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A Valuable, Recent Commentary on “Bluebook ‘Common Law'” in Terms of Law Journal/Review Source-Pulling/Cite-Checking (“Source & Cite”)
From this piece:
…[A] factor in [law reference librarian] mission creep is the culture of fear that seems to permeate journals. Journal students are often unsatisfied with being told that [The] Bluebook [: A Uniform System of Citation] does not expressly cover their particular source and that they will have to extrapolate and/or make up a citation that makes sense. They seem to live in constant fear of receiving strikes from their editors, and I gather that the accumulation of three strikes ushers in some sort of unspeakably dire consequence. Thus, journal students often want confirmation from trusted librarians that they are citing things in good form.
While I used to view walking students through Bluebook rules as an opportunity for extra LRW [Legal Research & Writing] instruction in an informal setting, I have come to appreciate the method my library director uses for answering citation questions. He has the students look up past instances of how their journal cited a similar source. If their particular journal has not cited the source before, he suggests finding it in a different journal. In essence, this is Bluebook common law [EMPHASIS ADDED].
When presented with a conflict in which it is possible to apply a vaguely worded rule in more than one plausible way, the student can look at past decisions and follow them. If the goal is achieving consistency through time stretching longer than one’s institutional memory , there are certainly worse models to follow than stare decisis [EMPHASIS ADDED]. The best part of this approach is that it still affords me the opportunity for extra LRW instruction, just at a more metaphorical level. Bluebook rules mirror statutes; earlier citations mirror judicial decisions and can be either mandatory (if from the same journal) or persuasive (if from a different journal) [EMPHASIS ADDED]; earlier citations can be distinguished factually (e.g. print vs. online editions of a source); and students may even have to settle circuit splits (if different issues of the same journal cite a single type of source differently). Really, the possibilities for educational allegory are endless!