LawProse Lesson 303
Cleaned-Up Quotations and Citations
Bryan Garner Garner
Last week, we discussed the circumstances in which it's permissible to tacitly change a quotation to regularize it to house style. This week, we'll discuss another type of cosmetic alteration, something like a bibliographic face-lift: the "cleaned-up" quotation.
In recent years, some legal writers have become so obsessed with noting every little bibliographic detail-for example, a parenthetical saying "brackets in original in second instance only" or "ellipsis in original source quoted within quotation"-that there has been an understandable backlash to this cumbersome equipment. Increasingly, we see quotes within quotes within quotes. Signaling such minutiae becomes both tedious and pointless. If a recent opinion quotes an earlier source, using ellipsis dots and brackets, and in quoting that opinion you need to add still more, it's fair to clean it up and simply signal that you've done so. The way to do that is to add "(cleaned up)" at the end of the citation. This signal solves a problem that is bound to grow worse as more and more opinions contain third- and fourth-generation repetitions of quotations.
You must not-we emphasize, must not-introduce any change in the substance of the quotation. Only then does the method work.
The rationale behind the cleaned-up quotation is that when you use a quotation to draw on the authority of the court you're quoting, your reader doesn't need to know that the court itself was drawing on an earlier authority. In effect, the words of the quotation have become part of the new opinion.
Not this: The Ninth Circuit has noted that "[u]nder the Westfall Act, federal employees receive absolute immunity from suit 'for their "negligent or wrongful act[s] or omission[s] . . . while acting within the scope of [their] office or employment."'" Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (quoting Green v. Hall, 8 F.3d 695, 699 (9th Cir. 1993) (quoting 28 U.S.C. § 2679(b)(1))).
But this: The Ninth Circuit has noted that under the Westfall Act, "federal employees receive absolute immunity from suit for their negligent or wrongful acts or omissions while acting within the scope of their office or employment." Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (cleaned up) (referring to 28 U.S.C. § 2679(b)(1)).
Thanks-and praise-are due to Jack Metzler of Washington, D.C., who pioneered this practice.
Metzler, Jack, Cleaning Up Quotations (March 17, 2017). 18 Journal of Appellate Practice and Process, 2018, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2935374 or http://dx.doi.org/10.2139/ssrn.2935374
See United States v. Steward, 880 F. 3d 983, 986 n. 3 (8th Cir. 2018) which, in a footnote, cites the Metzler article and, appropriately cleaned-up says:
"Cleaned up" is used to eliminate unnecessary explanation of non-substantive prior alterations. This can be used when extraneous, residual, non-substantive information has been removed, in this case, internal quotation marks, brackets, additional quoting parentheticals and an ellipsis.
I offer an example of how I have used the cleaned-up quote to cut out extraneous matter. The original quote from McCutchen v. United States, 14 F. 4th 1355, 1466-1367 (Fed. Cir. 2021), GS here, is:
The analysis of the first two possibilities is particularly simple. If Chevron is inapplicable, 1367*1367 validity entails that the Final Rule's interpretation is the "best interpretation" of 18 U.S.C. § 922(o), with its incorporated "machinegun" term, as defined in 26 U.S.C. § 5845(b). See Chudik v. Hirshfeld, 987 F.3d 1033, 1039 (Fed. Cir. 2021) ("Where the Chevron framework is inapplicable, we determine the best interpretation of the statute for ourselves, while giving the agency's position such weight as warranted under [Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944)]." (citations and internal quotation marks omitted)).
The cleaned-up quote is:
If Chevron is inapplicable, validity entails that the Final Rule's interpretation is the "best interpretation" of 18 U.S.C. § 922(o), with its incorporated "machinegun" term, as defined in 26 U.S.C. § 5845(b). Where the Chevron framework is inapplicable, we determine the best interpretation of the statute for ourselves, while giving the agency's position such weight as warranted under Skidmore v. Swift & Co., 323 U.S. 134, 139-40.
The cleaned-up quote accurately states what the Court said and held in the full quote, but deletes a lot of the noise such as most minimally the parallel Supreme Court citations. I have also eliminated the brackets [] around the Skidmore citation. I have also lifted the quote from Chudik to the main text rather than as a parenthetical quote because the court clearly signaled that it was part of its analysis.
The person doing the clean up must bear the responsibility to assure that the clean up is faithful to the original.
Supreme Court Case and Code Citations ("U. S." or "U.S.")
The Supreme Court’s Style Guide and opinions usually put a space between U. and S.–e.g. Loper Bright Ent. v. Raimondo, 603 U.S. 369 (2024). The Harvard Bluebook recommends not using the space, so the format is: 603 U.S. 369 (2024). The parties’ briefs in Loper Bright uses the no space citation convention consistent with the Harvard Bluebook. I use the no space convention in the book except when quoting that uses the single space convention. Similarly with cites to the U.S. Code: Supreme Court uses spaces (e.g. from Loper Bright, p. 390, “5 U. S. C. § 706"; Harvard Bluebook does not.
Short Case Citations
Short case citations can be handy when, after the full case citation is given, the case is then referred to in a context where the reader will recognize it as the shorthand case citation. Many lawyers and law students often just refer to the common shorthand where the intended audience knows the case referred to (either because the full case name was introduced earlier or the case is so well-known that the audience will recognize it). However, tax cases present a potential problem in choosing a good case name shorthand. I wrote sever paragraphs on the issue, but then decided to let ChatGPT Plus rewrite it for me. So here is the response which I have slightly edited (I have also deleted the bold face):
• Short case names are useful after a full citation has been given, or when the case is so well known that the audience will recognize it. Thus, Frank Lyon Co. v. United States, 435 U.S. 561 (1978), is commonly shortened to Frank Lyon.
• Government parties often make poor shorthand names, especially in tax cases. Many older tax cases were styled in the name of the individual Commissioner or other tax official then in office. Thus, Gregory v. Helvering, 293 U.S. 465 (1935), involved Commissioner Guy Helvering. Referring simply to Helvering can therefore be ambiguous because scores of tax cases bear his name. Gregory, or more commonly Gregory v. Helvering, is clearer.
• Moore v. United States, 602 U.S. 572 (2024), illustrates the problem. Its syllabus refers to the “Helvering line of cases” and later simply to “Helvering,” apparently meaning Helvering v. National Grocery Co., 304 U.S. 282 (1938), which had just been cited. But the Opinion of the Court in Moore itself also discusses Helvering v. Independent Life Insurance Co., Helvering v. Bruun, and Helvering v. Griffiths. In that setting, “Helvering” alone is potentially confusing. (The other concurring and dissenting opinions refer to other Helvering cases.)
• The better practice is to use the distinctive nongovernmental party as the shorthand where possible. To the Court’s credit, the Moore Opinion of the Court generally refers to National Grocery more fully as Helvering v. National Grocery Co. rather than relying on the ambiguous shorthand “Helvering.”
For example, Frank Lyon Co. v. United States, 435 U.S. 561 (1978) will often be short-handed to Frank Lyon.
Note that in the example shorthand United States is not in the shorthand. That occurs particularly in tax cases, I think, because the Government--either the United States as in Frank Lyon or, for cases arising in the Tax Court, the Commissioner of Internal Revenue (as a title rather than the individual serving as Commissioner). In the long-ago past, the actual party serving in the tax office (Commissioner or District Director) would appear in the name of the case. For example, in the leading case of Gregory v. Helvering, 293 U.S. 465 (1935), Guy Helvering served as Commissioner of Internal Revenue and was the proper named party. That changed later so that the title Commissioner of Internal Revenue is the proper named party. The reason it is important to know this bit of history is that sometimes the case is referred to as the Helvering case which is meaningless because it does not identify which among the many, many tax cases with Helvering in the title is being referred to. So, for clarity, you would have to identify the case as Helvering v. Gregory or sometimes just Gregory.
What set me off on this issue is that just today I was reading Moore v. United States, 602 U. S. 572 (2024), here, a major case. In the Court's Syllabus of the case (which is not part of the Opinion of the Court the following appears: "Helvering line of cases" and just "Helvering" (602 U.S., at 574.) The syllabus had identified a particular Helvering case in the immediately preceding paragraph: Helvering v. National Grocery Co., 304 U.S. 282 (1938) (602 U.S. at 573), so that presumably and actually was the Helvering case referred to. That Helvering case is cited in the opinion, but the opinion cites other Helvering cases: Helvering v. Independent Life Ins. Co., 292 U. S. 371, 378–379 (1934). (602 U.S., at 584.); Helvering v. Bruun, 309 U.S. 461 (1940), Helvering v. Griffiths, 318 U.S. 371 (1943). Also, the Opinion of the Court uses Helvering v. Gregory as the short hand. (602 U.S., at 589). The other opinions cite still other Helvering cases. To give the Court its due, the Opinion of the Court shorthands the case as Helvering v. National Grocery Co. (e.g., 602 U.S., at 588).
