|Oregon State Bar Bulletin NOVEMBER 2006|
By Jack L. Landau
I have been asked to write something about the art of legal advocacy. For a while, I toyed with the idea of offering my thoughts about legal writing. In the end, I decided to maintain some focus on writing, but I set my sights somewhat lower. Literally. I decided to write of the footnote.
Let me say at the outset, I am not a footnote abolitionist.1 There are such people. Prof. Fred Rodell, in his classic article, "Goodbye to Law Reviews," called footnotes "phony excresences" that "breed() nothing but sloppy thinking, clumsy writing, and bad eyes." More recently, former D.C. Circuit Judge Abner Mikva declared that footnotes are "an abomination" and that, "if footnotes were a rational form of communication, Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane."
I take no such hard line. I do, however, think we are getting carried away. Footnoting increasingly is running amok and is becoming a threat to legal writing.
It has not always been so. For millennia, the legal profession — indeed, the world — existed blissfully without footnotes. The Romans managed to develop a sophisticated system of legal citation to prior authorities without the use of footnotes. Justinian’s Corpus Iuris Civilis, compiled in the 6th century, contains a remarkably modern citation format that referred in its text to prior authority by title, volume and page. Eleventh and 12th century scholars at the University of Bologna tried to make Justinian’s work more accessible by adding cross references and inserting "glosses" in the margins. In a sense, their handwritten annotations in the margins were the progenitors of the modern footnote. But even then, the practice of these scholars was sufficiently unusual that a special name — "glossators" — was concocted to describe them. Judicial opinions at early common law contained no footnotes — indeed, few citations to prior cases at all, as the doctrine of stare decisis was not recognized until later.
The advent of printing made the footnote as we know it possible. It is an Elizabethan printer — one Richard Jugge — who is now credited with the publication of the first footnote in 1568. According to Chuck Zerby, author of The Devil’s Details: A History of Footnotes, Jugge had been confronted with the vexing problem of finding space for several marginal notes concerning a passage from the book of Job, the space problem being occasioned by a series of titles and an exceedingly large illustration of a half-naked Job receiving advice from his splendidly adorned friends. Jugge’s solution was to move two of the notes — "(f)" and "(g)" — to the bottom of the page.
In the years that followed, Jugge’s idea caught on. As Anthony Grafton comments in his erudite and critically acclaimed (the New York Times reviewed it twice) The Footnote: A Curious History, "footnotes burgeoned and propagated like branches and leaves in a William Morris wallpaper." By the 18th century, the crafting of footnotes was elevated — metaphorically, not typographically, of course — into an art form unto itself. Authors such as Edward Gibbon became known as much for the cheerful sarcasm lurking in their notes as for the learning paraded in their texts. As Grafton recounts, footnotes proliferated to such an extent that they soon became the object of satire, as in the case of Gottlieb Willhelm Rabener’s 1743 mock-dissertation, Hinkmars von Repkow Noten ohne Text, which consisted entirely of footnotes. (Rabener reportedly performed the feat in an attempt to win "fame and fortune." Obviously, his efforts met with something less than complete success.)
In the legal profession, commentators seem to be the first to have picked up the practice. At first, they employed footnotes only rarely. William Blackstone used them occasionally to provide citations to cases or to statutes in his Commentaries on the Laws of England. But he used few enough that he numbered them by use of the letters "a" through "z" in each chapter. American commentators did likewise. E. Fitch Smith’s 1848 Commentaries on Statute and Constitutional Law indulges in an occasional footnote. Joseph Story’s 1858 Commentaries on the Constitution similarly contains a relatively few notes.
The practice seems to have picked up after the Civil War. In large part, this seems to reflect the function of the legal treatise in 19th century American law practice. Particularly in the West, few lawyers had whole sets of case books, and digests were still in their infancy; the way to find a relevant authority for many lawyers was by reference to a legal treatise. Thus, by the 1890s, it was common for legal treatises such as J.B. Sutherland’s Statutory Construction, Theodore Sedgwick’s Damages, or John Norton Pomeroy’s Equity Jurisprudence to include lengthy lists of cases in long footnotes.
The practice, however, seems not to have infected academic journals until later. Entire articles of the first volume of the Harvard Law Review were published without a single footnote (although there were a few articles that contained them, so few that the numbering began anew with each page). As late as the Second World War, the lead article in the Harvard Law Review could be published with as few as 62 footnotes. In fact, according to legend, William Prosser’s classic article on product liability, "Assaulting the Citadel," was rejected because it had too many footnotes (100!).
Soon, footnote creep began to appear. Alexander Bickel’s famous 65-page article on Brown v. Board of Education in 1956 clocked in with an astounding 121 footnotes. By the 1980s, articles of the same length routinely included 300 to 400. And, with the proliferation of computer word processing, all previous impediments to the practice disappeared. Now, law reviews publish articles with literally thousands of footnotes. Yes, I said "thousands." The record is widely reported to be an article containing over 4,824 footnotes (an article about section 16 of the Securities Exchange Act, for crying out loud). According to several academic commentators, an article’s footnote count has come to be a sure indicator of its respectability, with the current goal being 400 to 500 per article. Law reviews apparently buy into the mania, routinely requiring authors to footnote virtually any assertion. As a result, authors resort to the equivalent of "footnote steroids" to bulk up their footnote count. Favorites include "supra," "infra," and the all-time favorite, "id." One 1988 article, for example, included 574 footnotes, 444 of which were "id."
Quantity is not the only problem. Footnotes are getting longer and longer, exhibiting what one commentator has called a sort of "footnote elephantiasis." As humorist Frank Sullivan once wryly noted, "(g)ive a note an inch and it’ll take a foot." Footnote length, in fact, has become a goal in and of itself. Academic commentators speak of a footnote "density" factor, which is arrived at by dividing the number of total lines of footnotes by the total number of lines in an article. Northwestern University Law School once included footnote density as a relevant factor in its annual ranking of law schools — density apparently being a good thing. The record seems to be an article containing a single footnote that is five pages long. The author reportedly originally wrote it as an appendix, but the editors thought it looked better as a footnote.
Appellate court opinions seem only recently to have climbed on the footnote bandwagon, but the trend is ominous. While, earlier in this century, Justices Holmes and Cardozo could write entire opinions without a single footnote, today U.S. Supreme Court opinions routinely include 30-50 often very long footnotes to supplement their already very long opinions. The lower federal courts can be much, much worse. A federal district court for the district of Delaware apparently holds the current record, at 1,715 footnotes. A federal district court decision from the Southern District of Alabama also is noteworthy (excuse the pun) for its 415 footnotes, 112 of which consist of the abbreviation "id."
In the Oregon courts, footnoting is a fad that has been relatively slow to catch on. For the better part of a century, most opinions did not contain a single footnote. The first footnote in the Oregon Reports appears in volume 3, in an 1869 reported decision of the Multnomah County Court. It is one of two footnotes — denominated "a" and "b" — in the court’s opinion and is one of a mere handful in the entire volume. Even today, the footnote density factor is relatively low. Still, it is not uncommon for Oregon appellate court opinions to include dozens of notes. In Strunk v. PERB, for example, the Oregon Supreme Court resorted to footnotes a total of 69 times. Similarly, in State v. Hirsch/Friend, concerning the constitutionality of the state’s felon-in-possession statute, the court’s opinion contained four dozen footnotes, including a 200-word quote from 18th-century Italian philosopher Cesare Beccaria.
Moreover, some of those notes are real whoppers. Among the longest to appear in the Oregon Reports is one penned by Judge Kurt Rossman, whose opinion in State v. Howe contains a 1,300 word footnote that runs the better part of three pages, longer than the text of the opinion itself. (Apparently, that ratio between text and footnote was not unprecedented for Judge Rossman, particularly when he got his dander up. Consider, for example, his dissent in Weyerhauser Co. v. Kepford, which consisted of 26 words of text and 10 times as many words in footnotes.) Running a close second is Justice Richard Unis, whose 1,200-plus-word footnote 17 in his dissent in State v. Rodriguez is two and one-half pages long.
What’s wrong with all of this footnote foolishness? The first problem is that it is distracting. It interferes with the readability of an article, a brief or an opinion. As Noel Coward (who credits the story to a slightly more ribald version from John Barrymore) once complained, reading footnotes is like having to go downstairs and answer the door bell while you are upstairs making love. If you are writing to inform — or, even more important, to persuade — it seems to me that you would want to maximize the readability of your work and minimize any distractions from the point that you are trying to make. An excess of footnotes doesn’t help you accomplish that goal.
The second problem with excessive footnoting is that, although there may be legitimate documentary functions for footnotes, in altogether too many cases, they serve no legitimate purpose. Frequently, they serve merely as an opportunity for an author, lawyer or judge to make a gratuitous display of erudition. We judges, for example, love to cite literature in our opinions, generally for no apparent purpose other than to show the parties and posterity that we are well-read. A review of recent Oregon appellate decisions reveals that William Shakespeare, Rudyard Kipling, Charles Dickens and Lewis Carroll are particular favorites among Oregon judges.
An especially good example is the Oregon Supreme Court’s opinion in Riley Hill General Contractor, Inc. v. Tandy Corp., in which the issue was the meaning of the term "clear and convincing evidence." The opinion includes a virtual history of the English language, with two lengthy, footnoted, poetic interludes from Kipling on the Roman withdrawal from Britain in 407 A.D. and on the attitude of Saxons toward the Normans following the conquest in 1066 A.D., all justified by the fact that they were "picturesque."
For another example, a number of the footnotes in my own opinion in State v. Ciancanelli probably weren’t necessary. It didn’t add anything to our constitutional analysis to note that the Puritans exhibited an extraordinary zeal for regulating bestiality or that one of their punishments for fornication was, of all things, marriage.
Sometimes, judges insert footnotes into their opinions out of apparent boredom. Consider the opinion of the Oregon Court of Appeals in City of Oregon City v. Clackamas County, which begins with the sentence, "Oregon City seeks review of LUBA’s affirmance of Clackamas County’s design review approval for Phase II of the Country Village Mobile Home Park." There follows this footnote: "Those of you who feel that you will not be able to stay for the entire discussion are asked to leave the room at this time." I kid you not.
And sometimes, courts insert footnotes to insult their colleagues, apparently in the belief that matter lacking sufficient dignity to be included in the text itself somehow is appropriate if reduced to a mere footnote. My favorite example is a footnote in People v. Arno, a California Court of Appeals decision in which the majority responded to a strongly worded dissent by "spell(ing) out a response" in a seven-line acrostic, the first letters of each line comprising a Yiddish obscenity.
The third problem with runaway footnoting is that, sometimes, footnotes are not merely annoying, they’re dangerous. Particularly in judicial opinions, they can cause much mischief. There is, for example, what I call the "stealth footnote." By means of this device, a court will float in a footnote an idea that is pure dictum. Several cases down the line, however, the dictum is cited by the court and, as if by magic, is transformed into precedent. Think Carolene Products. Or, if the court later decides that the idea was unsound, the court rejects it as, after all, having been expressed in a mere footnote. In United States v. Dixon, for example, the Court declared that repeatedly quoting suspect dictum from a footnote "cannot convert it into case law." Except, of course, when it does.
There is, to take another example, what is known as a "hedge" note. In the text of the opinion, the court will make a broad pronouncement, followed by a footnote that substantially qualifies the broad pronouncement. The practice allows judges and lawyers in future cases to quote the text without the hedge or, conversely, the hedge without the text, as circumstances may require. The result is potential confusion as to precisely what the court’s opinion stands for.
The United States Supreme Court’s decision in Bowers v. Hardwick nicely illustrates the problem. At issue was the constitutionality of a consensual sodomy statute. The majority declared that the statute was constitutional, largely in light of the fact that homosexuality is not a fundamental right. In footnote 2 of the opinion, however, the Court hedged, saying that it was not deciding the constitutionality of consensual heterosexual sodomy statutes. As many commentators have noted, that’s awfully difficult to understand, given that the statute itself drew no distinctions on the basis of the sexual orientation of the consenting participants.
Finally, footnotes can create uncertainty. There is, for instance, the question whether material consigned to a footnote is authoritative. No less a light than Chief Justice Charles Evans Hughes is reported to have declared that "I will not be bound by a footnote." I know of a judge who once served on my court who thought nothing of adding footnotes to an opinion after it had been approved by other members of the court, because he thought that such material had no precedential value and wasn’t really part of the court’s opinion. On the other hand, an unfortunate Indiana lawyer found that not everyone holds the same view. The lawyer infamously saw fit to disrespect an intermediate court in a footnote to a petition for review to the Indiana Supreme Court. The petition was denied, and the lawyer was publicly reprimanded.
Some courts have joined the debate over the authority of judicial pronouncements placed in "mere" footnotes. Most seem to think that the precedential force of their pronouncements does not vary with the size of the typeface with which they are expressed. In Communications Workers of America v. American Tel. & Tel. Co., however, the Court of Appeals for the Second Circuit suggested that "footnotes and other marginalia" in United States Supreme Court opinions need to be read with caution. And, in Breedon v. Sprague National Bank, a Bankruptcy Appellate Panel construed that case to mean that "federal courts are not to consider the footnotes to an opinion as authority." Of course, the panel’s sentiment that footnotes lack authority was itself expressed — you guessed it — in a footnote.
In a related vein, there is the question whether courts should take seriously footnoted material in appellate briefs. Although most courts appear to regard their own footnotes as authoritative, they do not seem as sanguine about arguments of counsel nestled in the same part of a page. I am aware of at least one decision of the Oregon Supreme Court, Vannatta v. Keisling, in which the court categorically declared that "(w)e decline to address a constitutional challenge raised only by way of a footnote." We said precisely the same thing in Smith v. DMV. On the other hand, in Crocker and Crocker, the Oregon Supreme Court entertained a constitutional argument that had been asserted in a footnote in an amicus brief. Go figure.
But enough. I close with these suggestions.
First, I would like to suggest that all of us — judges and advocates — should think twice before we clutter up a piece of legal writing with excessive footnotes. If a writing makes reference to the law of gravity, it does not require a citation to Newton’s Principia. Let’s lighten up a bit. We should ask ourselves what purpose is being served by including a footnote, particularly ones that go beyond mere documentation. If the message is so important, shouldn’t it be worked into the text? And, if it is not important enough to put in the text, why say it at all?
Second, in a more metaphysical sense, we should think of the use footnotes as an opportunity to question why things are done the way they are. I hope that, throughout our legal careers, we will not engage in practices merely because that’s the way things always have been done. Law is a profession deeply entrenched in traditions, some of which don’t make much sense if you think about them. Let’s not go through our lives and careers accepting such traditions simply as more things to add to the list of life’s many imponderables — like why the word "phonetic" isn’t spelled the way it sounds. Ask questions, and demand answers that make sense. The law’s increasing obsession with footnoting is as good a place as any to start.
1. There. I just wanted to prove the point. (And yes, I know this is actually an endnote. Talk to the Bulletin editor about that.)
ABOUT THE AUTHOR
Editors’ note: Judge Landau’s article originally appeared in the inaugural edition of the Oregon Appellate Almanac, a publication of the OSB Appellate Practice Section. It is available ($24, shipping included) from the OSB Service Desk, (503) 684-7413.
© 2006 Jack L. Landau