Tuesday, May 5, 2020
Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana, which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style that are always smoldering on #appellatetwitter.
Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.” Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.
Garner co-authored Making Your Case: The Art of Persuading Judges, with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations. Of course, Garner argued for the use of footnoted citations; Justice Scalia, “disapprove[d] this novel suggestion.” So let’s review some of the pros and cons of both and then you decide which you favor.
But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority. The latter is important because it helps the reader evaluate the relative value of one authority as compared to another. We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted? So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.
Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority. Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.” This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.
Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation. So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S. 209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.
The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.” Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.
Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc., with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.
 No. 18-5924, slip op. (U.S., April 20, 2020).
 Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.
 Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418
 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).
 Id. at 132-35.
 Id. at 132-33.
 Id. at 133.
 Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).
 See id. at 881.
 Scalia & Garner, supra note 5, at 132.
 431 U.S. 209 (1977).
 Scalia & Garner, supra note 5, at 134.
 No. 18-1233, slip op. (U.S., April 23, 2020).