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He said “yes.” — good. He said “no;” — bad.

OK, a bit of an oversimplification, but I needed a catchy post title. A recent edit I got back from a law review leads me to repost a few thoughts, perhaps helpful to law review editors and authors, about what’s customary in American legal publications. (My sense is that this is also customary in most other books and journals, but I can speak with the most confidence about the custom in legal publications.) Many readers know that I’m a descriptivist, and not a prescriptivist; but descriptivists don’t deny there are rules — they just say the rules are dictated by “the will of custom, in whose power is the decision and right and standard of language.”

1. Place commas and periods inside quotation marks, e.g.,

The Court’s answer to this was “no.”

2. Place all other punctuation marks outside quotation marks, unless they are logically parts of the quotation. I have seen some departures from this where semicolons or question marks are involved, but my sense is that those departures remain rather rare exceptions in modern legal publications.

The Court’s answer to this was “no”; but two years later, the Court changed its mind.
Was the Court’s answer “yes” or “no”?
The Court’s response was, in essence, “Says who?” [The question mark is logically part of the quotation.]

3. Place footnote calls after all punctuation marks (other than em dashes), except if the footnote relates solely to a parenthetical, in which case place the call within the parentheses. I have likewise seen some departures from this, but again my sense is that they remain rare exceptions.

The Court disagreed.1
The Court disagreed in the first case,2 but then changed its mind.
The Court disagreed in the first case;3 but in the later case . . . .
The Court reversed (except as to the jurisdiction issue4), holding . . . .

See, for example, the PDF version of this Harvard Law Review article, including footnote calls 73 (p. 24) and 141 (p. 40).

The reasons for these practices are obviously not solely logic; they are chiefly aesthetics and custom (which are related, because once a custom is established many people will find adherence to the custom to be more aesthetically pleasing). Nonetheless, unless I’m mistaken, the practices are pretty well-settled, and editors risk annoying readers — and being inconsistent even within their own publications — if they depart from this custom.

I should note, by the way, that many people are quite opposed to the custom of placing periods and commas in quotation marks, even when the periods and commas don’t logically fall within the quoted material; as I understand it, the modern British style is indeed to place periods and commas within quotation marks only when they are themselves being quoted. But I don’t want to get into this debate here (see this Slate article for one view of the debate), or enter into a similar logical debate as to footnote calls. Rather, I’m just trying to report what the custom actually is, for those who feel they ought to follow the custom.

I should also note that it’s possible that I have misunderstood or incompletely described the custom, or missed a major and broadly accepted competing view. (Among other things, it’s not easy for me to use Westlaw or Lexis to quickly confirm my sense of the dominant view here; it would be much easier if the question had to do with rival spellings or phrase constructions, which are more readily searchable.) Please let me know if I have indeed erred in this respect.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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Eugene Volokh · April 18, 2014

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