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How should English lawyers format US citations?

Persuasive authority is a difficult concept in the law, forming a difficult philosophical conundrum for the few scholars to consider it (see, eg, G Lamond, Persuasive Authority in the Law (2010) 17 Harv Rev Phil 16). Yet, even if we do not quite know why persuasive authority is so influential, it is, as a practical matter, a very useful thing. However, when judges or advocates bring up persuasive authorities from other jurisdictions, a difficult stylistic question is raised: how to format the citation?

A problem from across the Pond

This problem is most acute with American cases, because American citations are simultaneously recognisably similar to English ones, but different enough to be annoying. The formal authority given by the (good, but fallible) manual of OSCOLA is that we should simply cite cases from other jurisdictions as they are cited there, with the appropriate removal of full points (see § 2.8.1). The result is, to use the official examples:

Henningsen v Bloomfield Motors Inc 161 A 2d 69 (NJ 1960)
Michael v Johnson 426 US 346 (1976)

This Blue Book format has some advantages, particularly in the decision to place the court parenthtical after the page number, thus allowing the pinpoint citation to be next to the page. A weakness of OSCOLA is that the court name disrupts this synergy. Look at, for example, the ├Žsthetic interruption in the citation: [1969] 1 AC 645 (PC), 675. However, the obvious fallacy of Blue Book format is relegating the year of the case to the end of the citation. First, it entirely ruins any possibility of symmetry of reportter and neutral citations, because the year is the volume number in netural citations, and therefore must come first. Second, in running text, the most important and essential datum about a case is obviously the year! The year allows the reader to immediately know if the case predated a statute which changed the underlying framework, or political events which negated the circumstances of the case. Years are even important when browsing an English law library, as even old bound voulmes of reports tend to have the year prominently featured on the spines. The date of the case is especially important for English judges citing American cases as persuasive authority in any matter of public law, because the changing constitutional framework in America means that the year is essential to determining how persuasive the case is likely to be. Thus, one possible approach is to move the year to the beginning of the citation (ie, (1976) 426 US 346).

The Present War

At present, there is a severe conflict between the judiciary and the ICLR over which approach is to prevail. This was illustrated in the recent case of LA Micro Group (UK) Ltd & Anor v LA Micro Group Inc & Ors [2021] EWCA Civ 1429; [2022] WLR 336. Sir Christopher Floyd (with whom Newey & Lewison LJJ agreed) took a bold and chivalrous stand in favour of OSCOLA and formatted the citation of a persuasive SCOTUS decision as follows:

New Hampshire v Maine 532 US 742 (2001)

However, the ICLR took a different approach, and in their report, they cite the same authority as:

New Hampshire v Maine (2001) 532 US 742

Choosing the winner

This internecine warfare between our judges and our law reporters—both essential to the proper administration of justice in this country—will not do. We cannot have esteemed jurists like Sir Christopher Floyd or august institutions like the ICLR forced to waste their precious time childishly changing back each others’ citations. One approach must prevail!

Therefore, by virtue of no powers other than a willingness to say things online, your correspondent shall decree a winner. As noted supra both sides have their merits, but, ultimately, the ICLR approach is superior. The smooth flow of a well-typeset judgment is an aid to the reader, and the jarring placement of a year at the end of a citation interrupts the beauty of a good law report. Furthermore, while the principle behind OSCOLA’s suggestion of citing reports as in their original jurisdiction is good (and prevents confusion), when an American case is cited in an English ccourt, it is done for the purposes of enriching English law, and therefore is best understood in context as an Anglicised American case. Moving the year has no real drawback; it does not displace any of the essential information for locating a case within the bound volumes of United States Reports, and can be a great help in locating recent cases, as there has not for a matter of several years been a new edition of the US Reports (this itself has led to unsightly underscores in American citations). All in all, the ICLR is correct, and the judiciary and OSCOLA are, with the greatest of respect, incorrect. Long live putting the year first!

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