Post by Kate Galloway and Melissa Castan. Cite as:
Kate Galloway and Melissa Castan, ‘Legal Citations 2.0’ Katgallow (21 June 2017) https://kategalloway.net/2017/06/21/legal-citations-2-0/
The leading work on legal citations in Australia is the Australian Guide to Legal Citation (‘AGLC’). The AGLC, currently working on a 4th edition, provides users with a comprehensive style guide for all legal writing from use of capitals, through to citation of international treaty materials. (For an example of the current application of the AGLC, see eg this article.)
The explosion of online and other digital sources poses a challenge to most standard r
eferencing styles – as is clearly articulated by Prof Patrick Dunleavy, in this post. For legal citation in Australia, much of this development has occurred since the publication of the third edition of the AGLC, making it timely to reconfigure some of the key guiding principles behind legal citation.
As editors of the Alternative Law Journal and the Legal Education Review respectively, Melissa Castan and I increasingly encounter diverse forms of reference and referencing. In response, and this post, we propose a reorientation of the analogue focus of the AGLC to adapt and address the digital landscape of legal scholarship.
The changing landscape of legal citation
While paper-based primary sources remain, many of these are also found digitally. On the other hand, some primary sources are found only digitally. Digital publication of secondary sources too, has proliferated both in proprietary databases and through open access law reviews and repositories. The purpose of citation is to allow the reader to follow the trail and to authenticate the source of the author’s contention. For citation, less is more.
As has been pointed out, a ‘legal citation has only one purpose: to lead its reader to the work cited, and this without enforced recourse to any other source of information, or data which should have been given in the citation itself.’
The legal citation system we still use, has its roots in a time when all sources were paper based. However the system maintains an ‘analogue mindset’ despite the parallel debate about open access to the law. To use the AGLC as an example, the categories of scholarly sources and their medium are interpreted as though they were physically available. Further, the citation system assumes a hard copy publication, or electronic version of print — without provision so far, of embedded links. An analogue mindset therefore potentially limits the extent to which the goals of citation might be realised.
But legal information now derives from diverse sources other than print: proprietary databases, universities, and libraries, repositories, commentators, and social media. Frequently the platform of publication reproduces or amplifies discipline information. The challenge is how to adapt existing norms of citation to facilitate scholarship — communication — beyond print and into the realm of otherwise frequently fickle digital formats.
In our view, all contemporary legal scholarship is digital scholarship. We focus here on secondary sources which we see as more challenging than primary sources, with a digital mindset.
What is a ‘digital mindset’ in legal citation?
The analogue mindset of citation assumes reading on paper—which of course does not facilitate connection like that available in digital formats.
In a current project, we are developing a system to embed a digital mindset into legal citation. We seek simplicity and consistency as key values that still support legal discipline’s norms of authority and verifiability, while accommodating more contemporary expectations of accessibility and connectivity – all building on the existing AGLC rules.
We tabulate our thinking about citation below. The Table expresses the key components of a citation as who, what, where, and when. Additional and more particular location—both pinpoint and URL—may be added where appropriate. In particular, and representing a digital mindset, the latter ‘where’ is a digital locator. Rather than a steadfast rule, a writer needs to consider how the reader will ‘follow the scholarly trail’, and to distinguish a digital source from an analogue one.
Most works have an author, whether a person (or group of people) or institution. Web sites and web pages, however, are unlikely to disclose their author. For these sources, the name of the web site or web page will lead the citation.
Most works have a title. To avoid confusion between formatting of titles in italics or enclosed by inverted commas, where the title is standalone we suggest it be italicised. This principle applies to books, pre- and post-prints, and the home page of a web site.
Where a title forms part of a larger work, such as a journal or edited volume, or a named page within a web site, the AGLC provides for the title to be enclosed by inverted commas, with the larger work in italics, and we maintain this practice.
The ‘where’ relates to the publisher, the journal, or the platform for publication. Publisher and journal are familiar under the existing rules, but the platform for publication resolves issues regarding e-books (items 2 and 3), repositories (item 5), and social media (items 8-13).
Importantly, by extending the existing rules any media can be accurately cited according to foundation principles. Because a repository differs from a journal or collection, it is cited as a de facto publisher.
In a change from existing practice, and to align with foundation principles, we suggest also that a conference or event is taken to be a ‘collection’: effectively a platform for publication of a paper, presentation, or speech. Thus the title of the paper would be enclosed in inverted commas, and we suggest that the name of the conference or event where the paper was presented be italicised.
E-book citation will vary. A commercially published e-book, while not paginated in the way of a hard copy book, will be located simply with reference to the publisher. However it should be noted as ‘(e-book)’, to alert the reader to the issue of pinpoints (see items 2 and 3). Some e-books will appear online on one or more platforms. Those platforms will assist the reader in locating the e-book, just as noting the publisher will assist in tracking. We suggest citing the website (for example the author’s own website) or platform (eg iTunes) as the ‘where’, followed up with the URL (item 3).
The AGLC citation format designates the ‘when’ of publication through dates, as well as by volume and issue numbers as proxies for more specific time of publication. This is generally straightforward, and should be maintained. However somewhat more challenging in terms of citation, is the practice of noting dates of publication online where the uploading date differs from the actual date of publication.
As journals take on rolling digital publication, uploading articles as they complete the editorial process, the actual date of publication will precede the date of publication of that edition of the journal. Indeed the full citation may not become available for some time after the individual article is itself published. Pending the release of the full citation, the publication date will necessarily prevail.
For other articles, as authors take time to upload their work onto repositories, there may be instances of a paper presented at a conference some years ago that bears a much later publication date. In this case, as a presentation, the date of the presentation is the relevant date rather than the date of publication.
The start page of a work or its pinpoint necessarily comprehends a hard copy or a digital reproduction of the hard copy. Some services, such as LexisNexis, interpose the hard copy page numbers within html or PDF text, so that the writer can avail themselves of the traditional starting page and pinpoint. With many other digital works however, this is not available. There should, however, be other pointers in the citation—either as an e-book, or through a URL—that the reader can comprehend why there is no pinpoint, but has sufficient information to track the pinpoint readily.
The final ‘where’ relates to the digital locator of that resource. In the absence of wide adoption of digital archiving tools in Australian legal scholarship (such as Perma), for now the ultimate ‘where’ is a URL. We suggest however that where available, a DOI is used. A digital locator will not be relevant in circumstances where a proprietary database houses a journal article, for example. It will be relevant for most resources that are located in open access locations online. Rather than second guess formats in terms of digital or ‘published’, it is suggested that where an open digital locator is available, that locator is cited.
Beyond these traditional forms of scholarship, we include audio (item 13) and audiovisual formats (item 12), as well as code — both proprietary (item 14) and open source (item 15). Increasingly, such formats will contain legal scholarship or be the subject of legal scholarship, and so will need to conform to the discipline’s norms of citation.
There is no doubt that further (digital) sources of legal information will emerge – it is impossible to catalogue each possible source by type. We hope however that this process of creating references according to foundation principles of simplicity, consistency, and traceability, will promote clarity in legal referencing.
What do you think? We’d love to hear your thoughts.