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U.S. Supreme Court,
Law Practice

Mar. 3, 2021

So fresh, so clean

If you don’t spend a lot of time on #appellatetwitter, you may have missed a recent momentous event in citation history.

Glendale Courthouse

Ashfaq G. Chowdhury


Columbia Law School, 2000

If you don't spend a lot of time on #appellatetwitter, you may have missed a recent momentous event in citation history. The lawyers and judges who get excited about these kinds of things were all, uh, atwitter on February 25 when the U.S. Supreme Court released its opinion in Brownback v. King, 2021 DJDAR 1792 (Feb. 25, 2021). This was the portion of the opinion that caused all the fuss:

"The Court has explained that the judgment bar was drafted against the backdrop doctrine of res judicata. ... To 'trigge[r] the doctrine of res judicata or claim preclusion' a judgment must be 'on the merits.' Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). Under that doctrine as it existed in 1946, a judgment is 'on the merits' if the underlying decision 'actually passes directly on the substance of a particular claim before the court.' Id. at 501-502 (cleaned up)." (Citation omitted; emphasis added.)

You read that correctly. The last parenthetical in that paragraph was in fact "(cleaned up)." That was not a mistake or something left over from a clerk's draft. The (cleaned up) parenthetical is a novel citational form, used here for the first time by the U.S. Supreme Court; it's meant to signal that internal citations, ellipses, alterations and/or quotation marks have been omitted from the quoted material, but that the substance hasn't been changed by the writer. In essence, (cleaned up) means the meat of the quote has been faithfully conveyed -- and spares the reader the boring details. Think of it as a sort of Marie Kondo approach to citation: Do long, turgid citations spark joy?

The push among #appellatetwitter and elsewhere among appellate practitioners for the adoption of (cleaned up) has been gathering steam since appellate practitioner Jack Metzler first proposed the new parenthetical in 2017 on Twitter. He later published an article outlining how such a parenthetical could be used, and the potential benefits of its adoption. See Jack Metzler, "Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017).

In short, Metzler's proposal was that (cleaned up) could be used when the writer had removed non-substantive or "superfluous material like brackets, ellipses, quotation marks, internal citations, and footnote references" where "none of it matters for either understanding the quotation or evaluating its weight." The use of (cleaned up) would free the writer to dispense with trying to "write around [changes] or fiddle with brackets, ellipses, quotation marks, and parentheticals," and spare both the reader and the writer joyless parentheticals detailing the removal of internal quotation marks, noting what previous authority had been cited, and so on. As Metzler notes, the "cleaned up" or "unadorned quotation is easier to read without the additional quotation marks, brackets, and ellipsis, and its citation is less distracting and occupies fewer words without a 'quoting' parenthetical." In his article, Metzler drafted a proposed rule to be inserted into a future edition of the Bluebook.

Here's an example of how one might use (cleaned up). This is from Farris v. Seabrook, 677 F.3d 858, 863 (9th Cir. 2012):

"'Under this standard, [a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.' Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (alteration in original) (quoting Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir. 2010)) (internal quotation marks omitted)."

Using (cleaned up), this citation is simplified to this:

"'Under this standard, as long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.' Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (cleaned up)."

Metzler's proposal was largely embraced by #appellatetwitter, and soon began appearing in court opinions; overburdened district courts in particular seemed willing to embrace the new parenthetical. According to Metzler, as of August 2019, (cleaned up) had been used by almost all the federal courts of appeal, dozens of U.S. district courts, many state supreme courts (although apparently not the California Supreme Court) and state intermediate appellate courts. Bryan Garner, the legal-writing guru, has also endorsed (cleaned up) on his blog, LawProse. And now Justice Clarence Thomas, writing the unanimous opinion in Brownback, has joined the wave and put the U.S. Supreme Court's imprimatur on (cleaned up).

All that said, I had my own initial qualms: (cleaned up) felt a little too casual or chummy. As a friend observed, if there were some Latin phrase that meant the same thing, we would probably all embrace that as a new parenthetical without a second thought. (It appears purganda would be the Latin equivalent, but that sounds like a type of digestive issue.) But citational forms are based on convention, and the citational hive mind appears to have settled on the new convention of (cleaned up). Putting aside qualms about the term feeling a bit colloquial, (cleaned up) is clearly on the side of light and good: It's easy to use, makes sense, cuts word counts, saves trees and toner, and, perhaps most importantly, helps make legal writing less stilted and more readable.

But let's pause for one little drop of rain on this parade: The successful use of (cleaned up) requires a certain amount of faith placed in the writer; if readers are worried that the writer might be up to no good and hiding manipulation behind (cleaned up), the utility of the parenthetical will crumble. It's relatively easy to check the fidelity of a quotation, so wrongdoers should be easily smoked out. But given this concern, as another friend noted, it's probably easier for courts to spearhead the use of (cleaned up), as courts are, for better or worse, generally given the benefit of the doubt. Hopefully, over time, good-faith users of (cleaned up) will be able to establish its widespread utility -- and reliability.

The Bluebook has not yet adopted the new rule Metzler proposed in his 2017 article, but it does appear that a critical mass of legal writers has spoken. You, too, can now join the movement. Let's clean up these citations. 


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