Iconic Legal Guide Faces New Challenges

At first glance, the navy spiral-bound tome known as the Bluebook seems rather unremarkable. But beyond its covers, the book details thousands of obscure and specific legal citation rules that require more than a thousand hours to compile. The massive, 582-page legal citation manual inspires both devotion and dread in its users—law students, scholars, and lawyers—who require its guidance for their professional work.

Whether loved or hated, the nearly-100-year-old Bluebook is necessary for most legal work, scholars say. Today, it is published jointly by the Harvard Law Review Association—which completes a bulk of the editorial work—University of Pennsylvania Law Review, Columbia Law Review, and the Yale Law Journal. For decades, Harvard has claimed its dominance in the Bluebook’s origins and production—a claim that has, for the most part, gone unchallenged.

But now, some scholars are questioning Harvard’s narrative. The notorious Bluebook is at the center of not one, but two controversies challenging Harvard’s historic monopoly over its production.

SETTING THE RECORD STRAIGHT

Did the Bluebook really originate at Harvard? That is the probing question two Yale law librarians asked in a recent and prominent article challenging Harvard’s narrative of the Bluebook’s founding.

Instead, the librarians— Fred R. Shapiro and Julie Graves Krishnaswami—argue that Yale published the first version of the Bluebook.

Harvard’s claim is based on an account set by Erwin N. Griswold, former Law School dean and U.S. Solicitor General, who in a famous 1987 essay maintained the book was first produced at Harvard in the 1920s. The other three universities later began to contribute, and the first edition with all four universities listed on the copyright was published in 1934.

Gannett House has been the home of the Harvard Law Review since the 1920s. By Thomas W. Franck

Shapiro and Krishnaswami refute that narrative, which they call “wildly erroneous” but currently the “canonical account” of the manual’s origins. Their challenge rests on a discovery Shapiro made around 15 to 20 years ago in Yale Law Library’s rare book collection: one page from a booklet of legal citation rules that appeared to be a precursor to Harvard's version.

If Shapiro and Krishnaswami are correct, the Yale booklet, dated five years earlier than Harvard’s supposed first edition, could arguably be the original version of the Bluebook. It is not immediately clear, though, whether the Yale booklet is indeed the citation manual’s first version.

“It is ironic that a style manual that sets forth overwhelming detail about the format of accurate citations to authority, and that fosters a climate in which every assertion in legal writing must be supported by such citations, should have its own origins and history thoroughly mired in inaccuracy,” the librarians wrote.

For Shapiro, the challenge to Harvard’s narrative is vital; because the Bluebook is “an important institution in law, its history is of some importance,” he said.

“I just wanted to set the record straight as a matter of historical truth,” Shapiro said.

Still, Shapiro said their discovery of the manual’s possible New Haven origins is not necessarily a point of pride for Yale.

“I don’t think that it was any kind of enormous victory for Yale, particularly because there is this sort of love-hate relationship with the Bluebook,” Shapiro said.

The four universities in charge of creating the Bluebook have remained largely silent on the challenge to the book’s origins; together they said they are focused on the present, not the past.

“Whatever the ancient history might be, today we’re doing all we can to be the best possible stewards of a resource used by so many throughout the legal world,” they wrote in a joint statement.

Individually, Harvard Law Review declined to comment on the record for this story.

A COPYRIGHT QUANDARY

Harvard faces another, broader challenge from scholars who claim no single university or group of universities should be able to monopolize rights to the citation system.

Carl Malamud of Public.Resource.Org and New York University Law professor Christopher J. Sprigman argue that a universal citation system like the Bluebook’s is not copyrightable. Even more, they wrote in a 2013 letter to Law School Dean Martha L. Minow and faculty, “enforcing a monopoly” over the manual in the Internet age is “immoral and nonsensical.”

In an effort to democratize legal writing, Malamud and Sprigman are launching BabyBlue, a free online resource that will explain the underlying citation rules of the Bluebook, but use different examples. BabyBlue is in the final stages of development and is set to be released soon, according to Malamud.

But the Harvard Law Review will not let BabyBlue be published without a fight.

In a series of strongly-worded letters spanning over the last two years, Harvard Law Review’s lawyers have repeatedly warned Malamud and Sprigman to stop their efforts before they violate copyright. The latest correspondence, dated December 24, requests that Malamud and Sprigman provide the Harvard Law Review Association with advance copies of BabyBlue.

Spelling out worries that the word ‘Blue’ in ‘BabyBlue’ will cause users to erroneously associate the new site with The Bluebook, the letter also demands that they change the title completely.

Describing the recent correspondence as “another keep-off-the-grass letter” Malamud said, “They haven’t seen anything I’ve done, [but] it looked like they were freaking out.”

Malamud said he has not furnished any documents for the lawyers and will not be changing BabyBlue’s name. He said he has never communicated directly with students at Harvard Law Review.

“I think that if they are worried, they’re overly worried and they ought to just pick up the phone and talk to me,” Malamud said.

Harvard Law Review’s efforts to stop BabyBlue will likely prove futile, according to some legal experts.

Harvard Law Professor Jeannie C. Suk said the Harvard Law Review would not have grounds to claim copyright infringement unless BabyBlue copies specific examples used in the Bluebook.

“It seems to me that trying to use copyright to protect the system of citation rules themselves is not promising, particularly given the already widespread adoption of those rules in the legal profession and by courts,” Suk wrote in an email.

Malamud insists that BabyBlue does not replicate Bluebook’s examples.

“I’m pretty confident that after they take a deep breath and look at what we’re doing, they’re going to look at it and say ‘okay’,” Malamud said.

—Staff writer Claire E. Parker can be reached at claire.parker@thecrimson.com. Follow her on Twitter @ClaireParkerDC