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  • Kirk Hartley

“Posner Calls Bluebook ‘Rubbish’ In Legal Profession Critique”

This headline made my morning:  “Posner Calls Bluebook ‘Rubbish’ In Legal Profession Critique”  It’s from a LAW360 story online here.   The story covers other more important topics too, but for those of us who suffered through Bluebook rules before word processing, the headline story is a joy to read!

“By Dani Meyer

Law360, New York (March 29, 2016, 6:34 PM ET) — All copies of the Bluebook should be burned, Seventh Circuit Judge Richard A. Posner recommended in a recent article critiquing the legal system, calling it “560 pages of rubbish” and a “terrible time waster” since readers only pay attention to whether they can find the cited material and not to the format of citations.

Judge Posner pointed out in his article titled “What is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable,” first published March 14 in the Winter 2016 edition of law journal The Green Bag, that Wikipedia contains a summary of his criticisms of the citation style guide called the Bluebook — but no defenses.

“That however is typical of legal academia. The academy rarely bothers to defend any of its antiquated and pointless practices, numerous as they are; and the cone of silence embraces the judges and the practicing lawyers as well,” Judge Posner said. “Critics of established practices typically are ignored.”

Judge Posner acknowledged in the article, the first of a two-part series, that he is known as a maverick, gadfly and faultfinder, but he said the reputation isn’t “entirely undeserved,” especially as he focuses in this article on aspects of the judicial system that are both unsound and easily corrigible without federal legislation or radical changes.

“That is not to say that anything I criticize will be changed, however convincing my critique. For law is wedded to the past as no other profession is,” Judges Posner observed. “You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it … ).”

The judge took aim at the Bluebook as part of a critique of appeals to the court of appeals, pointing out that cutting “for the foregoing reasons” from the end of an opinion won’t leave readers wondering if the reasons for an opinion are being concealed, or if there were no reasons, or if the reasons will be revealed at a future point in time.

Meanwhile, using the phrase “after careful consideration” implies judges are usually careless but gave the case careful consideration this time, Judge Posner said.

Beyond the “redundancy,” “superfluous flourishes” and general lack of eloquence in judicial opinions, Judge Posner also blasted the “stodginess and stuffiness of the American legal culture,” accusing judges of “forever looking backwards.”

“The problem is that the past does not contain usable solutions to contemporary problems. The eighteenth-century United States, the nineteenth century United States, and much of the twentieth-century United States might as well be foreign countries so far as providing guidance to solving today’s legal problems is concerned,” Judge Posner said.”

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