LawProse Lesson 303
Cleaned-Up Quotations and Citations
Bryan Garner Garner
Last week, we discussed the circumstances in which it's permissible to tacitly change a quotation to regularize it to house style. This week, we'll discuss another type of cosmetic alteration, something like a bibliographic face-lift: the "cleaned-up" quotation.
In recent years, some legal writers have become so obsessed with noting every little bibliographic detail-for example, a parenthetical saying "brackets in original in second instance only" or "ellipsis in original source quoted within quotation"-that there has been an understandable backlash to this cumbersome equipment. Increasingly, we see quotes within quotes within quotes. Signaling such minutiae becomes both tedious and pointless. If a recent opinion quotes an earlier source, using ellipsis dots and brackets, and in quoting that opinion you need to add still more, it's fair to clean it up and simply signal that you've done so. The way to do that is to add "(cleaned up)" at the end of the citation. This signal solves a problem that is bound to grow worse as more and more opinions contain third- and fourth-generation repetitions of quotations.
You must not-we emphasize, must not-introduce any change in the substance of the quotation. Only then does the method work.
The rationale behind the cleaned-up quotation is that when you use a quotation to draw on the authority of the court you're quoting, your reader doesn't need to know that the court itself was drawing on an earlier authority. In effect, the words of the quotation have become part of the new opinion.
Not this: The Ninth Circuit has noted that "[u]nder the Westfall Act, federal employees receive absolute immunity from suit 'for their "negligent or wrongful act[s] or omission[s] . . . while acting within the scope of [their] office or employment."'" Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (quoting Green v. Hall, 8 F.3d 695, 699 (9th Cir. 1993) (quoting 28 U.S.C. § 2679(b)(1))).
But this: The Ninth Circuit has noted that under the Westfall Act, "federal employees receive absolute immunity from suit for their negligent or wrongful acts or omissions while acting within the scope of their office or employment." Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (cleaned up) (referring to 28 U.S.C. § 2679(b)(1)).
Thanks-and praise-are due to Jack Metzler of Washington, D.C., who pioneered this practice.
Metzler, Jack, Cleaning Up Quotations (March 17, 2017). 18 Journal of Appellate Practice and Process, 2018, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2935374 or http://dx.doi.org/10.2139/ssrn.2935374
See United States v. Steward, 880 F. 3d 983, 986 n. 3 (8th Cir. 2018) which, in a footnote, cites the Metzler article and, appropriately cleaned-up says:
"Cleaned up" is used to eliminate unnecessary explanation of non-substantive prior alterations. This can be used when extraneous, residual, non-substantive information has been removed, in this case, internal quotation marks, brackets, additional quoting parentheticals and an ellipsis.
I offer an example of how I have used the cleaned-up quote to cut out extraneous matter. The original quote from McCutchen v. United States, 14 F. 4th 1355, 1466-1367 (Fed. Cir. 2021), GS here, is:
The analysis of the first two possibilities is particularly simple. If Chevron is inapplicable, 1367*1367 validity entails that the Final Rule's interpretation is the "best interpretation" of 18 U.S.C. § 922(o), with its incorporated "machinegun" term, as defined in 26 U.S.C. § 5845(b). See Chudik v. Hirshfeld, 987 F.3d 1033, 1039 (Fed. Cir. 2021) ("Where the Chevron framework is inapplicable, we determine the best interpretation of the statute for ourselves, while giving the agency's position such weight as warranted under [Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944)]." (citations and internal quotation marks omitted)).
The cleaned-up quote is:
If Chevron is inapplicable, validity entails that the Final Rule's interpretation is the "best interpretation" of 18 U.S.C. § 922(o), with its incorporated "machinegun" term, as defined in 26 U.S.C. § 5845(b). Where the Chevron framework is inapplicable, we determine the best interpretation of the statute for ourselves, while giving the agency's position such weight as warranted under Skidmore v. Swift & Co., 323 U.S. 134, 139-40.
The cleaned-up quote accurately states what the Court said and held in the full quote, but deletes a lot of the noise such as most minimally the parallel Supreme Court citations. I have also eliminated the brackets [] around the Skidmore citation. I have also lifted the quote from Chudik to the main text rather than as a parenthetical quote because the court clearly signaled that it was part of its analysis.
The person doing the clean up must bear the responsibility to assure that the clean up is faithful to the original.