Last month in this three-part series the Legal Writer discussed the New York Law Reports Style Manual, called the Tanbook, and gave some practical advice on the basics of citing. In this issue, the Legal Writer discusses Bluebook mistakes and how to fix them using the St. John's Law Review's New York Rules of Citation and the Tanbook, when submitting legal papers to a New York State court.
The Bluebook (20th ed. 2017)
The Bluebook1 is the correct resource for law journals, federal court, moot court briefs, and international materials. Despite the Bluebook's ever-increasing popularity, it fails miserably when it comes to New York citations. Every rule and example in the Bluebook violates how a practitioner, judge, or academic should cite New York authorities.
The Bluebook instructs readers to use unofficial reporters in citations.2 This contradicts New York's CPLR 5529 (e), which provides that "New York decisions shall be cited from the official reports, if any. All other decisions shall be cited from the official reports, if any, and also from the National Reporter System if they are there reported." The Bluebook's rule also contradicts Rules of the Court of Appeals (22 N.Y.C.R.R.) §§ 500.1 [g], 510.1 [a]; Rules of the Appellate Division, First Department (22 N.Y.C.R.R.) § 600.10 (a) (1); and Rules of the Appellate Division, Fourth Department (22 N.Y.C.R.R.) § 1000.4 (f) (7).
New York courts require judges to cite New York's official reporters. The official reports contain the final version of decisions. The unofficial reports are published by West, a subsidiary of Thomson Reuters, and are organized by regions (Atlantic, North Eastern, North Western, Pacific, Southern, South Eastern, South Western). West also publishes specific reporters for New York (New York Supplement) and California (California Reporter).
The official reports are published or approved by the government. For example, the United States Reports (U.S.), published by the Reporter of Decisions, contains the United States Supreme Court opinions.3 When Supreme Court decisions are first announced, they're made available to the public by the Supreme Court's Public Information Office. These "Bench Opinions" are picked up immediately by publishing companies.4 A Slip Opinion is released a few days later, usually containing corrections and edits.5 Before being published in the preliminary prints, "all of the materials . . . undergo an extensive editing and indexing process, and permanent page numbers are assigned that will carry over into the bound volume. Copies of the page proofs to be published in a preliminary print are sent to a commercial printing company under contract with the GPO [Government Publishing Office], and that company prints the pamphlets in accordance with the Court's specifications."6 Once finalized, the opinion will appear in the bound volumes.7
There are two unofficial reporters for U.S. Supreme Court decisions. West publishes the Supreme Court Reporter (S. Ct). Lexis publishes the United States Supreme Court Reports, Lawyer's Edition (L. Ed., L. Ed. 2d). West and Lexis will publish a U.S. Supreme Court decision as soon as it's available from the Supreme Court's Public Information Office. Although the Supreme Court recognizes and allows these unofficial reports to publish their opinions, the Supreme Court website consistently cautions that "[o]nly the bound volumes of the United States Reports contain the final, official text of the opinions of the Supreme Court."8 The Bluebook correctly tells users to cite the Official U.S. Reports for U.S. Supreme Court decisions.9
The New York State Law Reporting Bureau (LRB) goes through a similar process with New York opinions and "performs the most comprehensive and meticulous editing of any Reporter in the Nation."10 New York opinions first appear in the New York Slip Opinion Service on the LRB's website. Then, the LRB, "[g]uided by the Style Manual [the Tanbook] . . . verif[ies] every citation - cases, statutes, legislative history, administrative regulations, periodicals, treatises, etc. - and every quotation, by comparing it to the original source."11 Following this thorough edit, the opinions are considered officially published.
But private publishers, like West and Lexis, publish opinions as soon as they're available. Thus, critical differences appear in the official and unofficial reports. Attorneys might easily misquote if they use the unofficial reports. The Bluebook should remedy this issue by telling its users to use the official reporters when a state law requires it - as New York does. In the meantime, if using Westlaw, a quick click on the hyperlink "View New York Official Reports version" in the top left-hand corner of a case will ensure you're reading the most accurate source.
The Bluebook's advice also overlooks a central aspect of a citation's purpose: to tell the reader where the source can be found. Despite the Bluebook's instruction that "[e]very case citation must indicate which court decided the case,"12 its rules obscure that information. For the Appellate Division, the Bluebook says cite the court as "N.Y. App. Div." and N.Y.S. or N.Y.S.2d. But this citation doesn't distinguish between appellate departments. New York practitioners must indicate which appellate department decided the case. Otherwise, a trial judge won't know whether the authority is binding. It's ironic, then, that the Bluebook directs students and lawyers to "[o]mit the jurisdiction and the court abbreviation if unambiguously conveyed by the reporter title." Bluebook's Example: "DiLucia v. Mandelker, 493 N.Y.S.2d 769 (App. Div. 1985) NOT DiLucia v. Mandelker, 493 N.Y.S.2d 769 (N.Y. App. Div. 1985)."13 Unfortunately, neither citation conveys which appellate department reviewed this case. Correct Example: (DiLucia v Mandelker, 110 AD2d 260 [1st Dept 1985]).
The Bluebook gives similarly incorrect advice when it tells subscribers this: "Do not indicate the department or district in citing decisions of intermediate state courts unless that information is of particular relevance."14 The example for that rule: Shiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944). But that's a Supreme Court, New York County, case, not one with a department or district. Besides, the department, district, or county is always relevant, for the same reasons a lawyer must always cite as relevant a federal circuit or district. Having different rules for state and federal courts demeans the state courts.
The Bluebook is confused about not just New York's Appellate Division and New York's trial courts. The Bluebook is also confused about New York's highest court. For the Court of Appeals, the Bluebook tells us to cite N.E. or N.E.2d.15 Even when (now ancient) New York lawyers used hard copies of the reporters, they used the N.Y.S. reporter to cite the Court of Appeals. They almost never used the expensive and (for New Yorkers) mostly irrelevant N.E. reporter.
Besides, you shouldn't cite the unofficial reports. And if you do cite them, you'll need to add the New York abbreviation (N.Y.) in a case citation's parenthetical. There's no reason to add this extra information when you cite the N.Y. Official Reports; every New York practitioner knows that the New York Reports contain only New York cases. Thus, in "Short Form Citation," the Bluebook uses Palsgraf as an example: Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928) (Cardozo, J.), and then offers three short forms: Palsgraf, 162 N.E. at 100 OR 162 N.E. at 100 OR Id. at 100.16 All these short-form citations are incorrect for New York: The Bluebook uses the unofficial reporter (N.E.) instead of the Official Reporter (N.Y.).
Correct Tanbook Example: (Palsgraf v Long Is. RR.. Co., 248 NY 339 ). Short Form: (Palsgraf, 248 NY at 342) OR (248 NY at 342) OR (Id. at 342). Note that the Tanbook's (correct) example is concise. The reporter (248 NY 339) tells the reader that the N.Y. Court of Appeals decided this case. Thus, only the year is necessary in the parenthetical.
Pre-internet, citing the wrong reporter could cost a party its case. On its website, the LRB lists several cases where the "courts point out [that] members of the bar who fail to cite to the Official Reports do so at their own peril."17 For example, in Disenhouse Assoc. v Mazzaferro (135 Misc 2d 1135, 1137 n [Civ Ct, NY County 1987]), the LRB explains that "[t]he court note[d] that contrary to CPLR 5529 (e) petitioner has cited several cases to the unofficial reports only. Since, as should be made known to the Bar, only the Official Reports are available in the chambers of the Judges of the courts, the practice shouldn't be followed if counsel seeks to ease the court's task in reading briefs."18 Judges now have access through Westlaw and Lexis to all reporters. But lawyers who use unofficial citations are still forcing judges to double-check their quotations and citations to ensure they're accurate.
The Bluebook also endorses parallel citations. It tells users that "many state rules require that citations to state court decisions include a citation to the official state reporter, followed by a parallel citation to a regional reporter."19 In its section "Parallel Citation in State Court Documents," the Bluebook notes that "[l]ocal rules sometimes require citation of both the official state reporter and the unofficial regional or state-specific reporter. This is called parallel citation. Where a pincite is necessary, include one for each reporter citation. When the state or court is clear from the official reporter title, omit it from the date parenthetical." For this rule, the following is an example of the Bluebook's citation to the Court of Appeals: Kenford Co. v. County of Erie, 73 N.Y.2d 312, 537 N.E.2d 176, 540 N.Y.S.2d 1 (1989).20 But New York courts don't need or want parallel citations, and the Official Reports won't publish them.21 Using them in court documents is impractical. Parallel citations take up unnecessary space, especially when a judge will look only at the official citation.
In the Bluepages, which are directed to practicing lawyers, the Bluebook gives jurisdiction-specific citation rules. The Bluepages list resources for New York practitioners: N.Y. Ct. App. R. 500.1(g), 510.1(a), New York Law Reports Style Manual (2012), and New York Rules of Citation (5th ed. 2005), published by the St. John's Law Review, and N.Y. C.P.L.R. 5529(e) (McKinney 2003). But the Bluebook itself ignores these sources.
Talking about the CPLR, New York's Civil Practice Law and Rules, the Bluebook will give you nothing but the blues. T1, at page 281, tells Bluebook adherents to cite the CPLR "statutory compilation" either N.Y. C.P.L.R <rule no.> (McKinney <year>) OR as N.Y. C.P.L.R <rule no.> (Consol. <year>). Leave aside that the CPLR is a set of rules, not statutes. The reality is that few now use the hard-bound volumes from the McKinney's Consolidated Laws of New York Annotated (West) or the New York Consolidated Laws Unannotated (LexisNexis); fewer still know how to find a volume's compilation date. Lawyers these days use internet sources like Westlaw, Lexis, and Bloomberg, and they're always current. And New York lawyers know that the CPLR - a New York lawyer's bread and butter - is from New York. When you cite "N.Y. C.P.L.R" to a New York judge, you're marked, by judge and adversary alike, as a Bluebook nerd who doesn't practice much in state court.
Once you recognize the incongruities in the Bluebook and the Tanbook, it's not hard to spot incorrect examples for New York in the Bluebook. Bluebook Example: Penn Central Transportation Co. v. City of New York, 366 N.E.2d 1271 (N.Y. 1977). Again, this citation is incorrect because the reporter is wrong for New York. In Pending and Unreported Cases, the Bluebook again cites the New York Appellate Division incorrectly: Kaye v. Trump, No. 5128, slip op. at 1 (N.Y. App. Div. Jan. 29, 2009), http://www.nycourts.gov/reporter/3dseries/2009/2009_00452.htm.22 In "State Statutes," the Bluebook instructs that "[f]or state statutes, cite an official code whenever possible." Bluebook's Example: N.Y. Bus. Corp. Law § 717 (McKinney 2000).23 But the year 2000 for this 1989 statute is just a useless compilation date. The Bluebook also cites the New York Law Journal strangely. In "Periodical Materials" and Short Citation Forms, the Bluebook uses an example from the New York Law Journal: New York County Lawyers Association: Edwin M. Otterbourg To Represent the Association in House of Delegates of American Bar Association, 124 N.Y. L.J. 1221 (1950).24 The Bluebook puts a space between the N.Y. and the L.J. and confusingly capitalizes the "to" in the title - contradicting its own Rule 8 about capitalizing prepositions in a title.25 (Elsewhere, the Bluebook cites the New York Law Journal differently: Mishra v. Grohman, N.Y. L.J., Dec. 5, 1990, at 1 (D. Mass. Dec. 4. 1990) - at the same time not realizing that the New York Law Journal doesn't publish federal opinions from Massachusetts.)
Discrepancies like these have brought the Bluebook under scrutiny. In 2011, Judge Posner wrote a critique of the Bluebook, in which he opined that "[t]he Bluebook's subtitle - 'A Uniform System of Citation' - is a bid for monopoly."26 In 2016, the Marquette Law Review published "Shedding the Uniform: Beyond a 'Uniform System of Citation' to a More Efficient Fit."27 This article questions the cost of "uniformity" when the Bluebook citation system is not superior.28 The author notes that the Bluebook "demonstrates how elite elements of legal academia and the legal profession have come to value conforming to the last, non-italicized period of a citation system . . . over serving clients."29
New York Rules of Citation: Go Red Storm!
Good lawyers should cite New York's Tanbook. If they feel attached to the Bluebook, they should at least learn how to use the Bluebook correctly for New York courts. A helpful resource in this area is the New York Rules of Citation, published by St. John's University School of Law's Law Review. The sixth edition, published in 2011, explains the Bluebook's deficiencies and tells lawyers, law students, and law journal editors how to correct them. The sixth edition, available for purchase through St. John's Law Review30, adds additional examples of legislative and administrative materials.
The Rules of Citation notes that "[c]ontrary to rule 10.3(b) of The Bluebook . . . it is the policy of the St. John's Law Review to give as complete information as possible when citing New York authority."31 The guide abides by four main rules: "(1) Where appropriate, the department, circuit, district, or county is included in the citation of all statewide courts; (2) The name of local government entity is included in the citation of all local courts; (3) The county is included in the citation of all New York City courts . . . (4) When a court consists of both trial and appellate parts, the appellate part is included in the citation."32 The Rules of Citation provide the corresponding Bluebook rule for each example, allowing a reader to cross-reference the Bluebook.
In the next issue of the Journal, the Legal Writer will conclude this three-part series by discussing the Indigo Book, ALWD, and tips for using Lexis and Westlaw. It'll also include a chart showing the differences in several citation manuals.