Wednesday, January 07, 2004

Citing to Blawgs in Law Journals and Law Reviews


Via the blawg en banc and Greg Goelzhauser in "Citing to Blogs" we have become aware that Professor Bainbridge's blog has been cited in the Yale Law Journal by Professor Guhan Subramanian (Law Professor at Harvard) in 113 Yale L.J. 621, 629 n.43 (2003), perhaps, as the blog en banc calls it, "the first blog citation in a major law review".

That could be.

How far does this go?

Goelzhauser asks the question:

"How far does this go? Are only well-respected law professors eligible for citation? Only in their specialty areas? Of course, there are no hard answers to these questions.... It would be interesting to hear how authors/bloggers feel about the possibility."

As a teacher of legal research and legal writing in Anglo-American Law at Trier Law School, it would be my opinion that "anything written" can be cited. It just depends on who is being cited and what the blog is being cited for.

Professor Brainbridge's blog is being cited due to his particular capacity as an expert on corporation law at UCLA Law School, i.e. Bainbridge is a legal "authority" with respect to the question under consideration by the judges. They also have no reason to assign less reliability to a blog posting by Bainbridge than to a law journal article by him.

Should Blawgs be Cited?

Why should a blog be any less "citable" than a journal or any other written source? However, as Shakespeare wrote:

"The evil that men do lives after them; The good is oft interred with their bones."

Therefore, take care what you put into print - especially if the whole world can read it.

The good things that are written will be easily forgotten. The careless, bad things are likely to be remembered.

When do we cite "academic" legal authorities?

Here in Germany recourse to "academic" authorities in interpreting the law is in fact far more prevalent than in common law countries such as the USA. This is because German law is based on Roman law, which is statutory "civil" law.

Common Law and Civil Law

Generally, in this regard, it might pay to take a look at this book review by Michelle D. Deardorff of

Antonin Scalia's book, A Matter of Interpretation: Federal Courts and the Law, published by The University Center for Human Values Series, Princeton, N.J., Princeton University Press, 1997,

where it is noted that:

"The 1997 book, A Matter of Interpretation: Federal Courts and the Law, is framed around a clear, accessible essay entitled "Common-Law Courts in a Civil-Law System The Role of United States Federal Courts in Interpreting the Constitution and Laws," written by Supreme Court Justice Antonin Scalia. The second section of the book is composed of responses to Justice Scalia's essay by such diverse, prominent scholars as Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; edited by Amy Gutmann, the book concludes with Justice Scalia's response to each comment."

As Deardorff writes further:

"In her comments, Professor Mary Ann Glendon, focuses on two primary questions, "Have civil-law lawyers and judges fared any better than we Americans in the maze of twentieth-century legal materials? If so, what can we learn from their experience?" (p. 95). Her essay examines the different ways in which common law systems (e.g., United States) and civil law systems (e.g., Germany) made the transition to statutory legal systems. She argues that the primary difference has been one of deliberativeness, in that many civil-law systems recognized the seriousness of a change to a more textual- based system and consequently, focused on forming a clear judicial community of academics, attorneys, and judges with shared interpretory values. Professor Glendon notes that while in the United States initially we had shared values, such as stare decisis, but even its role is fading and there is no contemporary interpretory community."

So, as one can see, the standing of interpretative authorities is also dependent upon the legal system used.

Footnote: Check Your Links

Footnote: The citation irony is that Bainbridge's own link has a glitch and does not work when clicked. It is cited online as

http:// www.professorbainbridge.com/2003/10/delawares_predi.html (last visited January 7, 2004)

but it should be

http://www.professorbainbridge.com/2003/10/delawares_predi.html

i.e. in the course of writing the blog a space has crept in after the double forward slashes.

This kind of typo is not unusual - but we all have to be careful to check our links when we cite sources online, so that this is a lesson for everyone, academics and students alike.

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