April 30, 2011
Footnote of the Day: Are Footnotes Necessary?
Our April series of footnotes ends today with the well rehearsed debate about their necessity. Justice Breyer eschews footnotes in his opinions. In the rather famous 1985 essay from then-Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, he decried the use of footnotes: “I consider footnotes in judicial opinions an abomination."
I hate to read footnotes. I always lose my place in the text and miss the train of thought the author is trying to get me on. But I am afraid that the footnote I fail to read is the key to the whole thing, and so I sneak a peek at some, but not all (I always read footnotes numbered 4). I feel very guilty about the ones that I skip over. In my early days on Law Review I was told that the footnotes are the real measure of worth in legal writing. Intellectually, I do not believe it, but then I think of all the footnotes that law students and lawyers and judges have written since the beginnings of law. (Not quite the beginnings: there is not a single footnote to the original version of the Ten Commandments.) Can all those exemplars be wrong?
I think they are. 
His footnote four? It is not that most famous footnote four, but a challenge to the reader: "Just what did you expect to find?" Abner Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).
There are no footnotes 1, 2, or 3 in Mikva's article, but there is the biographical footnote. For a discussion of the conventions of this footnote practice in legal scholarship, Charles Sullivan's, The Under-Theorized Asterisk Footnote, 93 Georgetown Law Journal 1093 (2005), available on ssrn, is worth a look.
And also worth a look is the defense of footnotes by then-Judge Edward Becker, In Praise of Footnotes, 74 Wash. U. L.Q. 1 (1996):
I, however, refuse to give up footnoting. In fact, I do not consider it a vice. As a federal judge for a quarter century, I believe in footnotes and am convinced that the judicious use of footnotes allows judges to communicate most effectively with their diverse audiences. . . . the footnotephobes seem to have missed the essential point that judges are professional writers and that well-conceived and well-crafted footnotes are valuable tools of their trade. Because the time seems ripe for a dissenting statement, I write to praise footnotes, rather than to bury them.
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Footnotes would be perfectly acceptable if we didn't have judges with overactive imaginations who want to use a footnote to create whole new doctrine. It is one thing to add useful background information...quite another to mentally blunder about and create wholly new doctrine made of mendacious musings that remind me of the Joker, saying "I just like the sound of it."
Posted by: Warren Norred | May 4, 2011 3:26:50 PM