of precedent, the Court held that certain categories of activity such as “production,” “manufacturing,” and “mining” were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause. See Wickard v. Filburn (1942) (describing development of Commerce Clause jurisprudence).
That’s 65 words of explanatory parentheticals when—at most—maybe “steamboats” and “liquor” would do, and the last one could be deleted entirely.
Call out the instigators. There’s something in the air.
Umm … what’s the crime? And what’s the tip?
Want to write better? Get to the point, be conversational, and make the thing look nice and reader friendly. Explanatory parentheticals, especially heavy use of them, flunk all three. They bury important information, they are aggressively and bizarrely anti-conversational, and they are ugly (like a Sarlacc). Crimes ##1-3: Syntacticide and accessory to bloat and hideousness.
Here’s the tip. Stop with the explanatory parentheticals or at least so many. If you think you need them, you either give the Bluebook far too much weight, don’t understand the rule, you’re not writing good paragraphs, or all of the above.
Write good sentences about your legal points from cases and authorities you’ve actually read and understand and think are worth the reader’s attention and then provide those citations. Got a good quotation? Make it part of a good sentence.[4]
The “rule” only recommends a parenthetical if “the relevance of a cited authority might not otherwise be clear to the reader.” If the relevance isn’t clear, you’ve written a poor paragraph. If you want to read more in the “tip” genre on this, I’ve written about it previously here. Let’s get back to the crime story.
The Suspect―Means and Opportunity
Barack Obama was the President of the Harvard Law Review at the time of the revision. He was also involved in some notable side controversies regarding revenue from the Bluebook.[5] Perhaps he was part of giving the Bluebook an improved “social conscience” and “political correctness”; some people suspect so.[6]
Thus, for Rule 1.5, we can at least place him at the scene of the syntactical and accessory crimes with the means to pull it off.
Motive and Mens Rea
Here’s what I can imagine:
Boring and benign. The parentheticals are checking off that the cited authorities are sound. They are showing the work of those diligent cite checkers.
Benevolent and benign. The parentheticals are helping the reader by eliminating the need to look something up. Maybe now they don’t even need to read the cases? (Put a pin in that and grab a piece of yarn.)
Cynical version of benevolent and benign. Reading cases and authorities sucks. Is there something we can do so that I don’t have to read this stuff?[7]
Edgy and idealistic. We can’t just take the powerful at their word on things. We the people expect those explanations. We the people will check them. We need to usher in a new era of responsibility.
Cynical and capitalistic. Westlaw and Lexis were hot new products. More citations and explanations mean more need for cite-finding-and-checking tools.[8]
Ingeniously subversive, institution-shaking, and prescient. Generative AI tells me that the core precepts of critical legal studies are that law is politics, a social construct favoring the powerful and perpetuating injustice. Further, legal texts are fundamentally indeterminate, and their “interpretation” is just the expression of personal and political biases. In other words, judges and lawyers, that stuff you are saying and citing―critical legal studies is calling “bullshit.”
So what if we put some rule in place that made all that BS look like the jumble of handpicked, biased crap that it is? Better yet, let’s have a rule that challenges America’s best law students―those with bottomless zeal for this merde, especially those who clerk―to pile it on thick in an esoteric “present participle” style that is practically unreadable. And as for quotations, well, this new Lexis and Westlaw invention puts quotations at our fingertips, and they will support us in this change. (Pin and yarn on that, too, if you’re a really paranoid type.) One citation or quotation after another. Indeed, you can find one for anything. It’s never been easier. Something can be cited for everything. It’s all sort of equivalent now, isn’t it?
So let’s imagine a world with so much information, so many claims to authority, so much noise that you just couldn’t sort it out anymore. In that world, pretty much anything goes. And how would the lawyers stop it? Have you tried reading their stuff? Impossible. They’re like weird robots: beep-bop-boop, holding this and that; beep-bop-bop-boop, observing this and that; beep-bop-boop, “It is a Constitution we are interpreting.”
Could someone see that world manifesting in 1991? And what better way to distract from a parenthetical plot to transform legal writing into The Great Pacific Garbage Patch of citations and blather, with a cite and explanations for everything, than to feature “political correctness” and elimination of parallel citations, which predictably the reviewers focused upon? Meanwhile, no one really notices Rule 1.5, and the legal establishment—even the conservatives—mindlessly follows it (when they’re not competing to see who follows it best), and they all make their writing and use of authority cacophonously ridiculous.
If it were intended, brilliantly subversive.
If you’ve been to a Continuing Legal Education class on Generative AI, you probably had to suffer through at least ten minutes on lawyers getting in trouble for citing “cases” that don’t exist.[9] If you haven’t heard, Generative AI will “hallucinate” cases. It’s kinda creepy and kinda fascinating.
Lost in that “news” is the reality that lawyers have been citing cases that they didn’t read―or didn’t read much―for a long time. Generative AI just created a situation where they would get caught. Good god, once it became a perceived “rule” in 1991 that we were supposed to hang a cite and maybe an explanation or a quotation on damn near everything, the proliferation of citing virtually unread cases has been endemic. At best, lawyers pluck snippets from Westlaw and call it good. Some of them pride themselves on their snippet foraging.
How the legal profession has run with Bluebook Rule 1.5 should be embarrassing. Too many cites, too many explanatory parentheticals, and too few good paragraphs about cases and authorities worth reading. Sometimes it’s like the high school policy debate crowd took over the profession and thinks that they can win on speed reading, evidence cards, dis-ads, and points. Indeed, maybe that’s all Rule 1.5 was, a triumph of some policy debate people and their love of cites.
I have a lot of sympathy for Barack Obama if he looked at that (even more if he saw its metastisization coming) and said, “Not interested.” I have a lot of sympathy if he looked at it and thought, “I have better things to read.” He really liked The Three-Body Problem, or so the sticker on my copy proclaims. I really liked it, too. There’s a lot to appreciate in a genius imagining the future, for better or worse.
There’s also a lot to appreciate in actually reading what you talk about in a brief (as opposed to just citing it and appending a parenthetical) and then talking about it like a normal human being. Unfortunately, Rule 1.5, new technology, and shortening attention spans have violently cut against both careful reading and talking like a normal human being.
I’m very curious to know the full story on Rule 1.5. I’ve hypothesized a bunch of possible stuff above. Some portion or mix of it must be true. I don’t think the subversive theory is the most plausible, just the most fun. As in The Three-Body Problem, I send out this signal to the great beyond to see what comes back.[10]
[1] https://excessofdemocracy.com/blog/2013/12/was-barack-obamas-greatest-contribution-to-legal-scholarship-the-bluebook
[2] See id.; see also James W. Paulsen, Book Review: A Uniform System of Citation, 105 Harv. L. Rev. 1780 (1992).
[3] David E.B. Smith, Just When You Thought It Was Safe To Go Back Into the Bluebook: Notes on the Fifteenth Edition, 67Chi.-Kent L. Rev. 275, 283 (1991).
[4] If you want to give little details, fine. Here’s a blurb from Bakke that’s parenthetically reasonable (sans citations):
[T]he reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins (1886) (Chinese); Truax v. Raich (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas (1954) (Mexican-Americans).
[5] Fred R. Shapiro & Julie Graves Krishnaswami, The Secret History of the Bluebook, 100 Minn. L. Rev. 1563, 1590-91 (2016).
[6] Id. and also fn.1 supra.
[7]In this vein, consider https://abovethelaw.com/2017/05/the-crazy-reason-why-barack-obama-didnt-want-to-be-a-supreme-court-clerk/
[8] Paulsen writes: “Although undoubtedly well intended, this decision underscores The Bluebook's unhealthy bias against state courts and bolsters West Publishing Company’s dominant position in the legal publishing market.” He also incredibly thought the elimination of parallel citations was the most significant revision.
[9]https://www.legaldive.com/news/chatgpt-fake-legal-cases-generative-ai-hallucinations/651557/
[10] In writing this up, I had occasion to revisit Richard Posner’s articles about The Bluebook: Goodbye to The Bluebook, 53 U. Chi. L. Rev. 343 (1986), and The Bluebook Blues, 120 Yale L.J. 850 (2011). They are wonderful. I miss him.
