In many First Nations of what we now call Australia, people have and have had immense respect for the dead. This respect manifests linguistically — one should not utter the name of a person who has died or a word that sounds like the name of such a person. To the chagrin (and thinly veiled excitement) of historical linguists, words for everyday objects, places, and concepts gradually ebb in favor of new compounds and borrowings to avoid naming the dead, which, as you can imagine, might make it more difficult to trace the ancestries of the languages involved. But what does any of that have to do with Bluebook citations?
In March of this year, Professor David Ziff, a veritable citations scholar, published an article debating the merits of Bluebook Rule 10.7.1(d), commonly known as the “slave case” rule. Under the heading of “Explanatory Phrases and Weight of Authority,” the rule reads as follows:
Slave Cases. For cases involving an enslaved person as a party, use the parenthetical “(enslaved party).” For cases involving an enslaved person as the subject of a property or other legal dispute but not named as a party to the suit, use the parenthetical “(enslaved person at issue).” For other cases involving enslaved persons, use an adequately-descriptive parenthetical.
- Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.
- Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).
An abridged history of the rule’s already extensive debate goes like this: Professor Justin Simard, director of the Citing Slavery Project, argued in a 2020 Stanford Law Review article that “[c]ourts routinely cite [slave] cases without acknowledging that they may no longer be, in a formal sense, good law.” As one suggestion, he proposed a Bluebook rule of almost exactly the same form as what the most recent edition of the Bluebook adopted in Rule 10.7.1(d).
Predictably, the seeds of dissent sprouted. Professors William Baude and Stephen Sachs contended that the rule is “wrong,” “legally misleading, morally misguided, and inconsistent with the goals of good scholarship.” Professor Joshua Blackman wrote that this rule is tantamount to “cancel[ing]” cases. In response to the former two, Professor Simard argued the rule encourages “careful and accurate” citations by acknowledging the ways cases might rely on slavery in their reasoning.
In this most recent addition to the Great Conversation, Professor Ziff injected a nuance. He claimed that the rule is “in the wrong part of the book.” More precisely, he thinks the rule should be not in the Bluebook’s Whitepages where it currently is, but in its Bluepages — the difference being that the Whitepages apply to scholars and law reviews while the Bluepages apply to courts and practitioners. Professor Ziff’s article noted that the justification of the rule in Professor Simard’s original article never once mentioned use in law reviews and fit courts much better. He “generally agree[s] with Professor Baude and Professor Sachs that the rule is a poor fit for academic writing,” but that it would be good for the rule to “facilitate some reflection and add a bit of a speed bump before a lawyer or a judge relies on a slave case as authority.”
Table the legal merits of the rule and the fact that this is coming from a recent law graduate with a Bluebook-addled brain for a second. The debate thus far has lacked two theories — linguistics and etiquette. Professor Ziff wrote that the Bluebook is “just a citation guide” and “not a moral document” while Professor Baude and Professor Sachs argued that singling out slavery for attention implies caring less about the other atrocities sanctioned by our august government. In fact, the Bluebook itself is a moral document, and expressio unius dreams of my LegReg professor aside, Professors Baude and Sachs miss the mark. The rules of etiquette and language make it quite clear that calling attention to specific things can indeed be right and proper.
That we should give the Bluebook moral authority (hint: we shouldn’t) isn’t the claim here. The claim is that choices in citation format, strange as it sounds, have moral consequences. Citations are language. And, enforcement mechanism or not, the Bluebook prescribes how we should use that language in a particular context. Professor Ziff acknowledges that citations comprise part of the “chain novel” of the law, and the Bluebook — by telling people, judges, and scholars how to cite — makes moral choices.
Professor Benjamin Eidelson recently in his article The Etiquette of Equality explored this tendency to prescribe and proscribe language. Familiar examples of this broader debate would be “slave” versus “enslaved person,” “women” versus “females,” “nigger” versus “negro” versus “black(s)” versus “Black(s),” deadnaming, and gender pronouns. He shows why “even though these norms may be quite arbitrary in content, they have real moral weight” and how “there may often be a powerful moral case for each of us as individuals to act in ways that our community’s operative respect norms demand, even if we believe both that the norms themselves are in need of reform and that our collective observance of them harmfully fuels and entrenches them.”
The Bluebook inescapably forms part of that process and contributes to the sociolinguistic pot. To say that we should put “(enslaved party)” in citations or not is a choice that must be made and has moral weight. To further illustrate the point, the Bluebook has a special citation for the Bible (Rule 15.8(iii)). Not the Qur’an or the Talmud or the Dao De Jing or the Upanishads. The Bible. Should I cite the Qur’an, which traditionally follows a similar but not identical citation pattern as the Bible, as a mere book? The Harvard Law Review did in 1968 but followed a more traditional Quranic citation form (thereby violating the Bluebook) in 2021. Should the apocrypha be cited according to the Bible rule? The Bluebook refers to that country in Anatolia as “Turkey” with an abbreviation of “Turk.” and not “Türkiye.” Further, the Bluebook has a rule respecting the surname-first ordering of Chinese names (Rule 20.2.4(b)(ii)), but not a similar rule for Japanese names, which follow the same tradition. These are choices, and they are moral choices. A textual reading of the most familiar of Bluebook rules commands that we use the names of deceased members of First Nations of Australia if and when they come up in cases — should it? Despite my own tendency to agree with a Du Boisian ideal of value-free science, the role morality of the scholar and the truth-seeking nature of scholarship do not exempt the writers of law review articles from the broader ubuntu of our society. We might even require such authors to be more careful with their words.
To refresh, Professors Baude and Sachs argue that “[s]ingling out the evil of slavery is understandable, but it also potentially downplays many other evils, some of which remain pervasive today. . . . [O]nce we recognize how many evils the law addresses, it’s no longer plausible to claim that citing these cases unflagged reflects any indifference to their moral contents.” Professor Simard’s response was to argue the legal centrality of slavery as opposed to other evils. Whether or not the strength of the counterexamples of cases like Buck v. Bell and the Marshall Trilogy proves to defeat Professor Simard’s argument, Professors Baude and Sachs’s hamartia lies elsewhere. Given that the Bluebook does not exist in a moral or linguistic vacuum and there exists a live movement to make special mention of slavery, not making that mention is socially and linguistically marked. If a movement to address the legacy of and single out coverture cases and Indian Law cases arises (or already exists), for example, then to single out slavery might trigger expressio unius — but the current situation is not one of mere abstract favoritism, as Professor Baude and Professor Sachs claim. And even if it were, it is entirely unclear why the solution would be to mark none instead of all.
A reasonable objection is that “(enslaved party)” is not actually part of the etiquette that permeates our society, so the comparison to ancient and traditional taboos of the First Nations is inappropriate. Like so many legal questions, the answer depends on the framing. For all the Citing Slavery Project might be, it is not a wide-reaching political or cultural movement. But to frame the rule of etiquette narrowly as “using (enslaved party)” misses the forest for the trees. The family of norms around language referring to historically marginalized communities form metaethical norms that say something like “Refer to people how they’d like to be.” and “Don’t forget the role of marginalized groups in history.” Using “(enslaved party)” is simply a subset of those metaethical norms manifested and made flesh.
And that manifestation — that moral choice — extends to the scope of the slave case rule, which is why there is value in applying the rule to scholars. The rule obviously applies to Dred Scott, but what about Lanier v. Harvard? In that latter case, the Supreme Judicial Court of Massachusetts determined the property rights to an image of an enslaved person by relying on precedent that, as a case comment in this issue of the Harvard Law Review contends, are arguably relevant only if the people in the image consent to being photographed — a hard sell for the enslaved. Lanier was decided in 2022, not 1822, but even still the slave case rule clearly applies to it textually, so the case comment applies it. (I know what you’re thinking, but no I didn’t write nor did I have substantial editorial input in that case comment.) The rule forces scholars to make moral choices not just about how they view our legal past, but also our legal present. This continued reckoning with the linguistic treatment of marginalized groups in society is a central current in the etiquette of equality’s mainstream discourse.
Of course, as Professor Eidelson points out, respecting the wishes of those who ask might incentivize them to ask for more even when little substantive legal value results. Maybe you personally think having law review editors agonize (as you can bet your bottom dollar we agonized) over whether the slave-case rule should apply to Lanier is a waste of invaluable time. But, as Professor Eidelson also makes clear, that is not necessarily a reason to reject these norms as individuals. And I would add to that (some) institutions. For all the hullabaloo and how much law students and legal practitioners love to hate it, the Bluebook is a small gnat trapped on our sociolinguistic web, and its writhing and wiggling is unlikely to significantly change the politics of race, slavery, and language. (The irony that every legal scholar I cite in this debate seems to be a white man is not lost on me, but it’s not like they poll us black (Black?) folks on such matters.)
“(enslaved party)” has been asked for and (half) answered. Professor Ziff gives a strong justification for expanding its recommended usage to practitioners and courts, and if Professor Eidelson’s insights teach anything, it should be a wariness to displace respect already conferred. The Bluebook is a moral document, and I hope those students that come after me will consider that and the importance of language when updating it, not only in the form of etiquette that the citations themselves represent but also in who has access and upon whom the rules are being imposed. The law needs it.