How 2 right gud
I know this comes up a lot. You're plugging away late at night on a brief that's due the next day -- your motto, like mine, being "if it weren't for the last minute, I'd never get anything done" -- and you find yourself in a quandary. You need to cite the Statute of Anne, which was enacted by the English Parliament in 1705, but you're not sure of the proper citation form. (Why you would be citing an English law dealing with rent on co-owned property is beyond me, but hey, it's your brief, not mine.) You don't want to commit the faux pas of citing the statute in the wrong form, which would be instantly recognized by every appellate judge on the bench. What to do?
Well, cheer up, Sparky. There are untold benefits of being a regular reader of this blog, and one of them is that I have nothing better to do than scrounge around the Ohio Supreme Court website looking for ways to fill up five posts a week. Today I came across the new Writing Manual issued by the court, and right there on page 56 is the answer to your question of how to cite foreign statutes: "Statue of Anne (1705), 11 Eng.Stat. 161, Chapter 16, Section 27."
Now, I realize that unless your name is Antonin Scalia, you have little occasion to be citing three-century-old laws. Permit a digression here: I think Scalia makes stuff up. I was reading his opinion in District of Columbia v. Heller, the gun rights case from 2008, when I came across a quote supposedly from a parliamentary debate in 1780, for which Scalia cites "49 The London Magazine or Gentleman's Monthly Intelligencer 467." How would you go about checking this? What do you, fire up Lexis and then, "Hmm, there's my Ohio cases database... and there's the Federal and state criminal cases database... Oh, there it is! My 18th Century English Parliamentary Debates database!" Sorry, Tony, this guy's not buying it.
Anyway, the Writing Manual, subtitled "A Guide to Citations, Style, and Judicial Opinion Writing" -- I'm guessing the title of this post finished a close second in the running for the subtitle -- is chock full of helpful information. First, there are changes to the citation form. Not just on arcane subjects like ancient English statutes, or how to cite the Texas Water Code should the need arise. (And do it while you can; given that Texas is in the third year of what some climatologists think could be a ten-year drought, there might not be a Texas Water Code much longer.) It seems that the method of citing Ohio cases have undergone a major revision.
The major one is that the date of a judicial opinion now appears at the end of the citation. For reasons known only to them and their gods, those who make these decisions had previously determined that the date should follow the name of the case: "District of Columbia v. Heller (2008), 128 S.Ct. 2873." I went to law school at Case Western Reserve, which, in keeping with its self-designated nickname "the Harvard of the Midwest," thought of itself as a "national" law school, often pretending that Ohio didn't even exist, and thus used the Bluebook Uniform System of Citation, in which the date went at the end, hence "District of Columbia v. Heller, 128 S.Ct. 2873 (2008)." (Digression No. 2. Note to CWRU administrators: Here's a clue. You don't see Harvard calling itself the Case Western of the Northeast, do you?) I used the Bluebook form for years before realizing that Ohio mandated a different form, then stubbornly clung to the former as my way of fighting The Man and speaking Truth to Power. Now that the two have been reconciled, well... another reason to choose life.
Warning: the Manual is not for the faint of heart. Apparently, May 1, 2002 is to Ohio citation forms as July 4, 1776 is to American history. Since then, almost all appellate opinions can be found on the Supreme Court's website. Before... well, the manual gives you pages of distinctions about "print published cases" and "non-print published cases" and "cases that we heard about, but can't find anymore," and the different ways of citing those cases. I read some of it, but then my head started to hurt, so I stopped. Key point, though: you now cite the appellate district, not the county. "State v. Crandall, 9 Ohio App.3d 291 (1st Dist. 1983)." So if you've got something that says the case came out of Licking County, you've got to figure out that that's in the 5th District. (Digression No. 3. Where did they come up with that name? A Beavis and Butthead episode?)
Some nits to pick. First, in addition to the Ohio citation, you're also supposed to give the Northeastern Reporter cite. "Hello, this is 1990 calling." I haven't used the Northeastern Reporter in ages. Now, you're probably thinking, "Yes, Russ, I know that in the lower regions of the practice of law where you regularly dwell, you use only Ohio case books, but in the rarefied higher strata, there are law firms that deal in nationwide litigation, and hence purchase only the regional reporters, rather than reporters for each state." Well, here's some news: nobody -- not me, not the big law firms, not the megafirms -- buys law books any more. They do all their research on computers, and if they practice nationally, they'll have the database for all states, which means that they plug in any Ohio cite and it'll come up.
That leads to Nitpick Number Two: if the case isn't print-published and isn't on the Supreme Court web cite, the only place you're going to find it is on a web reporter. There's two kinds of people in this world: those who use Lexis and those who use Westlaw. (Digression No. 4: This system of arbitrarily defining the world into binary groups is sometimes called Tuco's Law of Duality, after the character played by Eli Wallach in The Good, the Bad, and the Ugly, e.g., "There are two kinds of people in this world, my friend: those with guns and those without guns," which aptly describes various parts of the City of Cleveland. My favorite along these lines is, "There are two kinds of people in this world: those who think there are two kinds of people in this world, and those who don't.") According to the Manual, however, there is only one kind of people in this world: those who use Westlaw. I guess there's no real way around this, other than making everybody use both; it's one or the other. But for me it's a bummer. I started out with Lexis, then switched to Westlaw, found it much inferior for my purposes, so went back to Lexis, although I was still paying for Westlaw because they wouldn't let me out of the three year contract even when I threatened to use this site to tell everybody that their program sucks, which I just did.
There's lot's more, of course. Check out page 75, where you'll find a discussion of "signal words." I'd tell you what they are, but why spoil the surprise?
But wait! There's more! That's just Part One. Part Two is the Style Guide, and Part III is entitled, "Structure of a Judicial Opinion," intended to provide helpful hints to judges in how to write opinions.
I'll talk about that tomorrow, and have some helpful hints of my own. You can only imagine.