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New Twist on Legal Citations: The "(Cleaned Up)" Parenthetical

A useful development, which dozens of court opinions have now used.

A recent Eighth Circuit decision contains this passage:

The first Gingles precondition requires that "the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district." LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (cleaned up).

Here is what the original passage from the cited decision says:

The Court has identified three threshold conditions for establishing a § 2 violation: (1) the racial group is " ' "sufficiently large and geographically compact to constitute a majority in a single-member district" ' "; (2) the racial group is " ' "politically cohesive" ' "; and (3) the majority " ' "vot[es] sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." ' " Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (quoting Growe, 507 U.S., at 40, 113 S.Ct. 1075 (in turn quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986))). These are the so-called Gingles requirements.

Normally, without the "(cleaned up)," the Eighth Circuit decision would have quoted this as either:

The first Gingles precondition requires that "the racial group is "'"sufficiently large and geographically compact to constitute a majority in a single-member district."'"" LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (quoting Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (quoting Growe, 507 U.S., at 40, 113 S.Ct. 1075 (in turn quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986))))

or, better, as:

The first Gingles precondition requires that "the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district." LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (internal quotation marks and citation omitted).

But "cleaned up" basically means "internal quotation marks, brackets, ellipses, and citations omitted" -- the original LULAC passage might thus have been written as:

The Court has identified three threshold conditions for establishing a § 2 violation: (1) the racial group is "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the racial group is "politically cohesive"; and (3) the majority "votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (cleaned up) (indirectly quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)). These are the so-called Gingles requirements.

(The "indirectly quoting" parenthetical is included just to make clear to the reader why they are the so-called Gingles requirements; if this didn't have to be explained in context, the "indirectly quoting" could be dropped.)

I like "cleaned up," because it helps focus readers on the important thing -- the substance of the quoted text -- without distracting them with the unimportant. But, more importantly, many courts seem to like it: Since it was proposed in 2017 by appellate lawyer Jack Metzler (@SCOTUSPlaces), well over 100 opinions from many courts, federal and state, appellate and trial, have used it. A Utah Court of Appeals opinion, for instance, explains it thus:

The parenthetical "cleaned up," while perhaps unfamiliar, is being used with increasing frequency to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation. For an example of its use in a published opinion, see United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017).

And many cases use it without explaining, which is a sign of its acceptance. I'll use it from now on when filing briefs in courts that regularly use it, and will likely use it even in courts that don't regularly use it, though there I'll add a footnote explaining it and citing authoritative courts that have used it (as in the Utah opinion I just quoted). I'll also use it in law review articles, and if law review editors complain, I'll cite the D.C. Circuit at them.

To be sure, there is a risk that "cleaned up" may be used to sweep some complexities under the rug, and may sometimes be used outright dishonestly. But that's a possibility for any alteration, especially brackets and ellipses (and for that matter the decision when to start and end quoted text). Authors know that the reader may well check the original source, and will spot such misuses; that should be deterrent enough to such a misuse.

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  • mad_kalak||

    Interesting, and a good step forward to reduce legalese, and like you said, you can always find the original source. Along those lines, also find is a big problem these days is amicus curiae briefs or decision that cite websites that later go defunct. California provides an archive of sites that are cited in decisions, but I don't know how common that is.

  • Soronel Haetir||

    My sense is that most courts that cite online material archive the page as it appeared at that moment.

  • apedad||

    "To be sure, there is a risk that "cleaned up" may be used to sweep some complexities under the rug, and may sometimes be used outright dishonestly."

    Er, don't lawyers, law professors, judges, law clerks, etc. write legal briefs, court decisions, amicus curiae briefs, etc?

    You mean there are bad lawye. . . nevermind. . .

  • Bored Lawyer||

    Generally agree. Many published cases have multiple layers of quoting and citing -- the case you cite then cites another case, which then cites another, and so on, and so on. At some point it gets tiresome.

  • Eddy||

    "This is the only just and human rule. Yukin v. Kismiarse, 21 Yomomma 1."

  • ||

    If Metzler had patented this formulation and licensed it in exchange for a small fee for each use, he'd have cleaned up!

  • DodgerBobH||

    I''m not a Latin expert or anything, but it seems a Latin term might class things up a bit.What about "purgato"? If I understand correctly, that is the past participle of "to cleanse."

  • Noscitur a sociis||

    These sorts of parentheticals are pretty direct: I'm not aware of any equivalents that use Latin. (I also don't think would be the appropriate Latin word, for both semantic and grammatical reasons, but that's a different issue.)

  • JoeGoins||

    > "I like 'cleaned up,' because it helps focus readers on the important thing—the substance of the quoted text—without distracting them with the unimportant."
    > "[I] will likely use it even in courts that don't regularly use it, though there I'll add a footnote explaining it . . . ."

    If that's the case, why not use footnotes for the citation as they are becoming more accepted in the legal community? They present a more readable text which won't distract from the argument.

  • Noscitur a sociis||

    Footnote citations are very inconvenient for documents which are going to be read electronically, which more and more pleadings are. Moreover, this doesn't solve the problem of ungainly quotations like,

    "the racial group is "'"sufficiently large and geographically compact to constitute a majority in a single-member district."'""

  • JoeGoins||

    My focus was on making the whole document readable, not just quotations and citations. While I disagree with Bryan Garner on several things, he does make a good point that in-text citations overburden the text—the argument itself. Earlier this month, he tweeted a photo of Cooper Industries v. Leatherman Tool Group which compared how the opinion was written with how it could have been written. The difference is clear: footnotes make the text more readable. In his photo, the footnoted side on the right doesn't even have (cleaned up). Imagine how many fewer pages and how much more readable the opinion could have been if (cleaned up) and footnotes were both used.

  • phoqueue||

    Footnotes had a short revival a few years ago, right up until large portion of judges switched to reading electronically. I wasn't a huge fan then, but I consider footnotes a clearly poor practice now.

  • JoeGoins||

    As I am not a judge, I don't know exactly how they receive their files. I'd wager to say they pull PDFs off the court's servers. If that is the case, they can just as easily access the footnotes as they can in-text citations.

    In-text citations are archaic. They are a byproduct of typewriters and the established legal community passed on the style even after the typewriters were replaced.

  • JoeGoins||

    Another issue to look at is how judges read documents, and I'm not referring to the medium they use. If they read a document only once, it would probably be beneficial to use in-text citations since it allows them to track the argument in the same order they see it. My preference is to read a case in order to understand its framework and then to go back and analyze the cited material for persuasiveness, flaws, etc. I find it to be a quicker method than "one and done."

  • David Nieporent||

    Citations do not "distract from" the argument; they are part of the argument. If someone quotes a case for a proposition, I need to know whether it's from the Supreme Court or 2nd Circuit, in which case it's binding; the 3rd Circuit, in which case it's highly persuasive; the 9th Circuit, in which case it's wrong; a local district court, in which case it's influential, or a distant district court, in which case it's meh. I need to know whether it's from 1968 or 2014.

  • JoeGoins||

    > "Citations do not "distract from" the argument; they are part of the argument."

    I respectfully disagree. Citations are proof of what is being stated. The argument is how those statements are used.

    > "If someone quotes a case for a proposition, I need to know . . . ."

    #1. Not a valid point because this information is still in the footnotes.

    #2. This can be accomplished by better writing. For a simple example, an author should avoid this format:

    Even the United States Supreme Court admits it "hardly ever strikes down a policy as illegitimate under rational basis scrutiny." Trump v. Hawaii, 585 U.S. ___ (2018).

    and use the following style to acknowledge the case, the court, and the timeframe within the text of the argument:

    Recently in Trump v. Hawaii, the United States Supreme Court acknowledged that it "hardly ever strikes down a policy as illegitimate under rational basis scrutiny."1
    .
    .
    .
    .
    1. Trump v. Hawaii, 585 U.S. ___ (2018)
  • tce||

    An even better option: just drop a footnote the first time you cite a case and clean it up, clarifying that all quotes are cleaned up. See United States v. Marshall, 872 F.3d 213, 217 n. 6 (4th Cir. 2017); Sims v. BB&T Corp., No. 1:15-CV-732, 2018 WL 3466945, at *1 n.1 (M.D.N.C. July 18, 2018) ; In re CIL, Ltd., No. 18-CV-2226, 2018 WL 2383102, at *2 n.5 (S.D.N.Y. May 4, 2018).

  • Dilan Esper||

    The background problem here is that a lot of courts and lawyers string together quotes from cases as a substitute for explanation, argument, and analysis. And this repeats over time, producing opinions full of nested quotes.

    It is often much cleaner to just explain the case, especially if the rule is fairly non-controversial. "In Texas v. Johnson, the Court held that a state statute criminalizing the burning of the American flag violated the First Amendment" is better than pulling some quote out of Brennan's opinion.

  • phoqueue||

    I like the concept, but "cleaned up" feels jarringly idiomatic, no doubt at least partially owing to its newness. It also feels a bit judgmental, like the prior version was dirty. Maybe "formalities omitted" would suit me.

  • arch1||

    Typo in final sentence: "that should be deterrent enough to [discourage] such a misuse."

  • Ramer||

    The Ninth Circuit used the "cleaned up" notation in an unpublished decision last year Lopez v. NAC Mktg. Co., LLC, 2017 WL 6547495, at *1 (9th Cir. Dec. 22, 2017)

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