More on Law Review Citation: The Dreaded Pin Cite

pin1a.jpgAn anonymous former executive editor at a law review writes in a comment to my recent post about pet peeves in law review editing:

As a former Executive Editor on the Law Review, I often found that the toughest part of the editor/author dynamic was the author’s failure to hold up his or her end of the bargain. Admittedly, our strict adherence to the Bluebook was sometimes a source of tension. But it was the author’s failure to do an adequate job citing his work that caused the biggest problems.

Professor Solove, your points are well taken; however, the problem goes beyond overzealous footnote and parenthetical insertion. My journal was a “light editing” journal, so we did our best to add citations only when absolutely necessary, while respecting each author’s style and voice. Unfortunately, my co-editors and I learned quickly that many authors (especially well-established and older authors) think of the journal staff not as citation checkers but as citation generators.

We received pieces that presented excellent view points and strong arguments—but contained almost no pin cites. Not incorrect pin cites. No pin cites. In some of the more egregious cases, we asked the authors to provide them, and the response was always, “That’s your job.” True, it’s our job to verify your assertions, but you can’t just tell us what book to start reading (to borrow another poster’s example). Similarly, in a number of cases, it became clear that (1) a legal assertion required substantive support, (2) the author knew it required support, and (3) the author expected the editorial board to locate the support. Once again, we edit the substance—we don’t produce it.

It is certainly true that many authors are lazy about citation and pawn off too much of the work on law review editors. I try to be very careful about citation, and I frequently spend a ton of time working on citation to my articles — too much time, I believe, since I think that many of the conventions of legal citation are needless busywork. The point of my original post was not about casting blame on anyone. It is about critiquing a set of norms and practices about law review editing that aren’t helpful to readers, are annoying to writers, and are also time-consuming for editors.

Citation is unusually detailed in law review articles. Pin cites, for example, are sometimes helpful. But many times, citing just to the case or article is sufficient. The culture of the Bluebook and law review editing is one of extreme precision. Every statement must have authority, and nearly every citation must contain pinpoint location information. This sometimes can be helpful, but it is often overkill. For example, to use an analogy to physical directions, in many cases, it suffices to say: “It’s in New York City.” In some cases, one might say: “It’s in the Empire State Building in New York City.” But law review citation conventions often want something more: “It’s on the 51st floor of the Empire State Building in New York City in Office #5102, on the desk on the right hand side, the third document from the top of the pile, on page 17.”

The goal of citation should be to help the reader. But law review citation often differs from this goal — it is about justifying every proposition with painstaking accuracy. Sometimes this level of accuracy just isn’t really needed. Sometimes it is. It’s a judgment call.

I believe pin cites are important for direct quotations or for difficult-to-find facts in sources. But they are often unnecessary for many facts or for holdings of cases. What annoys authors is that instead of working on improving the substantive arguments and writing of an article, a ton of time is wasted hunting for pin cites that few readers will care about.

Many other fields use a much less rigid set of citation conventions. Likewise for citation in books. I guess it is no suprise that legal citation is obsessed with rules. But one of the lessons I try to teach in my classes is that sometimes no system of rules can replace good judgment.

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40 Responses

  1. anonymous LR editor says:

    Professor Solove says: “law review citation conventions often want something more: ‘It’s on the 51st floor of the Empire State Building in New York City in Office #5102, on the desk on the right hand side, the third document from the top of the pile, on page 17.'”

    This example usefully illustrates why law review editors are so adamant about pin cites. And they are for a good reason. If you are citing to something that one can find only on page 17 of the third document from the top of the pile, it is your responsibility as a scholar to provide enough information and enable someone else to find the supporting proposition. In that example, simply saying “it’s in New York”–which is the equivalent of what a lot of authors do–is irresponsible and defeats the whole purpose of a citation. Why in the world would you send your readers to New York and ask them to find a needle in a haystack? If you as an author have so little respect for the reader, just omit the citation altogether and see if you still think it’s right. Citing a 400-page book for a proposition that appears only on page 251 of that book–and providing no pin cite!–amounts to little more than failing to cite the book altogether.

    In my two-year tenure on my law school’s law review, I’ve often wondered: why is it so difficult to provide a pin cite? In the 400-page book example I used in the previous paragraph, surely at one point the author has read what’s on page 251 and has concluded that something on page 251 supports the author’s assertion. So why not stick a reference to page 251 before submitting the article to law reviews? Is it lack of discipline? The fact that it’s too hard to go back and find the right pages? If so, there’s little sympathy for the author who could have avoided the whole issue by carefully noting the specific pages in the first place. I personally find sticky notes helpful in doing my own research.

  2. another anonymous LR editor says:

    If the entire article supports the proposition, the solution is simple: use the correct signal. A see generally in combination with a parenthetical is enormously helpful. (And there are times I would even break a Bluebook rule and not require a parenthetical. For instance, I would not ask for a parenthetical to support a proposition about collectivist 2d Amendment rights that cites: “See generally John Doe, A Collectivist Interpretation of the Second Amendment, . . .”).

    Because this is the problem: if an author indicates he is citing to an entire article, neither my time nor that of my staff will be wasted in searching for a pincite. But if the citation does not indicate it’s a “see generally” type citation, well, I look for the direct proposition somewhere in the article. When I come across a half dozen such citations in an article, it’s OK; I suck it up and get it done. When every other citation appears to require, but lacks, a pincite, then I get frustrated. It is not the job of law journal staff members or editors to provide research assistance to an author, but too much of my time has been spent doing just that.

  3. Anonymous LR Editor — There are many instances where pin cites are just not necessary or are a waste of time. When professors read hundreds of books and articles over years, it is hard to remember where a pin cite to something is in a book or article read 5 or 10 years ago. Student editors do just a handful of research papers in law school, so sources are fresh in their minds. Don’t forget that professors write not just based on what materials they have read in the past few months but also over the course of an entire career, which can span decades.

    Some citations to books may be for a particular fact or proposition on just one page, but many citations are to the book’s entire argument. So, for example, suppose I refer generally to Bruce Ackerman’s “constitutional moments” theory. Unless I’m referring to a very specific point he’s making in his book, We the People, why is a pin cite to a specific mention of “constitutional moment” necessary? The purpose of the citation is not to help the reader isolate a few specific pages where a discussion of “constitutional moments” appear on. It is simply to point the reader to Ackerman’s book, as the discussion in the article is about Ackerman’s theory in general. To fully appreciate the theory, one has to read Ackerman’s book, not just hop to a particular page in it.

    Likewise, a person might discuss Calabresi and Melamed’s theory of property rules and liability rules. Unless the discussion is focusing on one particularly unique dimension of the article, a general citation to the article is all that is necessary.

    It all depends, of course, on the purpose of the cite. In many cases, the purpose of a cite in the examples above is simply to refer the reader to the general argument or theory advanced by a scholar. A pin cite is useless. In some cases, to appreciate the argument in the source, one cannot just hop to a specific page; one has to read the entire book or article. This is not always the case, of course; it is a judgment call .

  4. Semi-anonymous for no good reason says:

    Part of the problem is that some things aren’t really appropriate for pin cites. I was once asked for a pin cite to the proposition that Plato cares about education in the Republic. I refrained from saying “the whole book you moron.” But only barely.

    And seriously, read something in some other discipline once in a while. You’ll see many fewer pin cites.

  5. Mark Fenster says:

    To raise a somewhat different issue:

    If I might suggest to the law review editor whose response Dan excerpted: Why accept a submission that demonstrates (either through lackadasical or insufficient footnoting) the author was going to outsource primary research to your editors? It’s common wisdom among junior faculty at schools outside the top 25 that our submissions should be well-sourced, on the assumption that those submissions face longer odds of getting accepted and should therefore offer no obvious reasons for rejection (by, e.g., including lots of unfootnoted assertions, cites without pincites, bracketed notes to self about future research, etc.).

    Because I think that’s a very fair burden for any academic to face, I don’t complain about it. After all, the fact that a viewpoint is “excellent” and the argument is “strong” should mean that the author has read widely and incisively on the topic. It isn’t too much to ask that the author do a credible job of citing that literature. When a journal is willing to accept a poorly cited piece, whether because or knowing that the author is “well-established and older,” why should anyone should be sympathetic to the editorial board? (The lowly cite-checkers, certainly…) Why not just reject the submission, or suggest the author revise and resubmit it? Assuming it to be the case that some subset of well-known authors outsource their research, the only way journals are going to force these authors to do their own research (or, especially for those with batteries of research assistants, to source it within their own institutions) is to have rigid standards applied equally to all authors.

  6. anonymous LR editor says:

    Professor Solove,

    I think another anonymous LR editor has already addressed your comment regarding the use of the whole book to support your proposition. I fully agree with you, though, that there are times when no pin cite is needed. You’ve given a couple of good examples (Ackerman’s constitutional moments; Calabresi and Malamed’s cathedral). We are on the same page there.

    As to your semi-valid point that professors sometimes have to rely on books they read many years ago, I have two things (which will explain why I think your point is semi-valid). First, you are absolutely right that a law professor is doing and has done far more research than a typical law review editor is or has. I question whether this alone gives your colleagues any right to express intellectual superiority by way of saying things like “the whole book you moron” (see previous post by Semi-anonymous), but quantitatively you seem correct. The second point in response to you, and this is why I don’t really take your argument, is that an author ought to go back and make sure that her recollection of whatever she’s read 10 years ago is right on the money. Too many times law review editors have received citations to books without pin cites, asked the authors to provide them, engaged in needless back-and-forth with the authors, only to come to this: the author has actually meant to cite a different book.

    My advice, for what it’s worth, is this: if you would like to cite something you’ve read many years ago, go back and read it again to make sure the darn thing supports your proposition. You’ll be surprised about the tricks your memory plays on you.

    But there’s yet a more important point: if you are not going to provide a pin cite, who will? The law review editors? No, it’s not their job. Are you suggesting that your readers should be left in these situations to look for themselves? If so, then that to me underscores the problem–the general contempt of law review authors for their readers.

    P.S. to Semi-anonymous: please take yourself a bit less seriously when working with law reviews. The whole process will be vastly improved if you assume (pretend, if you must) that law review editors are not morons. They, after all, have to pretend that the authors are not (an assumption that is too generous in some cases).

  7. I abhor most pincites. They are essential for any quoted material, for any specific factual assertions, and for particular points in larger documents that discuss multiple issues. Beyond that, they are pure makework. When one cites an article for the proposition that the entire article is devoted to defending, a pincite would miss the point. Especially for extended and complex arguments, many true pincites would be the size of a corkboard. When I read articles, I basically ignore pincites.

    As someone who works extensively with online sources, I find that a great many of my sources are also remarkably unsuited to pincites. I come across huge documents with no pagination all the time. If you’re lucky, the author included some # anchors so you can give the URL to a part of a page, but that’s comparatively rare.

  8. Another anonymous LR editor writes: “If the entire article supports the proposition, the solution is simple: use the correct signal. A see generally in combination with a parenthetical is enormously helpful.”

    The problem with “see generally” cites is that they require parentheticals, and as I explained in my earlier post, the parenthetical rules are often silly. As you indicate, you often find it necessary to break with the rule.

    So there needs to be a citation format for the following:

    “The discussion in the text is based upon this source generally. No specific pin cites are likely to provide further assistance. The discussion in the text explains enough about the source so a parenthetical isn’t necessary. Just see the source if you want more.”

    I’ll even coin a citation signal for it. Instead of “See” or “See generally,” this signal would be: “Just see the source if you want more” . . .

    I haven’t even touched the silly rules for ordering sources in footnotes — who cares what order they appear in? Or the differences between all the manifold possible signals that can be used. Who needs all this?

    The irony is that the people spending the most time reading law review articles are law professors, and they don’t know enough about the Bluebook rules to really care about all the small details. Law review editors pride themselves on perfect Bluebooking, yet the readers of the articles have little idea of what is correct or not. The important thing is that the cites are clean and consistent throughout the article and that they are helpful to the reader.

    Of course, some basic rules of citation are helpful, but the Bluebook is a truly absurd creation. At one point, I knew it well when I was an editor on the Yale Law Journal. I especially hated it then as an editor. As a professor, I still recall roughly the format, but I no longer remember the finer points. But, to its credit, the Bluebook generated a lot of revenue for the Law Journal. The Journal had a pretty swank party at the end of the year, probably thanks in part to Bluebook revenue. That’s about the only good thing about the Bluebook.

  9. Anonymous LR Editor writes: “My advice, for what it’s worth, is this: if you would like to cite something you’ve read many years ago, go back and read it again to make sure the darn thing supports your proposition. You’ll be surprised about the tricks your memory plays on you.”

    True, this can sometimes happen. But many times, law review editors want cites for propositions like: “Many scholars argue [proposition].” Statements like these are often made based on having read hundreds or thousands of articles or books in one’s field. It is based on the author’s general impression of the literature. The author may not recall precisely which sources made the argument. And in many cases, nobody cares to see the cites. Many authors use lines like “Many scholars argue . . .” just to set up an argument that the author wants to critique. The important point is the argument itself, the clarity by which the author describes it in the paper, and the quality of the author’s attempt to critique it. Readers versed in the field will say: “Of course, that’s my impression of the literature too.”

    Of course, there are some cases where it is very important to point out a few examples of scholars making a particular argument. But in several cases, authors are responding in general to a body of literature in a particular field. It is not a valuable use of time hunting around to find specific sources that one read many years ago. The point of the author’s article is to advance a new point, not to wade through sources read years ago to satisfy some excessively detailed citation system that most readers of the piece will not find helpful.

    I respect the comments by the law review editors a lot. I understand your plight, as I was a law review editor myself and was very frustrated by incomplete citations in articles. But being on the other side, no longer a slave to the citation system, I see that my perspective as an editor was based on the fact that my goal was to Bluebook the articles to perfection. I was thinking primarily in terms of what would be helpful for the citation process. But citations are designed to serve their masters — the authors and readers — not vice versa! The problem ultimately isn’t the editors or the authors, it is the system of citation conventions in legal scholarship that requires needless extra attention to the citations.

  10. Ubertrout says:

    As a law professor who has read hundreds of books, while you are no doubt the wiser for having read them, others who have not read these works are not. Even your colleagues who have read these works may appreciate knowing where a specific point comes from. If what you’re citing is a specific point, it deserves a pin cite, and I think sometimes people are unwilling to revisit a book read ten years ago for a particular point. But really, that’s not a good reason.

    On the flip side, where what you’re citing is a broad theme or concept of a work, just use a “See Generally.” If they insist on a parenthetical, how about (Central theme of the article) or something similar.

    If you’re in doubt about whether something is a general point or a specific one, it’s most likely the latter. Is it really such a hassle to pin cite something? People, especially those who are not law professors, will read your article and want to know where to go for that specific point. A large part of research is not just your brilliant thesis but the research you bring to bear on it. To not allow those reading your work to know where to go to read more about a certain fact, and to look at your source’s notes and so forth, seems merely selfish.

  11. Ubertrout — Articles in nearly every other field contain considerably less detailed citation than law review articles. I’m not so sure that it results in scholarship in these fields unduly depriving readers of important information.

    Perhaps law review articles are the gold standard in citation and other disciplines (and book publishers) should get in line and follow along. My sense is that no other discipline or print medium uses the law review citation format because it is so excessive.

  12. anonymous LR editor says:

    Professor Solove,

    First of all, let me thank you for opening up this dialog. Your willingness to engage law review editors on these questions is very welcome.

    I agree to an extent with your general observation: “The problem . . . is the system of citation conventions in legal scholarship that requires needless extra attention to the citations.” I’ve often wondered what is the big deal about italicizing the period after the “id.” And there are many other examples of needless minutiae that Bluebook demands.

    My disagreement with you lies in the willingness to give the authors’ statements presumptive validity. Having personally seen many respected authors attempt to blow a fast one past the editors (and, consequently, the readers), I’m defending the requirement for more precision. And I am doing so not as an editor who wanted to Bluebook the article to perfection. I didn’t. I’m defending the precision (namely, the use of pin cites) for the readers’ sake.

    Many readers are fooled by the authors into thinking that their articles are novel and insightful. The authors do so by making statements of the following form: “Many scholars in the field argue X. Shockingly, no one has paid sufficient attention to Y. I am going to argue Y and show how brilliant I am.” Often, the authors want to omit a citation for the first proposition–that many scholars argue X. Their reasoning mirrors that in your response to my previous post, that the statement should be obvious to anyone well-versed in the field. Well, not necessarily. At times, after the authors has finally cited an example or two of those who argue X, it is clear that, by arguing X, other scholars are also considering Y only to dismiss it for reason Z. But the reader wouldn’t know this from the authors blanket assertion. Moreover, even readers learned in the particular field might not recall that those arguing X have actually considered Y as well but chose not to make Y a central point in their articles.

    All of this is simply to encourage the authors to provide pin cites unless the citations is, indeed, to the whole book, article, or a case. And statements like “Many scholars argue . . .” benefit from a citation to at least one example of that argument because then the author is doing more than simply asking the readers to trust her. If an author is so learned in the field that she can easily say “Many scholars argue . . .,” then it’s not, one would think, too much to ask her to recall one or two seminal pieces that actually argue that point. The beneficence of that approach will be apparent not just to the law review editor obsessed with perfect Bluebooking, but to the readers as well.

    Professor, I leave you with the following questions: if you are, as you appear to be, cognizant of the readers’ needs, why not supply a pin cite or a couple of examples illustrating your point even if you think the examples and pin cites are pointing to the obvious? Wouldn’t you rather reach all potential readers, even those who, for one reason or another, do not agree with you that the pin cite or an example is a waste of time and space? To use an expression largely overused in law reviews, wouldn’t you rather be over- than under-inclusive?

  13. Anonymous LR Editor asks: “I leave you with the following questions: if you are, as you appear to be, cognizant of the readers’ needs, why not supply a pin cite or a couple of examples illustrating your point even if you think the examples and pin cites are pointing to the obvious? Wouldn’t you rather reach all potential readers, even those who, for one reason or another, do not agree with you that the pin cite or an example is a waste of time and space? To use an expression largely overused in law reviews, wouldn’t you rather be over- than under-inclusive?”

    When I believe readers will benefit from a pin cite, I supply one. Indeed, because I’m used to the legal citation system, I often supply a lot of information in the citations and hunt down cites myself. It takes a lot of time. Of course, there are places where I miss pin cites here and there, but I do make an effort. A lot of the time, though, I don’t think that the time I spend doing this is worth the benefit to the reader. There are only so many hours in the day, and so many hours that I can allocate to a given publication. My primary concern is making the substance of the piece the best it can be. I want accurate and helpful citations, but the law review citation format is simply excessive and a waste of time and effort that could go into improving the substance of the article.

    There are always going to be readers who would like more information about this or that. Some readers would like less footnotes and citation! In fact, readers from other fields often comment on the ridiculous number of footnotes in law review articles and find that they are often a distraction. I’ve yet to hear from anybody that law review articles contain too few footnotes and too few pin cites and too little citation. The overwhelming majority of readers, in my experience, seem to think just the opposite.

    As an author, the issue always comes down to how to please one’s audience and be as inclusive as possible. There will always be folks who want more citation and folks who want less. There will be non-legal readers who would like basic explanations of legal concepts. There will be readers who prefer a more engaging style. And so on. Ultimately, the goal is to provide the best balance, given the time one has, and to produce the article that most appeals to your audience.

    Style is another issue when it comes to law review articles. The convention is to write in a rather clunky style — no contractions, wordy and excessively formal diction, excessive jargon, zillions of footnotes, and sometimes even a passive voice about one’s assertions: “This article argues . . . ” I prefer to write in a direct and clear style that is accessible and readable, but I often find myself pushed into writing in the law review style. Part of this is due to some editors who will try to edit articles into this style; but part is due to my being so used to writing this way at this point.

    In short, if we’re really to think about the reader, being over-inclusive about citation is not at the top of my priority list. Most law review articles, quite frankly, are not reader-friendly. Citation is not done to help out readers. It would be great if articles were written and edited with the reader in mind. They’re often not. And unlike the citation issues, which are the fault of the system, the readability issue is the fault of the authors and the editors.

  14. Dan,

    I’ve wondered before at the disparity you mention between law and other fields (like IR), both because I’ve been annoyed at having to provide pin cites (including the problem, which I didn’t see mentioned, of whether to optimize the cite by choosing the best of many possible references), AND because I’ve been annoyed at having to comb through books cited in other disciplines for some support for the proposition in question.

    Some theories: (1) editors of peer-reviewed journals don’t have the time to look stuff up for the authors, and they empathize too much with the authors to demand that they do it themselves; (2) other disciplines have developed different norms for reasons having little to do with the general case (e.g., because much of the work contributes by original data collection and modeling, which requires less emphasis on secondary literature, or because work in other disciplines has a (still!) narrower audience who are more likely to be familiar already with the works in question); (3) legal scholarship has developed different norms for reasons having little to do with the general case (e.g., because case analyses tend to mirror case citation practices); (4) because legal scholarship feels the need to use precision in citations as a substitute for other characteristics of rigor. None of these work that well — e.g., #4 couldn’t explain why students are the enforcers — but maybe there’s something to the combination.

    Whatever the explanation for pin-cites, I think the identification issue (#1) has something to do with the broader debate. Everyone complains about being straight-jacketed, whether through the BB, the MLA, or the Chicago Manual. It’s just that it’s easier to formulate the criticism — and, equally, to complain about the disregard of those rules — when the editor and the edited are differently situated.

    Finally, I think that the BB’s tendency to substitute rules for judgment may have less to do with any of the above than it has to do with the need to create an approach that is easy to enforce within the law review staff, and as a criterion for selection thereto.

  15. I can’t think of another field whose publication norms both (a) require incredibly precise, detailed citations of every point in an article, no matter how small, and (b) require that an article be completely accessible to a reader with no background whatsoever on the topic. The first practice expects that the that the audience will do extensive outside reading; the second assumes that the audience has not and will not read anything else at all. The most useful response to authors trying to slip a fast one through is for editors to check carefully that every proposition really is adequately supported, not to hardwire pinciting into the citation system itself.

  16. anonymous LR editor says:

    Grimmelmann writes: “The most useful response to authors trying to slip a fast one through is for editors to check carefully that every proposition really is adequately supported, not to hardwire pinciting into the citation system itself.”

    With respect, this is extremely hard to do when either (a) there’s no citation provided or (b) the whole book is cited for a specific proposition. And that’s I was talking about. The example of (a) was Professor Solove’s complaint that law review editors requires support for the proposition like “Many scholars argue X.” How in the world am I supposed to know whether this is true if there’s not even one example? And why not provide at least one example? And the example of (b) is the author submitting a citation to the whole book and failing to provide a pin cite. To verify that the cite adequately supports the proposition would require LR editors to read the whole book all because the lazy author wasn’t disciplined enough to provide a pin cite.

    Especially with respect to (b), your earlier comment is instructive. You said, “I abhor most pincites.” Perhaps you are of the opinion that a citation without a pin cite is adequate simply because we ought to trust the authors that the somewhere in the 400-page book lies a sentence supporting the author’s assertion. I don’t think this is adequate.

    In general, Mr. Grimmelmann, your dislike for pin cites as a consequence of your reliance on material published on the web, is easily placated. You should stay away from law reviews and publish on the web, as I’m sure you are doing plenty of already.

  17. Matt says:

    I’m no fan of law review style citations. I think they are over-done and often silly. But I also don’t much care for cases where people say, “many scholars argue…” and give no examples. In my field (philosophy) this isn’t that unusual. But, even in areas I know quite well, I often wonder who is supposed to be the target since the propositions for which “many scholars” are supposed to be arguing are often straw-men, at least to my eye. This happens quite often, even with famous (perhaps most often with famous) authors and it’s quite annoying. Better to make sure you’re arguing with a real opponent then your “view of the field” since that might well be a distorted view. Just cite a few people.

  18. Orin Kerr says:

    Two thoughts:

    Anonymous LR editor, your comments are thoughtful, precise, and very reasonable. Very nicely done.

    Regarding James Grimmlelmann’s point that “I can’t think of another field whose publication norms both (a) require incredibly precise, detailed citations of every point in an article, no matter how small, and (b) require that an article be completely accessible to a reader with no background whatsoever on the topic.” Well, it’s not a legal field, but isn’t this the norm of legal brief-writing? I suspect that’s why law review article citation formats are so invasive: under the bluebook, they are essentially the same as the formats for legal briefs.

  19. Orin Kerr says:

    Oops — I meant “technical”, not “invasive.”

  20. Nate Oman says:

    I would just point out that law-review citation norms are not necessarily inherently legal. In my research, I read a fair amout of material published by British legal scholars in British legal journals and books. There is nothing like the American law review’s penchant for having half the page taken up with footnotes.

  21. anon says:

    This is an illuminating and necessary discussion – thanks to all.

    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.

  22. anon says:

    oops – there should be no quotation marks after “2025” in the quote from Joe Nye above. My apologies.

  23. david bernstein says:

    I second Mark Fenster’s comments. If a law review accepts a poorly footnoted piece simply because the author has a “big name,” (which I saw happen fairly often at Yale, mostly at secondary journals, but also at the YLJ), the editors have no one to blame but themselves if they wind up having to do the work. A firm consistent policy that articles will only be accepted if they conform with at least minimal professional citation standards would limit this problem, (as would, especially, a willingness to tell authors of solicited pieces that the law review will not do their research for them–I’m still shocked that the YLJ accepted pieces in which the text of the article said things like “editors: please look up and elaborate.”)

  24. Josh Wright says:

    And I third Fenster’s comments generally. More specifically, I am interested as to why the “revise and resubmit” procedure, or some variant thereof, has not been adopted by top law reviews. Have any law reviews tried this? Any thoughts from the law review editing crowd in the thread?

  25. anon says:

    I fourth the comments. It serves those law review editors right for accepting articles based in large part (if not solely in some cases?) on who wrote them. Many of us who are not yet big names toil away, trying to convince ourselves that law review editors will actually read our pieces … I suspect that in many cases the editors simply wait for an expedite request before they pull the piece out of the slush pile, *if* the request is the result of a publication offer at a *good* journal.

    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.

  26. former l.rev. editor says:

    Two points:

    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).

  27. Anon* says:

    Part of the disconnect over the pin cite is a disagreement about when a citation is necessary. Historians, for example, don’t typically cite to common facts (e.g., the dates a war took place, as opposed to some very specific fact found from research in primary sources); rather, they cite to ideas so as to not be accused of plagiarizing someone else’s analysis. When you cite to ideas, the notion of a pin cite is not really relevant. The idea may be stated in the introduction, but it is established by the entire article’s or book’s argument. By contrast, when you cite to facts, then you would need a pin cite. Law review articles, especially interdisciplinary articles, include both fact and idea citations, but the footnote conventions are geared overwhelmingly to fact citations. This is in part because law review students are primarily equipped to cite check for facts, not for the ideas. Professors who don’t include pin cites often consider it only important to cite to ideas and throw in cites to facts just to please the editors.

  28. Anon* has it exactly right with the fact-idea distinction. And Orin Kerr’s point that law review citation styles match legal brief citation styles is also quite accurate. These two points are closely connected, I think. A generalist judge approaching a case should not be assumed to have deep knowledge of a subject already and it’s the job of the parties to provide relevant authority for their legal claims. Brief-writing, on the other hand, has very little need for attribution of ideas; ideally, nothing in a brief should be an original idea. Instead, everything should flow logically and obviously from indisputable and well-known sources.

  29. I’ve been through the law-review editing process recently enough on the editing side that my dislike for mandatory pincites is informed by that experience. I was in your shoes, anonymous LR editor, and yes, you are right that a citation to an entire book for a specific anecdote is not cool. But for every time that I grumbled about having to skim through a 400-page report to locate a particular factual finding, there were probably ten times that I had to check out a completely superfluous pincite.

    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.

  30. anonymous LR editor says:

    Mr. Grimmelmann,

    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?

  31. anonymous LR editor says:

    Mark Fenster’s idea (now supported by several other commenters) is a law review editor’s dream. Oh how many times I wished that I could have told the author to take a hike until she gave me a more completely cited piece. So, why didn’t I or my journal do this?

    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.

  32. anon says:

    anonymous LR editor and others might want to consider: whose responsibility is it to ensure that, at the end of the day, an article is sufficiently sourced? The assumption is that it’s the law review’s. (The issue is who should do the work — the author or law review editors.) But maybe it’s the author’s responsibility at the end of the day? Perhaps not solely, but largely?

    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.

  33. Here’s one from Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 539 n.25 (2005):

    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?”

  34. Get your head out of the law reviews! says:

    I think the amount of time people have spent commenting here on Dan’s (very good) post on pin cites speaks volumes.

  35. anonymous LR editor says:

    Mr. Grimmelmann,

    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.

  36. anon says:

    So is there any interest in the “market approach” I mentioned above? That is, that law review editors should defer to the writer/scholar when there is a disagreement between editor and writer over whether something should be sourced and/or pincited? If it becomes generally known that “the writer rules” on this issue at law reviews, then if the writer wants everthing sourced, he or she must do it him or herself. The law review editors should not have to become de facto research assistants.

    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.

  37. I read the Bluebook (17th ed.) as requiring a pincite here because the citation refers to “specific material within such a source.”

    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.

  38. anon says:

    I don’t know if James’ meta-proposal is meta enough:

    “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.

  39. Jane says:

    Maybe this is part of the problem–student editors’ first exposure to legal writing is in their first year legal writing class. In that class, they are probably taught to write office memos and briefs. In this context, students are taught to provide a citation for nearly every sentence, even if it’s just id after id after id. That may be appropriate for a memo to a partner or a brief to the court.

    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.

  40. Stuart Buck says:

    Two contrasting points:

    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.