Citing GenAI - Washington State Bar News

If, when, and how to cite generative artificial intelligence in your legal writing

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BY AMANDA K. STEPHEN

Earlier this year, I had the privilege of attending the Association of American Law Schools (AALS) conference in Washington, D.C. This is an annual conference where professors from law schools around the country come to learn from one another and debate hot topics in legal education. As I’m sure you can imagine, generative artificial intelligence (Gen-AI) was one of those hot topics and there were several excellent presentations by law professors and law librarians who are nationally recognized experts in the field.

One presentation by the AALS section on legal writing, reasoning, and research entitled “The AI Era: Leveraging Large Language Models to Improve the Lawyers Craft” was particularly informative. It touched on many interesting questions related to GenAI in legal writing, such as:

What GenAI chatbots are available for use and how do they stack up against each other?¹
What are some of the ethical questions surrounding the use of GenAI for law students?²
How might the use of GenAI in legal writing promote greater inclusion and equity for lawyers, law students, and litigants?³

Those are some big questions. And I am not able to tackle all of them in this short article (although I have included links in the endnotes to the presenters’ materials on these issues if you would like to dive into any of them more deeply). Instead, this article attempts to answer two very specific and practical questions that were raised by the presenters:

First, if you use GenAI to draft a piece of writing, do you need a citation telling the reader as much?⁴
Second, if you are simply citing to content produced by GenAI, what should that citation look like?

Let’s dive into these issues one at a time.

If you use GenAI, do you need to include a citation describing that use?

Whether you must include a citation describing your use of GenAI is a big issue of debate within the legal writing world, and the figurative jury is still out on what the correct answer should be. According to the Bluebook, “[t]he central function of a legal citation is to allow the reader to efficiently locate the cited source.”⁵ Another recognized purpose is to give credit to the author.⁶ GenAI does not square up perfectly with either of these purposes.

First, is it even possible to independently and “efficiently locate the cited source” (output of GenAI) as we can for a typical source, like a book, article, or webpage? A hallmark of GenAI is that it trains itself.⁷ If it is constantly learning, will you get an identical output even if you input the same prompts as the original user? Interestingly, when I asked ChatGPT 3.5 whether it always provides an identical response for an identical prompt, it said:

Nope! While I strive for consistency in accuracy and helpfulness, my responses might vary slightly based on context, the specific phrasing of the prompt, and any new information or insights I might have at the moment. So while you might get a similar answer to a similar question, it won’t be identical every time.⁸

How, then, can you locate a source that is ever-changing? And how useful will a citation to the chatbot and prompt really be?

Second, is GenAI really an author? As noted in a recent Bar News article by Taylor Fairchild, “the answer from the United States Copyright Office and the courts has been a resounding ‘no.’”⁹ If GenAI is not an author whose work can be patented or copyrighted, is it even necessary to provide a citation to give it credit for words or ideas it generates?

Perhaps, as University of North Dakota School of Law Professor Carolyn Williams and Stetson College of Law Professor Kirsten Davis posited during the AALS conference, we could consider GenAI as more of a writing “tool” than a typical source or author.¹⁰ And, if GenAI is a “tool,” do we even need to cite to it?¹¹ We use many other AI-supported tools in legal writing that do not require any kind of citation, such as Grammarly, the editor function in Word, and natural language searches in electronic legal research databases. The answer likely depends on who is using GenAI and how they are using it. If we are only using GenAI to revise or edit our own writing, maybe citation should not be required, similar to the way we do not cite to the use of Grammarly. But if a level of transparency is necessary so that readers can evaluate authorship, as in academic writing, perhaps it does make sense to require citation to the use of
GenAI.

While these are all interesting questions, several institutions have come out definitively on this issue and determined that you must acknowledge the use of GenAI in your writing. For example, the University of Maryland Libraries advises that “[i]f you are using AI to help with a draft or outline, you’ll want to acknowledge that with a sentence at the beginning or end of the paper that says something like, ‘This paper was produced with drafting support from Bing AI.’”¹² Similarly, a Brown University library guide advises writers to use a citation not just for drafting and outlining, but for any use of an output from GenAI, including “direct quotations and paraphrasing, as well as … tasks like editing, translating, idea generation, and data processing.”¹³

Additionally, you should consider whether your specific audience has rules about the use and disclosure of GenAI. For example, some courts have issued standing orders about whether and how you can use AI in their courtrooms.¹⁴ Additionally, employers like law firms, universities, and government agencies may already have policies in place regulating the use of GenAI within the organization. Finally, disclosure of the use of GenAI may be required for scholarly publications,¹⁵ and as noted earlier, output from GenAI is not copyrightable, so a legal scholar would not want to use GenAI to draft a document that they want to be copyright protected.¹⁶

Bottom line: err on the side of caution. Before using GenAI, check for applicable policies related to its use and disclosure and consider disclosing its use for any task in your writing process. If you determine that you need to disclose your use of GenAI, do so in a sentence or footnote at the beginning or end of the document that states which GenAI chatbot you used and what tasks you used it for.

How should you cite to AI-generated content?

How to cite to AI-generated content is a slightly easier question to answer, as several libraries and style guides have issued guidance related to forming citations to GenAI output.

The Bluebook

Unfortunately for us lawyers, the Bluebook has not weighed in on this question because the most recent edition was published before GenAI arrived on the scene in December 2022. So we will have to wait until the 22nd edition is released in 2025 to know with certainty what it recommends.¹⁷ But the Bluebook does advise that “when citing material of a type not explicitly discussed in this book, try to locate an analogous type of authority that is discussed and use that citation form as a model.”¹⁸ The University of Washington Gallagher Law Library recently published a citation guide for “Citing Generative AI” that is based upon Bluebook Rule 18.2, the rule for citations to internet sources.¹⁹ This type of citation form seems most analogous for GenAI chatbots.

So how do the expert librarians think your citation should look under this form? Well, it needs to include the institutional author (the name of the company that produced the chatbot), the descriptive title (the prompt used), the main page title (the name of the chatbot used), a parenthetical with the date and time the text was generated, the URL to the chatbot, and a clarifying parenthetical (if necessary) explaining exactly how to access the information referenced in the citation.²⁰ For example, your cite to the output from BingChat to the prompt “What is the official name of BingChat?” would be:

Microsoft, Response to: “What Is the Official Name of BingChat?”, BingChat (Jan. 19, 2024, 2:21 PM), https://www.bing.com/ (accessed through the Bing website by selecting “BingChat”).²¹

Similarly, the citation to the output from Lexis+AI to the prompt “What is the official name of Lexis+AI?” would be:

RELX, Response to: “What Is the Official Name of Lexis+AI?”, Lexis+AI (Jan. 19, 2024, 2:23 PM), https://plusai.lexis.com/lexisplusai/ (select “ask a legal question”).²²

Other Style Guides

Several other style guides have come out with updated guidance on how to cite to GenAI, including American Psychological Association (APA) style,²³ Modern Language Association (MLA) style,²⁴ and The Chicago Manual of Style.²⁵ If you are practicing in Washington state courts and want to follow one of these guides, I would recommend The Chicago Manual of Style, as it is the recognized authority on style according to the Washington Style Sheet, which is produced by the Washington Courts Office of Reporter of Decisions.²⁶

Under The Chicago Manual of Style, if you use the words of GenAI in your writing, you have to credit the chatbot in the text or in a footnote.²⁷ If you do so in the text, that can be as simple as:

The following recipe for pizza dough was generated by ChatGPT.²⁸

For a formal citation, use a footnote that includes: the chatbot used as the “author” of the content, the prompt (if not already included in the text), the company that developed the chatbot as the “publisher,” the date that the text was generated, and (optionally) a URL to the chatbot:

ChatGPT, response to “Explain how to make pizza dough from common household ingredients,” OpenAI, March 7, 2023, https://chat.openai.com/chat.²⁹

The Chicago Manual of Style states that if you edit the text generated, you should also disclose that either in the text or at the end of the footnote by saying, for example, “‘edited for style and content[.]’”³⁰

In conclusion

GenAI is the newest and biggest technology disrupter to the legal writing community since legal research was digitized. As a result, there are still many outstanding questions, including when and how to cite to the use of GenAI. I hope this article has at least given you a place to start—of course, until my advice becomes obsolete with the advent of new rules that are sure to come out soon.

About the author

Amanda K. Stephen is an assistant teaching professor at the University of Washington School of Law, where she teaches first-year legal analysis, research, and writing.

NOTES

1. Michael D. Murray, University of Kentucky J. David Rosenberg College of Law, Legal Writing, Reasoning, and Research Section Program at the Association of American Law Schools 2024 Annual Meeting: The AI Era: Leveraging Large Language Models to Improve the Lawyer’s Craft (Jan. 5, 2024), https://am.aals.org/wp-content/uploads/sites/4/2024/01/mdm_presentation_aals_2024_1_the_ai_eraleveraging_llms_to_improve_the_lawyers_craft.pdf.

2. Jennifer Wondracek, Capital University Law School; Becka Rich, Thomas R. Kline School of Law at Drexel University; Rebecca Fordon, The Ohio State University Moritz College of Law; and Ivy B. Grey, WordRake; Legal Writing, Reasoning, and Research Section Program at the Association of American Law Schools 2024 Annual Meeting: The AI Era: Leveraging Large Language Models to Improve the Lawyer’s Craft (Jan. 5, 2024), “Balancing Ethics, Inclusion, and Innovation: Preparing Future Lawyers for the Age of AI,” www.wordrake.com/preparing-future-lawyers-for-AI.

3. Id.

4. Kirsten K. Davis, Stetson University College of Law, and Carolyn V. Williams, University of North Dakota School of Law, Legal Writing, Reasoning, and Research Section Program at the Association of American Law Schools 2024 Annual Meeting: The AI Era: Leveraging Large Language Models to Improve the Lawyer’s Craft (Jan. 5, 2024).

5. The Columbia Law Review et al., The Bluebook: A Uniform System of Citation 1 (The Harvard Law Review Association 21st ed. 2020).

6. Brown Univ. Library, Generative Artificial Intelligence, https://libguides.brown.edu/c.php?g=1338928&p=9868287 (last visited Jan. 29, 2024).

7. Michael D. Murray, Artificial Intelligence and the Practice of Law Part 1: Lawyers Must be Professional and Responsible Supervisors of AI, https://papers.ssrn.com/sol3/papers.cfm? abstract_id=4478588 (last visited Jan. 29, 2024).

8. OpenAI, Response to: “do you always provide an identical response for an identical prompt?”, ChatGPT (Jan. 29, 2024, 11:00 AM), https://chat.openai.com/ (enter query into “Message ChatGPT” box).

9. Taylor Fairchild, “A Cyberspace Odyssey Through the U.S. Court System’s Response to Generative AI,” Washington State Bar News, Dec. 15, 2023, at 27, https://wabarnews.org/2023/12/15/a-cyberspace-odyssey/.

10. Davis, supra note 4.

11. Maura R. Grossman, Paul W. Grimm, and Daniel G. Brown, “Is Disclosure and Certification of the Use of Generative AI Really Necessary?”, 107 Judicature 69 (2023), https://judicature.duke.edu/wp-content/uploads/2023/10/AIOrders_Vol107No2.pdf.

12. University Libraries, “AI & Information Literacy: Cite Correctly,” Univ. of Maryland, https://lib.guides.umd.edu/c.php?g=1340355&p=9896961 (last visited Jan. 29, 2024).

13. Brown Univ. Library, supra note 6.

14. You can access state standing rules through Westlaw and federal standing rules through Bloomberg Law. See “AI Court Rules,” Thomson Reuters Westlaw Precision, https://1.next.westlaw.com/Browse/Home/StatutesCourtRules/AICourtRules?transition Type=Default&contextData=(sc.Default) (last visited Jan. 29, 2024) (accessed through the Westlaw Precision website by selecting Content Types, then Statutes and Court Rules, and then AI Court Rules in the right hand navigation bar); Litigation, Comparison Table – Federal Court Judicial Standing Orders on Artificial Intelligence, Bloomberg Law, https://www.bloomberglaw.com/document/XCN3LDG000000 (last visited Jan. 29, 2024).

15. See “Authorship and AI tools: COPE position statement,” COPE, https://publicationethics.org/cope-position-statements/ai-author (last visited Jan. 29, 2024).

16. Fairchild, supra note 9, at 27.

17. “FAQ: What is the current edition and when will the new edition be released?”, The Bluebook, www.legalbluebook.com/faq/what-is-the-current-edition-and-when-will-the-new-edition-be-released#:~:text=The%20current%20edition%20of%20The%20Bluebook%20is%20the,released%20in%20the%20late%20spring%2Fearly%20summer%20of%202025 (last visited Jan. 29, 2024).

18. The Columbia Law Review et al., supra note 5, at 1.

19. Gallagher Law Library, “Bluebook 101: Citing Generative AI,” Univ. of Wash. School of Law, https://lib.law.uw.edu/c.php?g=1236949&p=10159873 (last visited Feb. 1, 2024).

20. Id.

21. Id.

22. Id.

23. Timothy McAdoo, “How to cite ChatGPT,” APA Style Blog (April 7, 2023), https://apastyle.apa.org/blog/how-to-cite-chatgpt.

24. “Ask the MLA: How do I cite generative AI in MLA style?”, MLA Style Center, https://style.mla.org/citing-generative-ai/ (last visited Jan. 29, 2024).

25. “Citation, Documentation of Sources,” The Chicago Manual of Style Online, www.chicagomanualofstyle.org/qanda/data/faq/topics/Documentation/faq0422.html (last visited Jan. 29, 2024).

26. Office of Reporter of Decisions, “Style Sheet,” Washington Courts, www.courts.wa.gov/appellate_trial_courts/supreme/?fa=atc_supreme.style (last visited Jan. 29, 2024).

27. “Citation, Documentation of Sources,” supra note 25.

28. Id.

29. Id.

30. Id.