Commonwealth of Virginia
v.
Harvard Law Review Association
76 U.Va 6 (2023)
Allard, J. delivers the opinion of the court.
This case began as an antitrust suit brought by the Commonwealth of Virginia against defendant, the Harvard Law Review Association (“the Association”) for its publication of The Bluebook: A Uniform System of Citation. The Association removed to the Court of Petty Appeals in accordance with the Petty Rule of Civil Procedure 1.[1] We are perplexed by this decision and cannot help but smile at defendant’s ill-judged removal motion. Indeed, counsel’s decision to defend the case before this Court borders on malpractice. Though we are eager to punish the Association for its error, we cannot. Ultimately, though it pains us to do so, we find for the Association, because to do otherwise would benefit 1Ls.
Background
The Harvard Law Review Association is a nonprofit organization registered under the “laws” of Massachusetts. The Association distributes and publishes the Bluebook, an infamous and universally mocked[2] manual on pedantry. The Bluebook has been a repeated subject of controversy. Beyond innumerable tortious injuries to law students and practitioners alike, the Bluebook has been accused of fostering elitism,[3] it has been protested by students of its own ilk,[4] and it has even been aesthetically linked with Nazi Germany.[5]
There are many reasons to sue the peddlers of the Bluebook. But the Commonwealth has sued only for the Association’s monopolization of legal citation recommendations. The Commonwealth’s allegations are as follows.
Firstly, the Harvard Law Review Association and its fellow cartel members, the Columbia Law Review, the Pennsylvania Law Review, and the Yale Law Journal, earn millions in profits from the Bluebook—as much as $27.4 million between 2011 and 2o20.[6] The Harvard Law Review Association receives the largest chunk of these profits. Indeed, for fifty years, the Association jealously kept 100 percent of Bluebook profits for itself.[7] Inevitably, much of those profits come from 1Ls who are forced each year to purchase the Bluebookfor their legal writing classes.
Second, the Association’s prescriptivist tendencies have resulted in frequent updates to the Bluebook and a rapid growth in its page count.[8] The Association thus benefits from a “planned-obsolescence business model” because “law review editors are pretty much forced to buy each successive edition.”[9]
Finally, the Association has sought to thwart the work of would-be competitors. In late 2014, the developers of an open-source legal citation manual called BabyBlue, informed the Association that they planned to publish their manual online. In response, counsel for the Association sent a letter to BabyBlue asserting that the manual’s publication would infringe the Bluebook’s trademark rights.[10] Despite the Association’s efforts, BabyBlue was published, albeit under the name The Indigo Book.[11]
I
The Virginia Antitrust Act, Va. Code. Ann. § 59.1-9.7, makes unlawful “[e]very conspiracy, combination, or attempt to monopolize, or monopolization of, trade or commerce of this Commonwealth.” Va. Code Ann. § 59.1-9.11 further provides that courts may assess “a civil penalty of not more than $100,000 for each willful or flagrant violation of this chapter.”
II
Jurisdiction is proper in this case. The Association, by their removal motion, has waived any argument regarding personal jurisdiction. Further, this Court has subject matter jurisdiction over all petty disputes related to the Law School. Because many at UVA Law would love nothing more than to stick it to the Association, this case is a quintessential petty grievance, and it thus falls within our jurisdiction.
We believe that the Virginia Antitrust Act clearly prohibits the Association’s monopolistic conduct. Indeed, it is clearly a flagrant violation subject to the heightened penalty. Nevertheless, we are bound to uphold it by a much more important body of law—the common law of this Court.
A decision against the Association would only benefit 1Ls, as they are the only students at the Law School who are likely to purchase a Bluebook. 2Ls and 3Ls have already purchased and long since forgotten about their copies of the Bluebook. And 1Ls must always lose.[12] This axiomatic rule is subject to only the narrowest exception: “1Ls may have rights when it is funnier for them to win . . . .”[13] Here, we recognize that it would be very funny to stick it to the dorks that write the Bluebook. But it is indisputably funnier to, after having recited a litany of criticisms of the Bluebook, nonetheless reach a ruling that is adverse to 1Ls.
Thus, we conclude that the Association may continue to monopolize the legal citation manual market, so long as the monopoly continues to primarily burden 1Ls. It is so ordered.
Moore, J. concurring in the judgment of the court.
I concur in the majority’s judgment in this case. But only a true gunner would write a COPA on the Bluebook over Fall Break. For that, I pity you.
Coleman, J. dissenting.
The majority erroneously concludes that this antitrust suit would only benefit 1Ls and future 1Ls. This conclusion is based on a fundamental misunderstanding of the damages in a class action antitrust case, which are calculated over the period of cartel misfeasance. So, 2Ls and 3Ls would be members of the relevant class.
But more importantly, I have two reasons for disagreeing with the majority’s ruling. First, I am a strict adherent to the Slatebook, the quirky but simplistic alternative style guide used by the Virginia Law Review. It is my intention to use every means of anticompetitive behavior to ensure that the Slatebook rules this land. Abusing my role on this court to effectuate that goal is a great opportunity.
Second, the majority does not consider the plight of the plaintiffs’ attorneys who stand to benefit the most from this type of case. And this is symptomatic of the general disdain for the plaintiffs bar among fancy law schools. None of you have the cajones to go years without income for just the prospect of a settlement, or the originality to think of novel causes of action. So, I will benefit the plaintiffs bar when I can.
Sandu, J. dissenting.
The only true and valid system of citation is the Law Weekly style guide. For this reason, I must respectfully dissent.
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tya2us@virginia.edu
tqy7zz@virginia.edu
jxu6ad@virginina.edu
ms7mn@virginia.edu
[1] See Comedy v. Libel Show, 74 U.Va 21 (2022) (“[W]e do what we want.”).
[2] See e.g., Richard Posner, What Is Obviously Wrong with the Federal Judiciary, Yet Eminently Curable, Part I, 19 Green Bag 2d 187, 194 (2016) (correctly identifying the Bluebook as “560 pages of rubbish”); Richard Posner, The Bluebook Blues, 120 Yale L.J. 850, 851 (2011) (accurately describing the Bluebook as “a monstrous growth”).
[3] Fred R. Shapiro & Julie Graves Krishnaswami, The Secret History of the Bluebook, 100 Minn. L. Rev. 1563, 1568 (arguing that the Bluebook’s arcane rules are “one more of the many factors alienating lay people from the legal system as a whole”).
[4] Kendra Albert, Harvard Law Review Should Welcome Free Citation Manual, Not Threaten Lawsuits, Harv. L. Rec., Feb. 12, 2016, https://hlrecord.org/harvard-law-review-should-welcome-free-citation-manual-not-threaten-lawsuits/.
[5] A. Darby Dickerson, An Un-Uniform System of Citation: Surviving with the New Bluebook, 26 Stetson L. Rev. 53, 58 (1996).
[6] Daniel Stone, Harvard-led Citation Cartel Rakes in Millions from Bluebook Manual Monopoly, Masks Profits, Substack (June 9, 2022), https://danielstone.substack.com/p/legal-bluebook-profits-havard-yale-columbia-penn.
[7] Shapiro, supra note 3, at 1585.
[8] Posner, The Bluebook Blues, supra note 2, at 859-61.
[9] Id. at 860.
[10] Albert, supra note 4.
[11] Sprigman et al., The Indigo Book: A Manual of Legal Citation, Public Resource (2016).
[12] See e.g., Liberals Who Are Bad At Using Canva v. Federalist Soc’y at UVA Law, 76 U.Va 4 (2023)
[13] Gay Section H Law Weekly Staff v. Lake, 75 U.Va 16 (2023) (Lake, C.J., concurring).