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The “Trap” of Neutral Citation? A Response to Professor Dippel

In the Spring 2011 issue of Law Library Journal (Vol. 103, No. 2), an article by Horst Dippel, Professor Emeritus of British and American Studies at the University of Kassel in Germany, caught my eye. The Trap of Medium-Neutral Citation, or Why a Historical-Critical Edition of State Constitutions Is Necessary, 2011 Law Libr. J. 14, 103 Law Libr. J. 219, is actually a very fascinating article that discusses the travails of researching historical state constitutions. However, there are two aspects of this article that bothered me.

First was the misleading title: The Trap of Medium-Neutral Citation. Although I'm sure I would have read it eventually, the ominous title was what impelled me to read the article immediately upon receiving my copy. This title clearly implied that a main thesis (if not the main thesis) of the article was to be some kind of argument against medium-neutral citations, most likely emphasizing citations to state constitutions. Indeed, the abstract provided at the beginning of the article reinforced this implication by promising to "discuss[] problems . . . with citing to state constitutions using medium- or format-neutral citations" (abstract, at p. 219).

Unfortunately, Prof. Dippel spends all of one paragraph summarily rejecting neutral citations for constitutions because such a citation "presupposes that the quoted text is always the same, independent of the particular vendor or medium from which it is taken" (¶ 1, at 219). Later in the article, when he briefly mentions neutral citations again (¶ 15, at 224, ¶ 21, at 225, and ¶ 38, at 231), it becomes clear that he is referring specifically to historical versions of state constitutions compiled by less-than-conscientious publishers, not to current, official texts.

This focus on historical documents leads me to my second criticism of Prof. Dippel's article: His apparent animosity towards neutral citations stems from an incomplete reading of the relevant legal citation standards. Right off the bat (¶ 1, at 219), Prof. Dippel establishes that his criticism of neutral citations derives primarily from Peter W. Martin's Introduction to Basic Legal Citation, as Prof. Martin interprets The Bluebook (19th ed. 2010). Prof. Dippel unfairly derides both of these sources for failing "to be aware of the flaw" in citing to state constitutions simply by "articles, sections, clauses, and subsections" (¶ 1, at 219). Neither source is worthy of such disrespect (at least as far as this issue goes).

To begin with, Prof. Martin's work is, as the title clearly states, an Introduction to Basic Legal Citation. There are three components to this explicitly descriptive title. First, it is an "introduction"; it "is not a substitute for a comprehensive reference" (§ 1-100). Similarly, it is "basic" and "aims at building a basic mastery of 'legal citation' as codified in" more comprehensive citation manuals (§ 1-100). Finally, it deals with "legal" citation. As Prof. Martin explains, "legal citation . . . is a standard language that allows one writer to refer to legal authorities with sufficient precision and generality that others can follow the references" (§ 1-200). In addition, Prof. Martin concedes that his guide "is focused on the forms of citation used in professional practice rather than those used in journal publication" (§ 1-100).

Although it is sometimes necessary for an attorney or a judge to cite to historical versions of constitutional provisions, such writers (as well as most legal scholars) usually only need to cite to that text which currently enjoys the status of full legal authority. Accordingly, I think it entirely reasonable for an introduction to basic legal citation to instruct on the "widely used form of citation" for constitutions, which just happens to be "vendor- and medium-neutral" (Dippel, ¶ 1, at 219 (quoting Martin, § 2-300)).

Despite Prof. Dippel's heightened expectations of Prof. Martin's work, there is still a more disturbing problem with his reading of the standards; namely, that he apparently didn't read the standards in their entirety. This is particularly disconcerting for someone arguing for the necessity of historical-critical editing. If one reads the sections Prof. Dippel references all the way through, both Prof. Martin's guide and The Bluebook make it clear that the neutral citation forms they prescribe are meant for current, official texts.

Professor Martin's section on constitutional citations concludes with the guidance that "[n]o date is required unless the citation is to a provision or version of the constitution no longer in effect" (§ 2-310). Indeed, even in the section from which Prof. Dippel explicitly quotes, Prof. Martin warns that constitutions can be changed (albeit not as easily and, hence, frequently as statutes) and that such change "raises a risk . . . that the text . . . to which a writer refers and the text consulted by a reader . . . may be different. . . . Addressing this possibility calls for both writer and reader to pay serious attention to the date of the compilation relied on by the writer. That information must be delivered in some non-ambiguous fashion" (§ 2-300). Although it is absent from Prof. Martin's guidance regarding constitutions (again, because this introductory work is focused primarily on current versions of legal texts), his instructions for statutes, which he makes clear are analogous, include the following admonition: "If an unofficial commercial codification is relied upon, it is customary to use that product's branded abbreviation . . . and to place the publisher's name, brand, or online source (abbreviated) ahead of the currency information in the parentheses" (§ 2-330).

The Bluebook provides similar guidance. After providing the general instruction on citing to current, official constitutional provisions, Rule 11 then explains what alterations are required for citations to constitutional texts that have been repealed, amended, "totally superseded or are otherwise no longer in effect." Although the Rule 11 instruction to "indicate parenthetically the name of the publisher, editor, or compiler" is explicitly intended for "citing a constitution contained in an electronic database," The Bluebook provides additional guidance that allows one to apply this instruction to print works as well. In its Introduction, The Bluebook provides that "when citing material of a type not explicitly discussed in this book, try to locate an analogous type of authority that is discussed and use that citation form as a model" (p. 1). State constitutional materials published in historical compilations certainly fit the bill "of a type not explicitly discussed in" The Bluebook. Alternatively, Rule 1.6(a)(ii) allows bibliographical information for the relevant compilation to be appended to the end of a citation introduced by the explanatory phrase "reprinted in". By adding the particular compiler and date of compilation to any of the constitutional documents Prof. Dippel discusses, either in a parenthetical or in a "reprinted in" clause, one can easily transform the general neutral citation format to a "vendor-specific" one that should alleviate Prof. Dippel's misgivings.

The topic of neutral citation for all primary legal authority was a hot topic back in the 1990s (see, e.g., Am. Ass'n of Law Libraries, AALL Task Force on Citation Formats Report March 1, 1995, 87 Law Libr. J. 582, ¶ 1 (1995)), and it remains an issue of great concern to many in the legal community today. (See e.g., Ian Gallacher, Cite Unseen: How Neutral Citation and America's Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law, 70 Alb. L. Rev. 491 (2007); Peter W. Martin, Neutral Citation, Court Web Sites, and Access to Authoritative Case Law, 2007 Law Libr. J. 19, 99 Law Libr. J. 329; Betsy McKenzie, Vendor Neutral Citation Is Getting Some Traction, Out of the Jungle (Mar. 2, 2011, 1:00 PM); (last visited July 19, 2011). I, for one, hold out hope that, if one good thing is to come from the "technologization" of the library and legal research in particular, it is that an universal system of legal citation based on the ideals of the neutral citation movement is in the offing.

Overall, I really enjoyed Prof. Dippel's article. It was very interesting, and I believe he made his case for the necessity of a historical-critical compilation of state constitutional texts. I commend him on his achievement and encourage everyone to read it. However, his piece would have been clearer and more powerful if he had stuck to that topic and stripped away the crutch of an ill-conceived neutral citation bogeyman.


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