Has there ever been a time since the advent of legal reporting systems when citations have been under greater attack? Driven by their unwitting reliance on AI to generate legal briefs, lawyers seem to have forgotten everything they ever learned in law school about how to research and cite the law. Standing as a bulwark [\u2026]<\/p>\n
Has there ever been a time since the advent of legal reporting systems when citations have been under greater attack? Driven by their unwitting reliance on AI to generate legal briefs, lawyers seem to have forgotten everything they ever learned in law school about how to research and cite the law.<\/p>\n
Standing as a bulwark against this attack, one would think, is The Bluebook<\/a><\/em>, the uniform system of citation that is among the first things taught to a first-year law student, and to which virtually all lawyers are expected to abide, except where excused by local rules of court.<\/p>\n Yet now that very bulwark is itself under attack, thanks to the release last May of its 22nd edition, which introduced Rule 18.3, The Bluebook\u2019s<\/em> first standardized format for citing to generative artificial intelligence content.<\/p>\n While the addition of AI citation guidance would seem to reflect The Bluebook\u2019s<\/em> expected role of evolving to address new types and formats of sources, the new rule has sparked criticism from legal scholars and practitioners who argue it is fundamentally flawed in both conception and execution.<\/p>\n As Cullen O\u2019Keefe, director of research at the Institute for Law & AI, says in his analysis, \u201cCiting AI in the New Bluebook<\/a>,\u201d \u201cI\u2019m afraid The Bluebook<\/em> editors have fallen a fair bit short in the substance and structure of Rule 18.3.\u201d<\/p>\n Susan Tanner<\/a>, associate professor of law at the University of Louisville, put it more bluntly<\/a>: \u201cThis is bonkers.\u201d<\/p>\n So what\u2019s the reason for all the brouhaha? Let\u2019s start with what the rule says.<\/p>\n The new Rule 18.3 is divided into three subsections, each designed to address different types of AI-generated content:<\/p>\n For each of these, the citation rules differ slightly. Notably, the rule requires the author who is citing AI to save and store a screenshot of the AI output as a PDF.<\/p>\n According to a Bluebook<\/em> citation guide published by the law library at the University of Cincinnati<\/a>, citations to a large language model (LLM) under 18.3(a) must include:<\/p>\n For AI search results under 18.3(b), the guide says, the citation must include:<\/p>\n For AI-generated content under 18.3(c), the citation should conform to the relevant subrule for that type of content. In addition:<\/p>\n Some critics say that even just this structural logic of the new rule is confusing.<\/p>\n \u201cWhat is supposed to be the difference between \u2018large-language models\u2019 (Rule 18.3(a)) and \u2018AI-generated content\u2019 (Rule 18.3(c))?\u201d asks O\u2019Keefe. \u201cContent generated by LLMs is a type of AI-generated content!\u201d<\/p>\n Perhaps the most significant criticism of Rule 18.3 is its failure to address the fundamental question of when AI citations are appropriate.<\/p>\n As Jessica R. Gunder, assistant professor of law at the University of Idaho College of Law, argues in her comprehensive critique, \u201cYikes! The Bluebook\u2019s Generative AI Rule is Flawed<\/a>,\u201d the rule provides \u201cdetailed guidance regarding how a writer should cite their use of generative AI technology but does not include any discussion or deliberation regarding when a citation is appropriate.\u201d<\/p>\n This absence of guidance, Gunder argues, makes it unclear whether Rule 18.3\u2019s citation form is to be used where a legal author relies upon AI as a source of authority or evidence, or also where AI is employed as a research or writing tool.<\/p>\n In the latter case, when AI is used as a tool, then the traditional rationales for legal citation \u2014 allowing readers to locate sources, communicating authority weight, demonstrating credibility and avoiding plagiarism \u2014 do not support citation to the tool, she argues.<\/p>\n \u201cUltimately, generative AI is a tool, not an authority in and of itself,\u201d Gunder writes. \u201cMuch like a professor would not cite to their research assistant, a partner at a law firm would not cite to the legal assistant who put together the first draft of a motion, or a judge would not cite a law clerk who crafted the first draft of an order, one would not expect a legal writer to cite to a generative AI tool.\u201d<\/p>\n Critics also say that Rule 18.3 suffers from numerous internal inconsistencies. O\u2019Keefe points out that The Bluebook\u2019s<\/em> own examples fail to follow the stated requirements. While Rule 18.3(a) specifies that citations should include \u201cthe exact text of the prompt submission in quotation marks,\u201d The Bluebook<\/em> provides an illustrative example that contains no quoted prompt text whatsoever.<\/p>\n Similarly, the rule is inconsistent about whether to include company names alongside model names. O\u2019Keefe points to two examples given by The Bluebook<\/em>, one of which gives the company name of OpenAI while the other gives no company name.<\/p>\n Gunder, pointing to these same inconsistencies with the new rule, writes, \u201cThese inconsistencies make it impossible for legal writers to discern whether they are complying with the parameters set by Rule 18.3(a),\u201d undermining The Bluebook\u2019s<\/em> fundamental goal of creating uniform citation standards.<\/p>\n The rule\u2019s technical requirements also present practical challenges, critics say. Gunder cites empirical studies showing that legal professionals lack basic technological competency, with only about one-third of law students able to perform fundamental Microsoft Word tasks like accepting track changes or inserting hyperlinks.<\/p>\n Even more concerning, while over 85% of lawyers can convert files to PDF, only 4% can successfully create PDFs that maintain active hyperlinks and convert headings to bookmarks.<\/p>\n \u201cThe Bluebook\u2019s citation requirements reflect an optimistic view of the technological skills possessed by attorneys,\u201d she writes. \u201cHowever, the reality is significantly bleaker.\u201d<\/p>\nWhat the New Rule Requires<\/h3>\n
\n
\n
\n
\n
When Should AI Be Cited?<\/h3>\n
Internal Inconsistencies<\/h3>\n
Unreasonable Technical Burden<\/h3>\n