1. Many other disciplines manage to get along with the author/date citation system and no pincites — e.g., “Many scholars have argued that X (Jones 1994; Smith 2002), while other have suggested that Y (Johnson 2001).”

2. On the other hand, the fact that student editors look for pincites may help to avoid all-around embarrassments, such as the history profession’s bestowal of awards on the work of Michael Bellesiles (it was up to a few less-gullible journalists and bloggers to take a look at whether his sources checked out). Who knows how often scholars are able to get away with misattribution in disciplines where no one demands (let alone citechecks) a pincite.

But no one teaches law students about the differences between these types of writing and legal academic writing. Students are using what they’ve learned in one context and misapplying it in another, because no one has taught them anything different.

“How about the following meta-proposal: Any part of a citation should be omitted if it is clear from context, and leave it to authors’ and editors’ common sense. In fact, this general principle would simplify a great deal of citation worries. Start by assuming that a pincite, parenthetical, date, and so forth are required. Then, if any element is clearly redundant, or would not be helpful to a careful reader, strike it.”

What about the idea of *when* should a citation be required at all, which was part of the problem raised above? The “market proposal” is more meta and should be addressed.

I think that your proposed revision generally does a good job for many dictionary citations. (That said, there are many citations to dictionaries for which the word being defined is absolutely clear from context, so perhaps we need a (2a) in your new rule, that the parenthetical may be omitted or compressed if the word being defined and the definition are clear in context.) But I think that adding a new rule with multiple conditions also makes matters worse, by adding complexity and by making editors fret over whether a particular example falls inside or outside of the new rule. To use a statutory analogy, I’d prefer more citation decisions to be made with reference to purpose than to literal interpretation.

How about the following meta-proposal: Any part of a citation should be omitted if it is clear from context, and leave it to authors’ and editors’ common sense. In fact, this general principle would simplify a great deal of citation worries. Start by assuming that a pincite, parenthetical, date, and so forth are required. Then, if any element is clearly redundant, or would not be helpful to a careful reader, strike it. I think we might come out in very much the same way in most cases.

Very interesting discussion. I hope you can become un-anonymous at some point; you’re doing law review editors proud by your example. I don’t agree with all of your positions, but this kind of reasonable and well-reasoned close attention can also be one of the great advantages of the student-edited law review system. Many pieces really benefit from this style of back-and-forth.

If readers complain about sourcing, they can complain about the author, not the law review …. If the sourcing and citing are fine, the author will develop/maintain a good reputation as a scholar and have an impact. Otherwise, the author’s reputation will rightfully suffer.

So, how about it, law review editors? Your lives will be easier. Authors will be happier overall. And authors will have to take responsibility for their own research and citations. If articles are not properly sourced, then law reviews should not accept them for publication. Maybe then articles editors will focus more on the quality of the submission than on the reputation of the writer, and the best pieces will bubble up to the top.

I’ll concede that a parenthetical (which, by the way, is not required in your example) can illuminate things better than a pin cite can. But remove the parenthetical. Would it still have been clear to the reader what she is to look for in the M-W? Professor Kerr’s textual assertion is counting the number of bytes in a gigabyte, so a perceptive reader might have been able to glean that one must look for the definition of “gigabyte.” But that would not have been clear to every reader, perhaps not even to a majority of them.

The pin cite, then, clarifies things. The reader will turn to page 452, notice that word “gigabyte” is defined on that page, and find the necessary support. Now, is it a good practice to include a parenthetical when one cites to dictionaries? Absolutely. As in the example you’ve provided, it supplied clarity. Could we do without a pin cite in that example? Of course. But the BB rule is written not to require a parenthetical when citing to a dictionary (and we’ve seen from Professor Solove’s other post that some authors despise the parenthetical device).

Perhaps a law review editor could have let this one go, but in all likelihood, the pin cite was provided by Professor Kerr himself because the time spent looking it up is less than a minute when one has the 10th edition of M-W handy. But even if it was a HLR editor who insisted on a pin cite, what’s the harm?

In any event, the discussion in this thread is not about the use of pin cites alongside a helpful parenthetical. Your example, then, is not responsive. Consider this citation to a book: Author, Title 451 (publication year) (arguing X on page 451). In that example, do we need a pin cite? No. But a pin cite is a much cleaner way than is using a parenthetical. In your example of a dictionary, the parenthetical happens to be a cleaner way, but it’s only a function of a particular example. Perhaps your suggestion should be for the BB editors to revise it and (1) dispense with the pin cite requirement for dictionaries and (2) demand that a dictionary cite contain a parenthetical stating which word the reader is to look for. If that’s your suggestion, I’m with you.

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 492 (10th ed. 1996) (defining “gigabyte” as

“1,073,741,824 bytes”)

This particular entry is “buried” in the middle of the dictionary, the Blue Book says to pincite it, the Harvard Law Review does in fact pincite it, and who among us needs the pincite to find the entry for “gigabyte?”

If so, and if an author sends a piece that is not well-sourced but the law review decides it’s worthy of being published (because it will help the law review’s cite-o-meter?), then if the author does not want to do all the citations, publish it without citations. Apparently, according to the author, the piece is sourced enough. Fine — let the proverbial market decide. If it’s cited enough, most readers won’t mind. If it’s not, then readers will mind, and people will see that the author is not really much of a scholar in that the author is sloppy. Indeed, this market approach is probably the only way to resolve this dispute. Unfortunately, the resolution will take time and will not occur within the tenure of any law review editor who institutes the new policy. I also doubt law review editors will institute the policy, because they are too risk averse and worried about cite-o-meter issues.

Perhaps if law reviews stopped doing the work for big names, some people who are following the rules of good scholarship (whatever they are — that’s really the question in this thread) could get their papers well-placed. And big name authors who don’t will have to up their game if they wish to remain big names.

There are a couple of reasons. First, let’s take a very simple case: symposium papers. By and large, law reviews give out offers to authors before they can see the work product. Let’s say you are planning a symposium, which you expect to publish in your law review. You invite a bunch of smart people and you encourage them to participate by saying that symposium papers will be published in your journal. By the time you actually see the papers, you have already committed to publishing. Sure, you can bail out, but that can (and most likely will) hurt your journal’s reputation in the scholarly community. And whatever else you might be able to do, you can’t afford to create the impression that your journal might back out on a previous offer to publish a paper.

Now, of course your offer to these symposium participants might very well be contingent on the “good faith” effort by the authors to provide adequate citations. But there are several problems. First, this is hard to enforce. Law reviews could say, we’ll publish unless you fail to follow Bluebook, but that’d be too harsh. The Bluebook is meant to be broken from time to time. Second, law reviews could say, we’ll publish unless we deem your effort to fail the “good faith” standard. If you take this approach, some excellent authors might refuse to participate in the symposium because they don’t trust the law review editors’ judgment of what constitutes a “good faith” effort. So, despite the wishy-washy “papers might be published” language in the invitation to participate in a law review-organized symposium, the understanding is that the paper will be published, should the author bother to submit it.

Symposium pieces is one example where law reviews have to suck it up and deal with garbage (by the way, I should say here that some symposium authors are a dream to work with, and they make the whole experience more than bearable). Another example is not really an example but a reality of what law reviews face.

The reality is this: In my experience, law reviews receive lots of garbage. Many authors submit things that would never be published even if law reviews were not constrained by the number of pages. Some papers don’t deserve to appear in print because they are simply atrocious. Thus, the key is figuring out how to pick out the few gems, go through the selection process, make an offer, and survive the “shop-it-up” process (unless you are YLJ, HLR, or some such journal). This is why law review editors sometimes extend offers to pieces that are cited less than ideally but offer a novel argument that is sure to attract attention (read, increase the cite-o-meter of the law review). In the ideal world, law reviews would have a large universe of excellent articles to publish so that they could extend offers only to those that are also properly cited. We do not live in an ideal world.

Fenster’s idea is a good one. I wish we could implement it. The reality is that law review editors are facing a balancing exercise: how to grab a piece that is substantively pleasing while not sacrificing too much by way of proper citations? To be sure, like you, I don’t have any sympathy for law review editors extending offers to big names just because of their names. If law reviews do that and then basically have to supply the footnotes, no sympathy is warranted. But if editors grab the next “three views of the cathedral” that happens to require lots of help in the footnote department, I don’t blame them for cursing the author while slaving away to do what the author should have done.

You write, “if the citations do provide enough information to check up on [the author], then who cares whether all of her citations have pincites?” To help me understand your point, could you please provide an example of a cite that (1) provides enough information to “check up on” the author and (2) does not supply a pin cite. Is it a cite that contains 10 books without pin cites, where the LR editor has to trust that something in those 10 books supports the proposition? Exactly how is the law review editorial team to check up on the author in the absence of pin cites? In responding to my query, please exclude cases where a pin cite is not needed (see Professor Solove’s examples of citing Ackerman for the constitutional moments idea or Calabresi and Melamed for the insight first explained in their cathedral piece). But please do provide an example where material supporting the author’s proposition is buried in the middle of a multi-page document, no pin cite is supplied, and a pin cite is, in your opinion, unnecessary?

If the author’s citations don’t provide enough information to check up on her, that’s a problem, and the author is in a much better position to fix it than the editor. But if the citations do provide enough information to check up on her, then who cares whether all of her citations have pincites? The goal of citation is to provide enough information that a reader could easily check the assertions. Overkill on makework like mandatory pincites diverts time and effort from substantive editorial work.

First, one goal of law review editors is to ensure that an article’s assertions are correct. It would be embarrasing both to the author and the journal if an article bases its conclusion on a shaky foundation. Law review editors obviously do not have in depth knowledge of many areas of substantive law and scholarship and thus need pin cites in order to fulfil this goal. Perhaps this counsels in favor of peer-edited journals or the abandonment of this goal, but as it stands, editors need pin cites to most factual assertions.

Second, a discussion about the usefulness of pin cites depends largely on the question of who is the audience for the article. If the audience is almost exclusively scholars and other experts in the substantive field, then pin cites are generally unnecessary for many citations. But if the audience is broader (lawyers, judges, law clerks, lawmakers, students, etc.), then pin cites are generally more important. One phrase that I’ve heard often about articles is that they are written by specialists for generalists (which, if true, suggests that pin cites are important). But perhaps editors should consider the intended audience of an article in determining whether they request that the author add pin cites and/or citations (of course, an individual editor usually cannot make such a determination and the board would need to institute some policy permitting it).

That’s why I suspect the “blind review” at some journals is not so blind after all. Editors wait for the piece to be accepted by at least somewhat similarly ranked journals. Those journals in many instances pick the article based on the author (big name). When the expedite request comes in because the piece has been selected by, say, Michigan, the blind reviewers know the piece must be good and/or by a big name.

I know this cannot always be true, and that merit plays a role in many cases, but I suspect what I have said is true in many instances. I hope I’m wrong.

I wonder if part of the problem is that we have a mixed-identiy as law professors: Are we lawyers, or are we scholars (experts)? It seems that we are not permitted to make any factual assertions, even generally accepted ones, without backing them up with authority (lawyers). When I write law review articles, I feel, ultimately, as if I am writing a brief and need to cite to “the record”; I end up feeling that “I am not a witness” — I am a messenger. The lawyer cannot testify, as we know from our training.

But here’s the thing. My sense is that unless we are Cass Sunstein, perhaps, we are not considered by law review editors to be even at the level of “expert,” or “expert witness.” That is, we must provide support for much if not most of what we say. The strange thing to me is that in some articles I have made assertions and simply cited to a better known scholar who made the same assertion sans citation! I am thinking of instances where it was not an assertion original to the particular author I cited — I cited out of a sense that the editors would want me to cite *something.*

A more quotidian example: I was recently watching a war documentary. Historian John Keegan was talking about a particular battle. I watched him and listened to him. I knew he had researched and written voluminously on the subject – in fact I have read one or two of his books. When watching, I did not feel the need to demand (through my TV screen, of course) that Keegan supply citations to original military orders and transcriptions of conversations between leaders, or diary entries from soldiers. This was John Keegan, an expert. I guess I assumed he had done so? (Set aside for the moment that TV may induce passivity.)

Perhaps that analogy is inapt? Fine … I just picked from my shelf Joe Nye’s THE PARADOX OF AMERICAN POWER (2002) (just to be a prat I’ve not given you the rest of the title, what would follow after the colon …). The following text, on page 19 (there’s your pin cite!), has just a single endnote:

“In fact, the ‘rise of China’ is a misnomer. ‘Reemergence’ would be more accurate, since by size and history the Middle Kingdom has long been a major power in East Asia. Technically and economically, China was the world’s leader (though without global reach) from 500 to 1500. Only in the last half millenium was it overtaken by Europe and America. The Asian Development Bank has calculated that in 1820, at the beginning of the industrial age, Asia made up an estimated three-fifths of world prodcut. By 1940, this had fallen to one-fifth, even though the region was home to three-fifths of the world’s population. Rapid economic growth has brought that back to two-fifths today, and the bank speculates that Asia could return to its historical levels by 2025.” [finally, here, the sole footnote! Here's what it says: "Asian Development Bank, EMERGING ASIA (Manila: ADB, 1997), 11."] Asia, of course, includes Japan, India, Korea, and others, but China will eventually play the largest role. Its high annual growth rate of 8 to 9 percent led to a remarkable tripling of its GNP inthe last two decades of the twentieth century. This dramatic economic performance, along with the Confucian culture, enhanced China’s soft power in the region.”

I could hear my Inner Law Review Editor (ILRE) (I was one in law school) going ballistic. Is yours? One footnote, embedded in the paragraph! Ask your ILRE how many notes would this paragraph have generated in a law review article?

Perhaps there should be more training for law students and law professors about the difference between scholarship and law practice. I would welcome it myself.

I’d love to hear your thoughts, refutations, etc.