Why "The Bluebook" Matters: The Virtues Judge Posner and Other Critics Overlook

Bret D Asbury; Thomas J.B Cole

The Bluebook has long been under siege. For decades, each new edition has invited fresh criticism, frequently harping on two major themes: The Bluebook’s ever-increasing page count and its general fastidiousness. The 19th edition, published in 2010, proved no exception. Most notable among the latest critiques is Judge Posner’s The Bluebook Blues, which, upon publication in The Yale Law Journal last year, attracted a great deal of attention and received widespread praise from numerous legal commentators. Lamenting the lack of diversity of opinions relating to Judge Posner’s article and hoping that someone would finally defend The Bluebook, we were delighted to discover last spring a Response to The Bluebook Blues in First Impressions, the Michigan Law Review’s online companion. We were disappointed, however, by the end of the first sentence: “Judge Richard A. Posner’s recent critique . . . is surely a refreshing voice of sanity for the multitudes of law students and legal professionals who have had occasion to consult it.” This was not to be the robust defense of The Bluebook we had envisioned. Much of the writing on The Bluebook—including The Bluebook Blues and the First Impressions Response—repeats a number of well-worn criticisms, some of which, Judge Posner notes, he himself first put to paper twenty-five years ago. That said, Judge Posner’s most recent voicing of these criticisms is particularly effective in making the case against The Bluebook and conveying his overall belief that it is “a monstrous growth . . . that serves obscure needs of the legal culture and its student subculture,” a work that is “elaborate but not purposive.” Judge Posner’s view is by no means atypical—in surveying an array of writing on The Bluebook, we have yet to discover a single commentator who has seriously considered whether its “labyrinthine rules” which annually plague a fresh crop of future lawyers might serve a purpose other than some form of ritualistic hazing. Yet The Bluebook’s much-maligned strictures and level of detail are both meaningful and useful for fledgling lawyers in at least two ways. First, The Bluebook serves as a pedagogical tool that reinforces the mode of legal reasoning and analysis taught in law school and used by lawyers each and every day. Being able to recognize and understand the importance of seemingly inconsequential distinctions and to situate ambiguous examples within a framework of rules is as essential to a good lawyer as it is to a good law-review editor. Second, The Bluebook’s seemingly maniacal obsession with consistency can be defended on the ground that it both mirrors the law’s ideal of treating like cases alike and, more broadly, reflects the reality that consistency and clarity are inextricably linked. Though the consistency The Bluebook seeks to achieve will always prove to be elusive at the margins, we believe that for a reference manual to be useful, it must provide a reasonable path toward clarity. The Bluebook’s growth in recent years—maligned by Judge Posner and numerous likeminded critics—should thus be viewed as a necessary step toward achieving coherence and should be subsequently understood as a positive rather than negative. We address these points in turn.

Why "The Bluebook" Matters: The Virtues Judge Posner and Other Critics Overlook

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Why "The Bluebook" Matters: The Virtues Judge Posner and Other Critics Overlook

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