A Brief History and Status of (Cleaned Up) in the Sixth Circuit
Monday, December 19, 2022

Who was the first Sixth Circuit judge to use the (cleaned up) parenthetical in a judicial opinion? What is the current status of (cleaned up) in the Sixth Circuit? Which judges use it regularly, which judges never use it, and which judges use it sparingly? This post attempts to provide some answers to these questions.

First, some background on the parenthetical. (Cleaned up) was invented by Jack Metzler (@SCOTUSPlaces) to resolve a frequently-occurring problem in legal writing. Legal reasoning in our common-law tradition often proceeds by quoting authorities that themselves quote other authorities. But to adapt a quote to the legal document the present author is preparing, the author often needs to make changes to the immediate source of the quotation. For the same reason, the immediate source of the quotation might itself have made changes to the original source of the quotation. The standard citation rules of the profession — contained in the (much scorned) Bluebook — require many of these changes to be reflected in the quote itself and also in a cumbersome parenthetical following the quote. Doing so can seriously undermine the readability (and thus the comprehension) of the legal document that the author is drafting.

Enter (cleaned up). First in a tweet from 2017, and later in an article, Metzler proposed using (cleaned up) as a workaround for this problem. As Metzler explained in his article, the parenthetical allows legal writers to “drop superfluous material like brackets, ellipses, quotation marks, internal citations, and citations, and footnote references from their quotations by using” (cleaned up) “to signal that such material has been removed and none of it matters for either understanding the quotation or evaluating its weight.” Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 147 (2017).

Change in the practice of law sometimes occurs at a glacial rate. Not so with (cleaned up). Though coined only about five years ago, (cleaned up) has by now appeared in thousands of opinions from federal and state courts across the country at both the trial and appellate levels. Maybe the best example so far of the parenthetical’s acceptance in our legal lexicon came last year when (cleaned up) debuted at the Supreme Court in a unanimous opinion authored by Justice Thomas in Brownback v. King, 141 S. Ct. 740, 748 (2021).

That said, using (cleaned up) in briefs and judicial opinions remains at least a little controversial. Exhibit A for that point could be a published opinion that Judge Britt Grant authored for a unanimous panel of the Eleventh Circuit last year. See Callahan v. United Network for Organ Sharing, 17 F.4th 1356 (11th Cir. 2021). In the first footnote of that opinion, Judge Grant remarked that “a ‘cleaned up’ parenthetical has limited utility at most.” Id. at 1362 n.1. And “whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information,” which Judge Grant believed the appellant had done in that case. Id. (Evaluating whether Judge Grant’s skepticism of the parenthetical is justified or not is beyond the scope of this post.)

With the stage set, let’s take a look at the Sixth Circuit’s use of (cleaned up). Which judge was the first to use (cleaned up) in the Sixth Circuit? Our research reveals that the answer is **drum roll** Judge Norris. Judge Norris used the parenthetical in a unanimous, unpublished opinion for a panel of the Sixth Circuit consisting of himself, Judge Moore, and Judge Stranch in United States v. Dowell, 711 F. App’x 280, 282 (6th Cir. 2017). The Court issued its decision on October 6, 2017–just a little less than seven months after Jack Metzler first proposed using the parenthetical on Twitter.

It would be another five months or so before (cleaned up) made its second appearance at the Sixth Circuit. On March 8, 2018, Judge Siler issued a majority, unpublished opinion, joined by Judge Cook, that included the parenthetical. United States v. Joiner, 727 F. App’x 821, 827 (6th Cir. 2018). So novel was the parenthetical in the Sixth Circuit still, Judge Siler dropped a footnote in the opinion reminding readers that the Court had used the parenthetical before (in Dowell). Joiner, 727 F. App’x at 827 n.2. The footnote also referred the reader to a draft of Metzler’s then-upcoming article explaining why courts and advocates should use the parenthetical. Id.

For the rest of 2018, Judge Siler continued to be the most avid user of the parenthetical on the Sixth Circuit, employing it in six other opinions that year. It’s worth noting that Judge Norris and Judge Siler had both been judges on the Sixth Circuit for decades by the time Metzler had created (cleaned up). And both judges had been serving as senior judges for at least fifteen years by then. After so many years of service on the Court, those judges could have been forgiven for resisting any significant changes to the ways they approached opinion writing. But it turns out that they were the pioneers in the Sixth Circuit when it came to this bit of legal-writing innovation (an innovation that a clear majority of the Court’s active and senior judges would later adopt, see infra). Other early and consistent adopters of the parenthetical in the Sixth Circuit between 2018 and 2019 included Judge Boggs, Judge Griffin, and Judge Bush.

These days, the Sixth Circuit (as a whole) enthusiastically uses the parenthetical. Among the Court’s thirteen senior judges, eleven of them have authored at least one decision that uses the parenthetical. As for the Court’s active judges, we should probably exclude from the count Judge Davis and Judge Mathis because they joined the Court very recently and so (unsurprisingly) have not yet issued any opinions containing the parenthetical. There are fourteen other active judges on the Court. Among those fourteen judges, twelve of them have authored at least one opinion using the parenthetical. Indeed, Judge Kethledge used (cleaned up) in an en banc decision for the Court in Resurrection School v. Hertel, 35 F.4th 524, 529 (6th Cir. 2022).

Who are the holdouts? Among the active judges of the Sixth Circuit, the two who have never used the parenthetical in any opinion (published or unpublished, for the court or in a separate writing) are: Chief Judge Sutton and Judge Murphy. And the two senior judges who have never used the parenthetical in any opinion are Judge Daughtrey and Judge Cook.

The absence of any opinion using (cleaned up) by these judges is almost certainly not an accident. Consider that Judge Murphy and Judge Readler were confirmed to their Sixth Circuit seats just one day apart in March 2019. While Judge Murphy has not once authored an opinion using (cleaned up), Judge Readler has authored at least three dozen opinions for the Sixth Circuit (majority or unanimous) that include the parenthetical. That’s not even counting the several concurrences or dissenting opinions in which Judge Readler has used (cleaned up). Or consider that Chief Judge Sutton, Judge Daughtrey, and Judge Cook have all been judges for many more years on the Sixth Circuit than has Judge Thapar. But none of those first three judges has ever authored an opinion containing (cleaned up). Judge Thapar, by contrast, has authored dozens upon dozens of opinions with (cleaned up) in them. In fact, Judge Thapar might hold the record in the Sixth Circuit for the most number of opinions featuring the parenthetical.

The Sixth Circuit’s use of (cleaned up) is even more nuanced than just described. In between the judges that use it frequently and the judges that never use it are the judges who use it sparingly. For example, we found only one opinion in which Judge Moore used the parenthetical. See Cunningham v. Shoop, 23 F.4th 636, 651(6th Cir. 2022). And Judge Gilman and Judge Rogers have each only used the parenthetical in one unpublished opinion for the Court. See Hizer v. Comm’r of Soc. Sec., 852 F. App’x 999, 1000 (6th Cir. 2021) (opinion by Gilman, J.); Lowry v. Southfiled Neighborhood Revitalization Initiative (In re Lowry), No. 20-1712, 2021 U.S. App. LEXIS 38533, at *9 (6th Cir. Dec. 27, 2021) (opinion by Rogers, J.). Because our research reveals that most of the Sixth Circuit judges that have used (cleaned up) have done so in multiple opinions, we suspect (of course, we could be wrong) that Judges Moore, Gilman, and Rogers have deliberately avoided using the parenthetical except on rare occasions. Then there’s Judge Larsen, who has used the parenthetical in only one published concurrenceUnited States v. Phillips, 54 F.4th 374 (6th Cir. 2022), and in a handful of unpublished opinions or orders of the Court. See, e.g.United States v. Carrender, No. 21-5253, 2022 U.S. App. LEXIS 6160, at *5 (6th Cir. Mar. 8, 2022); Outdoor One Communs., LLC v. Charter Twp., No. 21-1323, 2021 U.S. App. LEXIS 37354, at *10 (6th Cir. Dec. 16, 2021).

All of this perhaps creates a dilemma for the Sixth Circuit practitioner, including this blogger, who is persuaded that the (cleaned up) parenthetical has many virtues. On the one hand, if a majority of Sixth Circuit judges are comfortable using the parenthetical in opinions for the Court, including in en banc opinions, then it would seem the practitioner should feel free to submit a brief using the parenthetical, too. On the other hand, there’s strong evidence that at least a few judges on the Sixth Circuit have some aversion to using the parenthetical (It’s possible these judges prefer to quote less generally. In any event, if they wish, they are welcome to write us to explain why they rarely, if ever, use the parenthetical.) And given that the Bluebook itself has not endorsed (cleaned up), it’s unlikely that a practitioner would be faulted right now for not using the parenthetical. Advocates will have to decide for themselves whether using the parenthetical is worth any potential trouble. One thing seems clear though: (cleaned up) is here to stay at the Sixth Circuit.

 

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