Volume 72, Issue 2

Full issue available here


The “New” District Court Activism in Criminal Justice Reform
Jessica A Roth
Cite as 72 N.Y.U. Ann. Surv. Am. L. 187 (2018)


Democracy in the Digital Age: Why the Equal Time Rule Should be Abandoned
Sarah Warburg-Johnson
Cite as 72 N.Y.U. Ann. Surv. Am. L. 275 (2018)

Valuing Fatal Cancer at the EPA
Max Yoeli
Cite as 72 N.Y.U. Ann. Surv. Am. L. 315 (2018)

A New Idea Rather than a New I.D.E.A.: Separate Federal Legislation for RTI Students
Harry I. Black
Cite as 72 N.Y.U. Ann. Surv. Am. L. 357 (2018)

Annual Survey Adopts “(cleaned up)”

A vocal community of appellate lawyers on the Internet advocates replacing extended explanatory parentheticals required by Rules 5.3 and 5.4 of the Bluebook with a simpler parenthetical that simply says “(cleaned up).”

Jack Metzler, currently an attorney for the Federal Trade Commission, originated the idea and posted a draft of his proposal online.1 He found a receptive audience.2 On August 1, 2017, the Fifth Circuit went beyond mere reception and became the first federal court of appeals to adopt its use.3

The inherent merits of the “(cleaned up)” proposal and its popularity with practitioners has convinced the editors of the New York University Annual Survey of American Law to incorporate the proposed rule into the journal’s style guide. The Annual Survey describes its mission as including the exploration of “contemporary legal developments in the United States from a practice-oriented perspective.”4 Practitioners have embraced the idea, and the journal wishes to evolve with them. Furthermore, the proposal has the additional benefit of engaging junior editors by allowing them to think critically about the citations they edit: a unique issue for law journals.5 Although every journal is different, we encourage other journals to adopt this proposal as well.

The Proposal Demonstrated6

Consider the following example citation:

We have long said that “[a] court need not consider a party’s ‘conclusory and self-serving affidavit [as] . . . sufficient to overcome’ a motion for summary judgment.” Johnson v. X Brands, 850 F.3d 1111, 1112 (9th Cir. 2017) (quoting Smith v. Acme, Inc., 822 F.3d 304, 308–09 (9th Cir. 2017) (internal citation omitted)).

On its face, this citation appears to make the statement that a court does not have to consider a party’s conclusory and self-serving affidavits as a sufficient basis for overcoming a summary judgment motion. The citation is to a 2017 case called Johnson v. X Brands in the Ninth Circuit, and it contains the following additional information:

  • The Johnson citation is not totally faithful: there was a capitalization change (the “a” became lowercase), an added word (“as”), and there were some words omitted before “sufficient.”
  • The Johnson case quoted partially from a different 2017 Ninth Circuit case called Smith v. Acme; an internal citation was omitted somewhere in its quote.

If Metzler’s passage was itself being quoted (say, in a 2017 Ninth Circuit case called Sample v. Cite), an even longer quote would result:

This Court has “long said that ‘[a] court need not consider a party’s “conclusory and self-serving affidavit [as] . . . sufficient to overcome” a motion for summary judgment.’” Sample v. Cite, 900 F.3d 101, 103 (9th Cir. 2017) (quoting Johnson v. X Brands, 850 F.3d 1111, 1112 (9th Cir. 2017) (quoting Smith v. Acme, Inc., 822 F.3d 304, 308–09 (9th Cir. 2017) (internal citation omitted)) (alterations in original)).

Now, yet another parenthetical, “(alterations in original),” indicates that the quotation from Sample v. Cite, which contained all of those annoying brackets and ellipses, was in fact written with all of those annoying brackets and ellipses, and that those alterations were not added by the author quoting from Sample v. Cite.

Metzler’s proposed solution is to eliminate all of this the extraneous information with one parenthetical, as follows:

This Court has “long said that a court need not consider a party’s conclusory and self-serving affidavit as sufficient to overcome a motion for summary judgment.” Sample v. Cite, 900 F.3d 101, 103 (9th Cir. 2017) (cleaned up).

This conveys the exact same legal information but with significantly less extraneous detail. The reader can focus on the substance of the legal proposition without distraction.

Editorial Decisionmaking

The previous section noted that all of the citations were from 2017 Ninth Circuit opinions. This matters because citations are not merely used to show some authority for a proposition, but also to communicate how persuasive that authority is. The uniformity in this example implies that the intermediate citations do not convey much additional information, since they all come from the same jurisdiction.

That will not always be the case. For example, a lawyer in a state trial court may cite a previous opinion of that court, which itself quotes from a United States Supreme Court case. In that scenario, it may make sense to keep both the trial court quote and the Supreme Court quote, to show that the court had followed Supreme Court precedent in the same manner previously. Metzler shows a variant of this in his last example in Part IV of his paper.7 In other words, “(cleaned up)” can and should be used flexibly. In some cases, it makes sense to retain intermediate citations, along with the traditional annotating parentheticals.

Law Journals

The editorial decisionmaking described above is no less important for academic writing than for court filings. Academics are just as impressed by the Supreme Court as (and much less interested in state courts than) practitioners. Journal editors, therefore, must determine what aspect of the citation is relevant, using both personal intuition and above-the-line context clues.

This leads to another benefit of the “(cleaned up)” concept, which is unique to law journals: junior editor engagement. Many professors of legal writing have expressed concern that law students learn legal citation too mechanically and “syntactically,” with insufficient focus on the communicative function of effective legal citations.8 Introducing “(cleaned up)” into the cite-and-source-checking process invites junior editors to think about their citations and participate in the editorial process in a more meaningful and substantive way.


“Legal citation is a core convention of practical legal writing in the United States.”9 It is time law journals take ownership of that fact and do something useful with it. The Annual Survey of American Law is proud to join the effort. We hope that by introducing “(cleaned up)” into our citations, our readers will enjoy clearer and more meaningful citations, while our junior editors gain practice crafting them.

  1. Jack Metzler, Cleaning Up Quotations (March 17, 2017) (draft), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2935374 [https://perma.cc/EE35-C2VX]. 
  2. See generally #cleanedup, Twitter, https://twitter.com/search?q=%23cleanedup [https://perma.cc/K47P-FLN2] (showing many positive references to the idea). 
  3. See United States v. Reyes, No. 16-40241, slip op. at 7 (5th Cir. Aug. 1, 2017), http://www.ca5.uscourts.gov/opinions/pub/16/16-40241-CR0.pdf [https://perma.cc/3CPK-DGP8]. 
  4. Mission, N.Y.U. Annual Survey Am. Law, https://annualsurveyofamericanlaw.org/mission/ [https://perma.cc/9GH8-8VHJ]. 
  5. See infra Section III. 
  6. This section is a simplified adaptation of the first example used in Jack Metzler’s proposal and borrows liberally from it. See Metzler, supra note 1, at 2–4. 
  7. See Metzler, supra note 1, at 5. 
  8. See, e.g., Alexa Z. Chew, Citation Literacy (July 25, 2017) (draft), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3008851 [https://perma.cc/L9E3-6L93]. 
  9. Id. at 7 (cleaned up). 

Volume 73, Issue 1

The 73rd Volume of the Annual Survey of American Law is dedicated to Justice Sonia Sotomayor

Full issue available here

Seventy-Five Years of the Annual Survey
Alison Wall & Leonid Grinberg

Tributes to Justice Sonia Sotomayor
Austin Wilkins
Judge Robert Katzmann
Judge Guido Calabresi
Judge Deborah A. Batts
Dawn Cardi

Justice Sonia Sotomayor


Fast & Furious: The Misregulation of Driverless Cars
Tracy Hresko Pearl
Cite as 73 N.Y.U. Ann. Surv. Am. L. 19 (2017)


Patron Data Privacy Protection at Public Libraries: The Ethical Model Big Data Lacks
Emma Trotter
Cite as 73 N.Y.U. Ann. Surv. Am. L. 73 (2017)

The Duty to Defend and Federal Court Standing: Resolving a Collision Course
T. Patrick Cordova
Cite as 73 N.Y.U. Ann. Surv. Am. L. 109 (2017)

Volume 72, Issue 1

The 72nd Volume of the Annual Survey of American Law is dedicated to Judge Jack B. Weinstein

Full issue available here

Tributes to Judge Jack B. Weinstein
Dean Trevor Morrison
Christinia Liu
Judge John Gleeson
Elizabeth Cabraser
Leslie Gordon Fagen
Kenneth Feinberg
Samuel Issacharoff
Diane Leenheer Zimmerman

Judge Jack B. Weinstein


Constitutionalizing Equity: Consequences of Broadly Interpreting the “Modern Rule” of Injunctions Against Defamation
Steve Tensmeyer
Cite as 72 N.Y.U. Ann. Surv. Am. L. 43 (2017)


Just Out of Curiosity? Properly Weighing the Public’s Interest When Deciding Whether to Broadcast a Civil Trial
David A. Giroux
Cite as 72 N.Y.U. Ann. Surv. Am. L. 91 (2017)

Exit vs. Voice: A Comparison of Divestment and Shareholder Engagement
Alex Gorman
Cite as 72 N.Y.U. Ann. Surv. Am. L. 113 (2017)

Volume 71, Issue 4

Full issue available here


The Fourth Amendment in a Digital World
Laura K. Donohue
Cite as 71 N.Y.U. Ann. Surv. Am. L. 553 (2017)

Mutual Legal Assistance in an Era of Globalized Communications: The Analogy to the Visa Waiver Program
Peter Swire & Justin D. Hemmings
Cite as 71 N.Y.U. Ann. Surv. Am. L. 687 (2017)


Modern State Action Doctrine in the Age of Big Data
Daniel Rudofsky
Cite as 71 N.Y.U. Ann. Surv. Am. L. 741 (2017)

Copyrighting Fashion After Varsity Brands

Copyrighting Fashion After Varsity Brands

Friday, February 24, 2017 | 12:00 PM – 2:00 PM
Vanderbilt Hall, Greenberg Lounge
40 Washington Square South New York, NY 10012  

Attendees can register here.

To obtain 1.5 units of CLE credit, click here for the reading material.


Interested in the law of fashion?  Join us for this exciting panel on the first Supreme Court case in decades to grapple with the subject.  Four panelists will discuss Star Athletica v. Varsity Brands, in which the Court discusses whether the design of a cheerleading uniform can gain copyright protection.  Dozens of law professors, including several from NYU, have submitted amicus briefs for both sides.  Our panelists will explore what the ramifications will be both for scholars and the industry.

The panel will be moderated by NYU’s own Professor Christopher Sprigman (coauthor of one of the amicus briefs in the case).  The panelists will be:

Professor Doug Hand (NYU, partner at Hand Baldachin & Amburgey LLP)

Professor Barbara Kolsun (Cardozo, former General Counsel of Kate Spade)

Professor Betsy Rosenblatt (Whittier, coauthor of an amicus brief in the case)

Professor Jeffey Trexler (Fordham, coauthor of an amicus brief in the case)

This event is part of “Copyrighting What We Wear: A Legal and Technological Restyling,” the Annual Survey of American Law 2017 Symposium on Fashion and Copyright.

Please RSVP here by 5:00 p.m. Tuesday, 2/21

Announcing the 2017 N.Y.U Annual Survey of American Law Dedication Ceremony Honoring Judge Pauline Newman

The NYU Annual Survey of American Law will dedicate its 74th Volume to Pauline Newman, Circuit Judge of the United States Court of Appeals for the Federal Circuit. The following friends and colleagues of Judge Newman will share their reflections and pay tribute to her work:

Raymond Chen: Circuit Judge of the U.S. Court of Appeals for the Federal Circuit
Rochelle C. Dreyfuss: Pauline Newman Professor of Law; Co-Director, Engelberg Center on Innovation Law & Policy; Co-Director, Competition, Innovation, & Information Law Program
James A. Worth: Administrative Patent Judge, U.S. Patent and Trademark Office
Rachel Elsby: Counsel, Akin Gump Stauss Hauer & Field LLP
Daniel J. Klein: Associate, Paul, Weiss, Rifkind, Wharton & Garrison

The ceremony will take place at the Law School on Tuesday, February 21, 2017, in Greenberg Lounge, located on the first floor of Vanderbilt Hall, 40 Washington Square South. Doors will open at 5:15 p.m and the ceremony will begin at 5:30pm. We expect the event will be well attended and recommend arriving early. A reception with Judge Newman will follow, also set to be held in Greenberg Lounge.

If you would like to attend, please RSVP here by 6:00 p.m. on Thursday, February 16.

Volume 71, Issue 3

Full issue available here


“Leaving the Fox in Charge of the Hen House”: of Agencies, Jurisdictional Determinations and the Separation of Powers
Sarah Zeleznikow
Cite as 71 N.Y.U. Ann. Surv. Am. L. 275 (2016)

Damages for Deceit: A Case Study in the Making of American Common Law
Edward J. Normand
Cite as 71 N.Y.U. Ann. Surv. Am. L. 333 (2016)

Nolle-and-Reinstitution: Opening the Door to Regulation of Charging Powers
Joseph A. Thorp
Cite as 71 N.Y.U. Ann. Surv. Am. L. 429 (2016)


Defendant Class Actions in Bankruptcy: A Practice Guide
Ameneh Bordi
Cite as 71 N.Y.U. Ann. Surv. Am. L. 481 (2016)

Magistrates After Arkison & Wellness: The Outer Limits of Consent
Benjamin P.D. Mejia
Cite as 71 N.Y.U. Ann. Surv. Am. L. 509 (2016)

The Interrelationship Between Price Impact and Loss-Causation After Halliburton I & II

Private securities actions in the lower courts have raised an important doctrinal question: can a defendant in a private securities action be held liable for a misrepresentation that purportedly causes artificial inflation to come out of a stock price, without proof that the defendant’s misconduct was responsible for the initial inflation of the stock price? In other words, can there be loss causation without price impact? The Supreme Court’s recent decisions in Haliburton I and II indicate that because price impact is the obverse of loss causation, it is essential to proving that a defendant’s fraud caused a plaintiff’s economic loss.

Full article available here
Mark A. Perry & Kellam M. Conover
Cite as 71 N.Y.U. Ann. Surv. Am. L. 189 (2015)

The Scope of the Jury Trial Right in SEC Enforcement Actions

What is the role of a jury in deciding the size of an SEC monetary penalty? A defendant’s right to a jury trial extends beyond the elements of the violation. Rather, it includes all factual findings that can lead to sanctions under the SEC’s civil money penalty regime.

Full article available here
Matthew T. Martens & Troy A. Paredes
Cite as 71 N.Y.U. Ann. Surv. Am. L. 147 (2015)