What is the 'it'?

The High Court style guide has a somewhat terse approach to book citations.

No first names or initials, just a surname. (Exceptions are occasionally made, if not necessarily encouraged, in relation to names attaching to more than one prominent author. “Stone”, for example. Or “Wade”.)

And edition numbers are only given for editions other than the first. I suppose the idea is that the book will be a first edition (by inference) if the footnote doesn’t say otherwise. Hey. I don’t make the rules.

The other common piece of information that is missing from High Court book citations is the place of publication.

I’m going to be honest with you. It has never seemed to me that the place of publication would add much to a citation. It turns out that I didn’t know what I didn’t know – until I recently found myself trying to verify a couple of references to old texts.

The first was Stephen’s A Digest of the Criminal Law (Crimes and Punishments) (1877).

The other was Pollock’s The Law of Torts (1887).

I took both books off the shelf. The author, title, and year of publication all seemed to be correct. But in both cases what I found on the page the judge had referred to looked nothing like what the judgment had led me to expect.

What was going on? Had I gone mad? (Honestly? I can’t rule it out.) Were there, perhaps, two books with similar titles? I have been thrown by that before – see, eg, W Harrison Moore’s The Constitution of The Commonwealth of Australia, which has a second edition published in 1910 and a (very different) “student edition” also published in 1910. (What could possibly go wrong?)

That would have been easy enough to resolve. But no. This turns out to have been a problem of a different order of magnitude: in both cases there are two books with exactly the same title. And the same author. And the same year of publication.

Wait, what?

In both cases the book was published both in England and in the United States in the same year. And the UK and US editions of each book have different pagination. I had been looking at the UK edition. The judge had been looking at the US edition. Somehow, after much pain and suffering, wailing, gnashing of teeth etc, I was able to figure this out.

The question then became: how might a footnote tell the reader which version of the book they should be looking at, in a world where including the place of publication in a citation is verboten?

I suppose a judge could just break the rules and include it. After all, it’s their footnote, not mine. And in this situation the extra information would certainly help. My concern with that approach is that someone might assume that the judge doesn’t know the court’s own citation style. Sometimes I can be too protective of the judges for my own good. If additional information takes the reader to the right book when its absence might take them to the wrong book, where’s the harm?

Alternatively, the judge could bend the “no first edition” rule by putting in something like “1st Eng ed” or “1st Am ed” – assuming the reader would have any idea what that meant.

Or the judge might be able to write something into their judgment that made clear which book they were looking at. That might not always be an available option: often enough, a book that is being used as support for a proposition won’t appear at all in the text of the judgment, but only as a footnote.

The approach that ended up being taken in both instances was to follow the court’s usual citation practice – ie, no reference to the place of publication – but to adopt the English pagination, on the basis that Stephen and Pollock are both English authors (and well known as such) and it would therefore stand to reason that the English edition would be the “primary” source. A stretch, perhaps, but that’s where we ended up.

At least with Pollock, the American publisher had the good sense to provide interlined pagination showing the corresponding page numbers for the English edition, so one would hope that a reader could figure out what was going on irrespective of which edition they had in their hand. As for Stephen? Well, sadly, the reader is on their own.

Should the court change its practice – to include the place of publication – just to cover the once-in-a-blue-moon occurrence of a judge attempting to cite the American edition of one of these books? To be honest, that feels like a lot of extra work which would serve no helpful purpose for the 99.99 per cent of books where this is not even an issue.

Are you likely to come across this in your time as a judge’s associate? Almost certainly not. You would have to be very unlucky. Still. The issue does exist. I thought it might be worth putting it on your radar. I would hate for anyone to be as confused as I was when I first came across it.