Footnotes

Footnotes

This article examines the history and nature of footnotes and other annotational devices used
in legal and other literature, particularly law reviews. The topic has received considerable
attention in United States university law journals, which are heavily drawn on. The article
starts by considering the nature of the glossing process and identifying different sorts of
‘annotational engine’. Next the function of footnotes and other devices is discussed, the main
distinction being between reference notes and notes of substance.

There are five main uses:

  • to identify a source,
  • to shorten the text,
  • to make an aside or other comment,
  • to explain what is said in the text, and
  • to indicate revisions of the text.

There are also other types of footnote, which are discussed

There are eleven generally-agreed rules about the use of footnotes, which are set out. Finally there is an account of objections to use of footnotes, which have led some academics and judges to eschew them.

Introduction

I was tempted, as other writers in the long-running controversy over footnotes have been, to
attach these to the key words in the title of this article. However, that can be a nuisance when
anybody wants to cite the article, so I won’t do it. I am always anxious to retain the goodwill
of my readers, so I will put the footnotes in now when I mention the key words, namely
fussnotes [1] and engines [2].

One of the progatonists in the footnote controversy, Professor Fred Rodell of Yale Law
School, urged law review writers (and editors) to relax a bit with their style. I am taking his
advice, even though it was given as long ago as 1937. What he said was:

“There are two things wrong with almost all legal writing. [3] One is its style. The other is
its content . . . To go into the question of style then, it seems to be a cardinal principle
of law review writing and editing that nothing may be said forcefully and nothing may be said amusingly . . . One of the style quirks that inevitably detracts from the forcefulness and clarity is the taboo on pronouns of the first person. An ‘I’ or a ‘me’ is regarded as a rather shocking form of disrobing in print.” [4]

Well, things are very different now but I thought I would introduce Fred in that way. We will
be hearing further from him.

You will have noticed that at the end of the first of what will I’m afraid be many footnotes in
this article a footnote to a footnote was needed. I refrained from inflicting that on the reader,
though it has been done. Thomas Frognall Dibdin wrote a lengthy anecdote as a footnote to a
footnote. [5] Grafton records an early publication of the Warburg Institute that contained a set of four layers, footnotes to footnotes to footnotes to footnotes. [6] The impulse to research and write this article originated in an invitation I received to contribute to the 2003 Thematic Issue of the University of New South Wales Law Journal. [7] This contains nine articles altogether, with an average of around 100 footnotes each. The average is brought down by Justice Keith Mason’s contribution. [8]

This has one footnote only, which contains his reason for not including any other footnotes:

“I have endeavoured to wrestle with matters of general principle without the distraction
of footnotes. To those who may be concerned about a law review article without
footnotes, I refer to the body of writing on that topic.” [9]

The first sentence of this explanation is problematic. If footnotes distract anybody it is the
reader not the author, so providing footnotes would not have impeded the judge himself in his
‘wrestling’. [10] The reason why the judge’s article has only the one footnote is that, except on
the matter of footnotes, he cites no authority for his remarks. They simply reflect his own views on the matters he discusses; and why not?

Fussnotes And Glosses

When investigating the topic of footnotes I found a difficulty. There seems to be very little
research on their origins in legal writing. As Arthur Austin remarked, footnotes seem to be
‘the mark of a scholar but not the object of his study’. [11] Let me say at least that the word note
derives from the Latin nota, a mark or sign, which itself derives from noscere, to know. An
extension of this meaning is to ‘an explanation, comment or addition, added in the margin or
at the foot of the page, to a passage in a book, &c.’[12] A work to which detailed notes have
been added (especially in the margin) is said to contain annotations, a point to which its title
may refer: for example, The Annotated Dickens. [13]

I propose, because I think it would be useful, to introduce the term fussnote into the English
language to embrace not only footnotes proper but also any other appendages, such as
endnotes and marginal notes, which involve inserting little reference numbers or other
symbols at specific points in the text. [14] Gibbon’s footnotes in Decline and Fall began (in the
first edition) as endnotes. Then David Hume complained to the publisher they both shared,
William Strahan:

“When a note is announced, you turn to the End of the Volume; and there you often find
nothing but the Reference to an Authority: All these Authorities ought only to be
printed at the Margin or the Bottom of the Page.” [15]

Endnotes placed at the end of chapters rather than at the end of a book are called chapter
notes. In judgments there are also headnotes, of which it was said:

“Headnotes arranged vertically make a digest. Headnotes arranged horizontally make a
textbook. Textbooks arranged alphabetically make an encyclopædia. Every few years
some investigator has to disintegrate one of these works into its constituent atoms, add
some headnotes from recent decisions, stir well, and give us the latest book on the
subject.” [16]

My proposed treatment of fussnote (mentioned above) departs from the true meaning of the
German word, but that does not matter. When we English steal a term from another language
we always change its meaning, which absolves us from trying to pronounce it properly. To
avoid irritating the reader, which as I say I dislike doing, I shall refrain from using my new
term any further in this article. However when I refer to a footnote in what follows, a fussnote
is what I mean. [17]

Annotational engines other than footnotes include dedications, epigraphs, prolegomena,
prefaces, forewords, introductions, annexes, appendices (or appendixes) and even indexes (or
indices). [18] Each has its individual function in glossing the text, but gloss it they do – to a
greater or lesser extent. [19] A further element, also with its influence on the text, is the heading or subheading, sometimes placed in the margin as a sidenote. [20]

The useful verb or noun gloss derives from glossa, which in medieval Latin meant language [21]. It has several shades of meaning. The main one connotes the idea of a master text later modified by persons other than its creator. [22] The Oxford English Dictionary 2 has the following definition of to gloss:

“[T]o introduce a . . . comment, or explanation upon a word or passage in a text. Also in
wider sense, to make comments or remarks (esp. unfavourable ones) upon a person’s
words or actions. Often used in a sinister sense: a sophistical or disingenuous
interpretation.” [23]

Glosses have played an important part in the history of lexicography. Old English marginal or
interlinear glosses of Latin words were collected in more or less alphabetical lists, known as
glossae collectae (collected glosses), then glossaria (glossaries). These were the ancestors of
the first Latin-English dictionaries and ultimately of all English dictionaries. [24]

Glosses may be controversial. Thus of biblical glossators (writers of glosses), the Lollard
Wyclif said ‘þe wordis of Þes glosatouris passiÞ Goddis lawe’. [25] Perhaps the most celebrated
legal glossators were those who transformed Justinian’s Digest in the period of scholasticism.
Henry Goudy, Regius Professor of Civil Law at Oxford 1893-1919, said that when in the 12th
century the attention of European scholars began to be turned once more on the Digest it came
as a revelation to them. He went on:

“Dogmatic and exegetic teaching of the Corpus Juris in all its parts was actively begun,
and a new school arose called the glossarists (glossatores), of whom Irnerius has
always been rightly regarded as the founder. This great man . . . was more than a
glossator. He was also the first of the medievalists to treat the law in a scientific way.” [26]

The commentaries of glossators like Irnerius and Accursius eventually came to be seen as
integral parts of the texts they explicated. [27] A verse by Goethe has been freely translated as:

“The reader who on dear old ancients dotes
knows that he needs good glosses, and wants notes.
The moderns seem far easier, far straighter.
Yet they too need a talented translator.”[28]

Grafton remarks that the margins of manuscripts and early printed texts in theology, law and
medicine swarm with glosses which enable the scholar to work backwards from the finished
argument to the texts it rests on. They are, as Malcolm Parkes said, the ancestors of the
modern scholarly apparatus of footnotes. [29] The term gloss was also used of oral argument.
‘Ne glosez point le Statut’, said Hengham C.J. to counsel in 1303, adding ‘nous le savoms
meuz de vous, car nous les feims. [30]

There must of course be a text to hang the footnotes on. [31] This may be straightforward or
complex. An example of a complex text is one consisting of primary propositions each
followed by a commentary containing footnotes. [32] Footnotes have a variety of functions,
which will now be explained. Before that I should note that some would say their main
function is to attract attention to the author. This aspect has attracted the attention of what
Herma Hill Kay has called ‘the hottest new school of legal scholarship, the citation
analysts’. [33]

The Function Of Footnotes

The main distinction is between reference notes and notes of substance. This is illustrated
by the notes to the Everyman editions of Jane Austen’s novels, where the notation system
is complicated. For example in the Everyman edition of Emma the Introduction has its own
set of notes, notes of substance being placed at the end of the Introduction while reference
notes are located in its text. [34] Notes of substance to the text of the book itself are located at
the end of the book and indicated by superscript asterisks in the text.

A more detailed description of the varied functions of footnotes now follows.

To identify the source

Footnotes confirming direct quotations from the source relied on have been referred to as
probationes (proofs).[35] Scholarship requires that a text should possess originality and also
that its sources be acknowledged. However this should not be taken so far as to demand
that each sentence of the text is both original and also has a source.[36] Proper scholarship
requires glosses to identify themselves as such, and this is where footnotes exercise one of
their prime functions, to identify the source of material referred to. In historical scholarship
this practice has a long history. Grafton mentions the sixteenth-century antiquaries such as
Justus Lipsius:

“All of them cited their authorities lavishly. Lipsius, for example, built his account of
the Roman army around the relevant sections of the Greek text of book VI of
Polybius’ history of Rome, which he translated and analyzed in an extensive
commentary. He thus taught a formidable lesson in the importance of using primary
sources. So, even more directly, did the seventeenth- and eighteenth-century
antiquaries who collected medieval historical and legal texts in vast folios that
remain essential parts of any working historical library – even though most of these
editors found the texts themselves, considered as literature, impoverished. Most excused, rather than praised, themselves for printing such unpleasant but indispensable sources.” [37]

Many of these early sources were unreliable, or even forged. For example Brian Twyne
(born in 1580), who was one of the greatest of Oxford antiquaries, accused Camden of
Britannica fame of being an accessory to the insertion in Asser’s Life of King Alfred of a
forged passage suggesting that Oxford University was founded by Alfred.[38] Also writing in
the seventeenth century was the historian Pierre Bayle, who said of his more conscientious
colleagues:

“They try to verify everything, they always go to the source, they examine the
author’s intent, they do not stop at the passage they need, but examine closely what
precedes and what follows it. They try to make suitable applications, and to list
their authorities well. They compare them with one another – or indeed, they show
that they conflict. Moreover they make it their religion, when points of fact are
concerned, to make no assertion that has no proof.”[39]

Bayle tantalisingly noted that ‘If an author asserts things without citing his source, the
reader has occasion to believe that he speaks only on the basis of hearsay. If he does cite,
the reader fears he quotes the passage wrongly or misunderstands it’. [40] Speaking of Gibbon
and his critic Davis of Balliol, Grafton writes. “Both assumed – without arguing the point – that a serious work of history must have notes. Both evidently agreed that these notes must lead the reader to the original sources and represent them accurately. And both implicitly accepted that the apparatus [of notes] provided the diagnostic test of a historian’s critical expertise.”[41]

The present-day American Judge Mikva, attempting to give up putting footnotes in his
judgments, said:

“The biggest question has to do with citations of authority. If I thought I was fully
cured and that my crusade [against footnotes] was catching on, I would use footnotes
just for authority citations . . . As it is, because I am still full of footnote toxin, I put
my authority citations right in the text. The result is hardly conducive to a flowing
style of writing.”[42]

Even the great modern critic of footnotes Fred Rodell did not really think they could be
given up:

“Once in a while a Thurman Arnold forgets his footnotes as though to say that if
people do not believe or understand him that is their worry and not his. But even
such mild breaches of etiquette as these are tolerated gingerly and seldom, and are
likely to be looked at a little askance by the writers’ more pious brethren.”[43]

The Australian Liz Fisher said:

“The use of footnotes is tied in with far larger questions about what is the nature of
legal authority. Law, unlike other disciplines, is directly concerned with authority. It
is against a lawyer’s better instincts to state a legal proposition without citing the
cases or textbooks on which it is based.”[44]

To shorten the text

If the author of a text feels that it is necessary to pass a given mass of information to the
reader, it may be helpful to consign the most important elements to the text and put the
remainder in footnotes. The slimline text can then be read as a summary of the overall
message. The reader who is in a hurry, or anxious to imbibe only the essence, can ignore
the footnotes and read the text alone. Charles A. Meyer said, ‘When you’ve got too much
junk to fit in the house, the cellar may be about the only place to put it.’[45] He cited John E.
Simonett’s remark that tea need not be served in a cup with a saucer, but the saucer does
add a touch of elegance and catches the spillage.[46] Judge Mikva observed that there are
numerous examples of judges using footnotes to fight battles among themselves: ‘not
battles of style, but battles about the very warp and woof of the law (even if it is not the law
central to the case) – all relegated to the footnote category in order to keep the opinion
itself uncluttered’.[47]

To make an aside, or other comment

An important function of the footnote is to make an aside, that is an observation which
remarks on a point made in the text and would break the thread of the argument if inserted
in the text itself. Judge Mikva notes that Justice Stone of the US Supreme Court liked to
use footnotes in his opinions in order to generate debate over ideas he had not developed
fully.[48] He said that when this type of footnote came into use ‘[m]eat began to fall from the
text and into the footnotes’.[49]

A footnote comment may be serious, satirical [50] or humorous. Judge Mikva ended an article
titled ‘Goodbye to Footnotes’, which had of course contained no footnotes, with a footnote
reference 4. At the foot of the page he wrote: 4 Just what did you expect to find? [51]. Another
example of humour in a footnote was provided by J.M. Balkin, who at the end of a 45-page
law review article put as footnote 4 the following:

“[Note to the editors of the Law Review – place the entire text of this Article
(including this footnote with these instructions) in this footnote. If this causes a
problem of infinite regress, improvise].”[52]

To explain what is said in the text

This is what Fred Rodell called ‘the explanatory or if-you-didn’t-understand-what-I-say-inthe-text-this-may-help-you’ type of footnote. [53] Scott M. Martin rejoined that explanatory footnotes enable authors to address two audiences simultaneously: ‘to a sophisticated
audience in the text, while filling in the more basic elements for the neophyte in the
footnotes, or the reverse, with basic text and elaborating footnotes’.[54] The difficulty with
this suggestion is that the reader might not be readily able to determine which of these two
alternatives was employed in the document in question.

To indicate revisions of the text

Richard Bentley published a corrected edition of Milton’s Paradise Lost, claiming that the
author’s blindness had precluded him from adequate proof-reading so that the original text
embodied all the errors of his amanuensis. Furthermore ‘a later “editor” had added further
mistakes and interpolated foolish verses of his own composition’.[55]

There are other types of footnote. Arthur D. Austin identifies lead-in quotes as ‘a special
form of footnote’.[56] He also castigates the Author’s Note, which ‘provides the opportunity
to consummate a cluster of self-serving goals’.[57] A third target of Austin is what he calls the titillating footnote, the object of which is ‘to embellish the text with sources that add flair, pique interest, and convey the impression that the author’s scholarship has gone beyond the mundane’.[58] Austin also mentions the ideological footnote (e.g. ‘I am indebted to … for … sharing my outrages …).[59]

Footnote Rules

There are generally-agreed rule about the use of footnotes. I will now set out what I see as
the main ones.

Check against the primary source, not a secondhand source

The Archangel Gabriel, when inditing the footnotes to the Book of Life, invariably goes to
his/her source in order to check that everything is correct. Lesser mortals occasionally copy
a footnote reference from another book or article without doing this indispensable
checking. The result is that they may carry forward an error made by the previous author
(who had probably done the same thing). In this way mistakes can be perpetuated, but the
comfort is that they are rarely spotted.

Do not cite material inaccurately

If you put material within quotes there is a strict duty to reproduce it accurately, even
though there is said to be an art to misquotation.[60] If a source is cited for a proposition that

is not put within quotation marks, more leeway is allowed. Of Gibbon, Grafton says:
‘Many of the texts he cited, as he pointed out with an honesty that deserves respect, had to
be “softened” if they were to be made to agree far enough to yield a coherent narrative or a
plausible analysis of a political institution or a social development’.[61]

Do not cite material for improper reasons

Editors of books and journals are constantly striving to discourage their authors from
inserting footnotes that are not strictly necessary. If a work is lengthened by unnecessary
footnotes it costs more to print and publish. If it is an article in a journal, other writers may
be crowded out. It may be arguable whether a particular footnote is ‘necessary’: it is a
matter of judgment on which opinions may legitimately differ. In the long run, it is the
author’s judgment that should win the day (I speak of course as an author).

What does come to the editor’s aid is the proposition that a footnote should not be included
for an improper reason, though here again opinions may differ. Dean Swift mocked the
ways of scholarship by putting a row of asterisks in his own material and noting in the
margin: ‘hiatus in MS’.[62] In this way, as Grafton says of Pope’s similar writings, ‘the
footnote came, not for the last time, to play a comic role, and at the heart of a major writer’.
Was this improper? Hardly, when the culprits were of the stature of Swift and Pope.
Grafton notes that systematic use of documentation in historical works was often due to
scholarly controversy, and that the texts were often polemical.[63] Again, this can scarcely be
called improper.

We get nearer the mark when the object is personal vanity of one kind or another. One
improper motive was identified by Grafton when he said ‘Citations are heaped up, without
much regard to their origins or compatibility, in order to make the text above them seem to
rest on solid pilings’.[64] Another was indicated when Grafton quoted ‘a recent, intelligent
essay’ in German which points out that in modern American classical scholarship footnotes
often serve to prove the author’s membership in a guild rather than to illuminate or support
a particular point.[65] Another failing is to return a citation of your work by a colleague, or
favour a superior’s work in the hope of promotion.[66]

Do not steal other people’s work

It is dangerous, as well as improper, to use another scholar’s material without
acknowledgment. It is called plagiarism. Even to acknowledge the source may lead to
trouble if it goes beyond what is allowed by the Copyright Acts.

Remember you are a scholar

Do not cite inappropriate material, such as personal trivia.[67]

Be restrained in citing your own work

There is a natural temptation to cite one’s own work, but this tends to be frowned upon as
due to overweening vanity. The fact that there may be a sound reason for doing this will cut
no ice. You may be stout-hearted enough to ignore the chorus of disapproval, and if so
good luck to you. I have often cited my own work in books and articles for the simple
reason that to do this in effect extends the current effort without taking up any space. It
seems to me better to let the reader see another extended text relevant to the current
argument rather than extending the present text with what would inevitably be an
inadequate restatement of something I have said before elsewhere.

A draft of my article referred to above [68] was put before an anonymous referee who
commented that it might gain in authority if more other authors than myself were cited. I
rejoined:

“My answer to the rather snide final sentence is that, as those familiar with the subject
are aware, I have for many years been a pioneer in the field of statute law. I regret
that it is not possible to supplement the references to my own work as suggested,
because to my knowledge additional sources simply do not exist on the points I refer
to. I do not think that weakens what I say, since the appeal is to the reader’s own
mental processes rather than to supposed ‘authority’. I cite my own work not out of
vainglory but as a method of extending my detailed arguments beyond what there is
space to do in the article itself.”

It seems to me that the referee’s reference to the desirability that my article should ‘gain in
authority’ was misconceived. Like most articles in law journals, mine did not aim to be an
authoritative statement possessing the nature of a papal bull or Act of Parliament. Instead it
aimed to persuade solely by the clarity and effectiveness of its reasoning. This reasoning
process depended to some extent on the citing of authorities such as Acts of Parliament and
judicial decisions, which needed to be correctly described and sensibly employed. It also
referred to arguments set out in books and articles by other legal scholars, but these could
scarcely add to its ‘authority’. In fact it had no ‘authority’. Its success or otherwise entirely
depended on its author’s own clarity of reasoning and originality of thought. This being the
case with most products of legal scholarship, I suggest that any inhibitions felt by authors
over citing their own work, and criticisms of them for doing so, are misplaced.[69]
I turn now to some technical points on the use of footnotes.

What to use as a footnote indicator

It is convenient to use numbers, so as to accommodate an unlimited number of footnotes.
However Judge Mikva, when he was trying to cut down on the footnotes inserted in his
judgments or opinions, adopted a different course:

“To resist temptation, I have ordained an ‘asterisk’ policy in my chambers. I tell my
clerks and myself that if something must be discussed that is really ill-suited to the
text, I will use asterisks rather than numbers, cumulating them for each successive
note. I hope that the embarrassment of an opinion full of asterisks will control my
willingness to succumb to footnotes.”[70]

For texts which authors and publishers wish to keep free of superscript symbols, their
endnotes or chapter notes are keyed to such points of reference as page numbers or else
they repeat identifying phrases from the text.72 Where the text is to be published in a law
journal the house style of the journal may constrain the author. The equivalent may also
happen where the subject-matter is a book.

Where to put the footnote indicator

A footnote should be a comment on a sentence or longer passage, so the footnote indicator
should not be placed in the middle of a sentence. A person who infringes this rule is called
by Charles A. Maher a Midsentence Dislocationist, ‘who expects the reader to resume
reading the text at midsentence as though not the slightest distraction had intervened’.[72]
The rule does not apply where the footnote is intended to apply to a particular word or
phrase within the sentence.[73]

Do not place a comment on a footnote within the text

Writing disapprovingly of footnotes used in judicial opinions, Judge Mikva said: ‘Pointcounterpoint, countered-counter-point – the majority and dissenters hurl footnotes at each other, sometimes becoming so provocative as to require answers in the body of the opinion itself’.[74]

Use the accepted abbreviations

To save space, but also as a legacy from the days when Latin was the language of panEuropean
scholarship, authors and editors have tended to use, in text and notes, Latin terms
of reference, usually in abbreviated form and often printed in italic. [75]

Include aids to citation

A work may need to contain aids to its citation. A reference tool such as a learned journal
or law report should always indicate how it should be cited. Grafton notes that early printed
books in large formats often used capital letters in the margins to aid citation of particular
passages. [76] Modern law reports still use this method. A valuable aid to citation is the 391-
page Bluebook compiled by the editors of the Columbia Law Review, the Harvard Law
Review, the University of Pennsylvania Law Review, and The Yale Law Journal. [77] I am an
admirer of the Bluebook despite the notorious attack on it by Judge Posner, who said:

“The Bluebook displays an excessive, an unhealthy – one is almost tempted to say,
since this is still the land of freedom, an un-American obsession with uniformity. By
teaching that uniformity is one of the most important things in law, the Bluebook
encourages the tendency of young lawyers, many of whom in their larval stage are
law review editors and in their chrysalis stage the ghostwriters of judges and senior
partners (the butterflies), to cultivate a most dismal sameness of style, a lowestcommon-denominator style.” [78]

The Bluebook does not teach that uniformity is one of the most important things in law;
that would be absurd. It is a low-level tool but nevertheless a useful one. It is helpful to
have a ready guide to citation wording so that one can concentrate on the wording that
matters, that of one’s original composition. It does not detract from any writer’s style to
employ a uniform system of citation; on the contrary. The essence of style lies elsewhere.

Objections to Footnotes

Generally

As we have seen, the use of footnotes goes back a long time and extends to a wide variety of
publications. Yet it has aroused opposition. This comes down to the present day, as indicated
by a recent comment on the Society of Antiquaries: ‘A passion for obsessively meticulous
footnotes robbed their publications of a wide readership.’80 Noel Coward is reputed to have
said that encountering a footnote is like suddenly having to answer the doorbell just as you are
reaching an amorous climax.

Critics say that concentration on the inclusion of footnotes robs a scholar of objectivity and a
wider view of his subject. G. M. Trevelyan, it is said (By Tristram Hunt, Times Review 17 January 2004, p. 6), had little time for historians who failed to rise above the footnote. At the same time footnotes may inconvenience the reader.

According to Roger C. Cramton ‘[t]he tendency to provide a citation for every proposition
distracts the reader and may contribute more to form than substance’ (Cited Arthur D. Austin, n. 57). Pierre Schlag alleges that footnotes are part of ‘fancy scholarship’ that is ‘bereft of any useful guides as to what judges or legislators or any other legal actors should do’. (Pierre Schlag, ‘The Brilliant, the Curious and the Wrong’ (1987) 39 Stanford Law Review p. 917 at 925).

In what follows I confine a description of this opposition to footnotes to its manifestations in
relation to (1) law reviews, and (2) judicial opinions or judgments.

Opposition to footnotes in law reviews

I have already mentioned opposition by the Australian Justice Keith Mason. However the
attacks have mostly been levelled by United States academics. As we have seen, an early if
crude attack on footnotes in law journals came from Professor Fred Rodell of Yale Law
School (Surprisingly Judge Mikva called this a ‘classic piece’). In a later article Rodell called them ‘phoney excrescences’. (Fred Rodell, ‘Goodbye to Law Reviews – Revisited’ (1962) 48 Virginia Law Review, p. 279 at 289.

Here Rodell described (at pp. 289-90) how since the earlier article he had included no footnotes in a legal article except once, when he had a solitary footnote stating that all other footnotes in the article were supplied by the editor. This might be called a cop-out.

Scott M. Martin riposted that far from being a weakness of law reviews, as Rodell maintained, footnotes are one of their greatest strengths.88 Other American academics have attacked the use of footnotes (for an exhaustive list of articles supporting or opposing Rodell see Scott M. Martin).

Blame for excessive footnoting has attached to the fact that in the United States law reviews
have for long been edited largely by students (The first student-edited law review is said to have been the Albany Law School Journal, published in 1875). Professor Arthur Goodhart explained why British universities have no equivalent of the American student-edited law review (now also
found in Australia and elsewhere). Law is taught in Britain primarily as an undergraduate subject to students who enter university at the age of eighteen. ‘It would not be reasonable to expect such youthful students, even in their third year, to do the advanced and original work that is accomplished by the editors of the American university law journals’. (A. L. Goodhart, ‘The Jubilee of the Iowa Law Review’, 50 Iowa Law Review (1964) p. 1 at 3).

Scott M. Martin says that aside from their usefulness to the reader, footnotes also are
important in maintaining the high level of scholarship found in law review articles. ‘Writing
footnotes forces the author to justify each substantive point, and the process of editing the
footnotes increases the likelihood that the editors will uncover any shortcomings or shortcuts
in the substance of the article.’

Opposition to footnotes in judgments

Use of footnotes in judgments is little known in Britain (Lord Rodger of Earlsferry, ‘The form and language of judicial opinions’ 118 LQR (2002) 226 at 234). It is widespread in the United States, where the first Supreme Court opinion to be given numbered footnotes was in 1887. (Viterbo v Friedlander 120 US 707 at 714) It is now common in the Australian High Court.

American opponents have identified the desire that some judges have to use footnotes in
pathological terms. As we have seen, Judge Mikva called it ‘footnote toxin’ and said he was
still full of it. He said that this poison has ‘spread like a fungus’ and that its use in judicial
opinions is ‘an abomination’. He added ‘I hate to read footnotes. I always lose my place in
the text and miss the train of thought the author was trying to get me on’. He also
complained that American judges use footnotes to deal with the advocate who, rather than
relying on his or her best shot in argument, ‘throws in everything but the kitchen sink in the
hope that some judge will bite on one or other of the throwaways’. He said that rather than do
this the judge ‘should bite the bullet by saying ‘We have considered the other points raised
and they need no discussion’’.

Arthur J. Goldberg, an associate justice of the US Supreme Court 1962-65, also expressed
dislike of footnotes in judicial opinions. (Arthur J Goldberg, ‘The Rise and Fall (We Hope) of Footnotes’ (1983) 69 American Bar Association Journal 255. For a contrary view see Edward R. Becker, ‘In Praise of Footnotes’ (1996) 74 Washington University Law Review). He said that if an issue is important it should be incorporated in the opinion and not relegated to footnotes, ‘which can be troublesome and diverting [and interfere with] judicial economy and the readability of opinions’. He added (in the same article) that ‘it is even possible to refer to statutes in the body of an opinion’.

A complaint against the use of footnotes in judgments is that in some cases the footnote has
come to be regarded as more important than the text. Judge Mikva identified the following
examples: footnote 4 in United States v Carolene Products (304 US 144, 152 (1938). For a citation of twelve articles on footnote 4 see J.M. Balkin, n. 53 above at 281 note 16. Balkin’s entire 45-page article is a deconstruction of the Carolene opinions. Its title refers only to footnote 4), footnote 59 in United States v Socony Vacuum Oil Co, footnote 37 in Crane v Commission,104 footnote 16 in Terry v Ohio, and footnote 12 in Ernst & Ernst v Hochfelder.

Conclusion

The fact is that, among the various types of what I have called annotational engines, footnotes
have an important part to play in relation to a text. The unadorned text may be likened to a
newly-erected house, finished but not yet decorated or furnished – and with its garden not
marked out or planted. To fulfil its purpose adequately, it needs more than just itself. But all
such aids to understanding should be deployed by authors and editors with discretion. The old
motto applies: if in doubt leave it out.

Note: This article is referred to in ‘Writing Judgments’ by Lord Hope of Craighead: see
https://www.jsboard.co.uk/downloads/annuallecture_2005_proof_220305.pdf In footnote 29
Lord Hope quotes the conclusion of the article and applies it to judgments.

Source: Francis Bennion

Resources

Notes

1. Fussnote is the German for footnote. ‘Die fussnote ist (oder gibt vor, es zu sein) Träger
wissenschaftlicher Information’ (‘The footnote is, or pretends to be, the carrier of scholarly
information’): P. Reiss, Vorstudien zu einer Theorie der Fussnote (Berlin and New York, 1983-84) p. 3.
2. I use this word in its sense of ‘a product of ingenuity; an artifice, contrivance, device’ (OED2). The law reports contain a reference to ‘replications, traverses, novel assignments, and other engines of pleading’: Yates v Carlile (1761) 1 Wm Bl. 291.

3. Inclusion of the words almost all is crucial here. All the people whom, for professional reasons, Fred Rodell did not wish to offend would have thought those two innocent words let them out.

4. Fred Rodell, ‘Goodbye to Law Reviews’ (1937) 23 Virginia Law Review p. 38 at 38-39.
5. The Bibliographical Decameron, 3 vols. (London, 1817), 3: 59-60. Cited A. Gillespie, ‘Balliol M.S.
354: Some Histories of the Book’, Balliol College Annual Record 2003, p. 17.
6. Anthony Grafton, The Footnote: A Curious History (Harvard University Press, 1997), p. 234. I draw extensively on this splendid book, hereafter referred to as ‘Grafton’. On footnotes to footnotes see also Maher, Charles R, ‘The Infernal Footnote2’ (1984) 70 American Bar Association Journal (April 1984) p. 92.
7. (2003) 26(2) UNSWLJ.
8. (2003) 26(2) UNSWLJ, pp. 442-446.
9. (2003) 26(2) UNSWLJ, p. 446. In his solitary footnote the judge then cites a number of sources, all of which are duly given footnotes of their own in the course of the present article.
10 How anyway do you ‘endeavour’ to wrestle?
11. Arthur D. Austin, ‘Footnote* Skullduggery** and Other Bad Habits***’ (1990) 44 University of Miami Law Review p. 1009 at 1009.
12. Encyclopedia Brittanica, 11th edn (1910-11), vol. 19, p. 823.
13. Orbis, two volumes, 1986; see The Oxford Companion to the English Language, ed. Tom McArthur, (Oxford, 1992), p. 709.
14. I accept that marginal notes do not necessarily require little numbers or symbols in the text. Gibbon for one managed without them.
15. David Hume’s letter to William Strahan, 8 April 1776; cited Grafton, pp. 102-103.
16. Zechariah Chafee Jr., 30 Harvard Law Review (1917), p. 300.
17. Except of course where the context otherwise requires.
18. For extracts from a legal index which contrives to combine (often amusing) glosses with factual information see Annex A to this article.
19. Usually an index does not gloss the text, but there are exceptions (see Annex A to this article).
20. This is one of the elements of an Act of Parliament known as unamendable descriptive components: see F.A.R. Bennion, Statutory Interpretation (4th edn., 2002), s. 251.
21. I decline to provide a footnote verifying this well-known fact.
22. The creator may and often does gloss his own text; but when this occurs subsequently to the original production it is called revision. In middle age the scientist Kepler wrote a commentary on his own early work Mysterium Cosmographicum ‘in order to explain to readers in the distant future the personal circumstances and particular experiences that had given that book its shape and content’: Grafton, p. 27. As regards my own work I do not have that much confidence in readers in the distant (or even the near) future.
23. Oxford English Dictionary (2nd edn, 1992). The ellipsis hides an error by the OED2 compilers in using the term being defined as part of its definition.
24. The Oxford Companion to the English Language, ed. Tom McArthur, (Oxford, 1992), p. 443.
25. Wyclif, Select Works (1380), III. 258.
26. Encyclopedia Brittanica, 11th edn (1910-11), vol. 23, p. 576.
27. Grafton, p. 27.
28. Grafton, p. 28 n. 54. The last line reminds us that translation of a text into another language
inevitably involves glossing.
29. Grafton, p. 30.
30. ‘Do not gloss the statute; we know it better than you do for we made them’: Y.B. 33-35 Edw. I
(R.S.), p. 82 at 83.
31. Every rule has its exceptions, and there are examples of works consisting entirely of footnotes: see Grafton, p. 120. Another variant is to place all the footnotes first, then follow with the text (see e.g. Herma Hill Kay, ‘In Defense of Footnotes’ 32 Arizona Law Review (1990), p. 419).
32. See Grafton, pp. 213-4. My own book Statutory Interpretation (4th edn 2002) takes this form.
33. See Herma Hill Kay, ‘In Defense of Footnotes’ (1990) 32 Arizona Law Review p. 419 at 426. On
citation analysts she cites (n. 25 on p. 424) Shapiro, The Most Gifted Law Review Articles, (1985) 73 California Law Review p. 1540.
34. See e.g. p. xxxvi.
35. Grafton, p. 104. These are what Fred Rodell called ‘the probative or if-you’re-from-Missouritake-a-look-at-this type of footnote’: see n. 5 above, p. 38 at 40.
36. See Grafton, p. 143: A set of critics ‘identified a genuine paradox in the modern routine of
documentation, which claims to require that one prove both that each sentence is original and that it has a source’.
37. Grafton, p. 179.
38. Strickland Gibson, ‘Brian Twyne’, Oxoniensia V (1940), pp. 98-99.
39. Dictionnaire Historique et Critique (1697), Epicure, footnote D, I, pt.2, p. 1046; cited Grafton, p. 199.
40. Cited Grafton, pp. 208-9.
41. Cited Grafton, p. 101.
42. Abner J. Mikva, ‘Goodbye to Footnotes’, (1985) 56 University of Colorado Law Review, p. 647 at 652.
43. See n. 5 above, at p. 41.
44. Liz Fisher, ‘Some notes on footnotes’, 71 The Australian Law Journal (April 1997), p. 245 at 247.
45. Charles A. Maher, “The Infernal Footnote”, American Bar Association Journal, April 1984, p. 92.
46. John E. Simonett, American Bar Association Journal, December 1969. Charles A. Maher adds ‘Which spillage is poured down the sink, where it belongs’ (ibid.).
47. See n. 42 above, at 650. For the controversy over footnotes in judgments see below.
48. See n. 42 above, at 649.
49. See n. 43 above, at 648.
50. See e.g. F. Palmeri, ‘The Satiric Footnotes of Swift and Gibbon’, The Eighteenth Century, 31
(1990) pp. 245-262.
51. See n. 43 above, at 653. The significance of ‘footnote 4’ will appear later.
52. J.M. Balkin, ‘The Footnote’ (1989) 83 Northwestern University Law Review 275 at 320.

53. See n. 4 above, at 40.
54. Scott M. Martin, ‘The Law Review Citadel: Rodell Revisited’ (1986) 71 Iowa Law Review p.
1093 at 1097.
55. Grafton, p. 112.
56. ‘Footnotes as Product Differentiation’ (1987) 40 Vanderbilt Law Review, p. 1131 at 1144 n. 57. Lead-in quotes are a ‘pretentious form of first-page differentiation . . . whereby the author prefaces the main body of the text with a quote from an esteemed scholar, a famous decision, or some other prestigious source’ (ibid.).
57. Loc. cit., p. 1145. Here Austin attacks in particular Robert S. Summers, well-known as co-author with P.S. Atiyah of Form and Substance in Anglo-American Law (Oxford, 1987): loc. cit., p. 1144 n. 67. On the Author’s Note see further Arthur D. Austin, n. 12 above, at 1009.
58. See n. 11 above, at 1018-20.
59. See n. 11 above, at 1024-6.
60. See J. Whittaker, ‘The Value of Indirect Tradition in the Establishment of Greek Philosophical Texts, or the Art of Misquotation’ in Editing Greek and Latin Texts, ed. J. Grant (New York, 1989), pp. 63-95; cited Grafton p. 29 n. 56.
61. Grafton, p. 101. This is why narrative history, though lay readers clamour for it, is frowned on by modern purist historians.
62. Grafton, p. 113.
63. Grafton, p. 189 n. 82.
64. Grafton, p. 108.
65. ibid. Arthur D. Austin says ‘footnoting is now the law professor’s most effective method of
differentiating his work from that of his rivals’: see n. 55 above, at 1135.
66. Arthur D. Austin quotes Frederick C. Thorne as stating ‘It is not unusual for researchers who are working on a common problem to cite each others’ work almost conspiratorially. Each one cites all the other’s work and thus both secure increased personal and research exposure’: Arthur D. Austin, ‘Political Correctness is a Footnote’ (1992) 71 Oregon Law Review 543. For an elaborate treatment of what he calls ‘cite motives’ see Arthur D. Austin, n. 56 above.
67. Arthur D. Austin questioned the relevance or good taste of a writer expressing ‘appreciation to her lover’: see n. 11 above at 1026 n. 121. Elsewhere Austin cited a law review footnote which began ‘The author is an open lesbian, in a monogamous and committed relationship; she likes sex’: see n. 68. above at 551.
68. See n. 7 above.
69. On self-citation see further Arthur D. Austin, n. 11 above at 1026-8.
70. See n. 42 above, at 652.
71. See n. 24 above, p. 709.
72 See n. 45 above, at 92-3. I can only say why not? I expect my readers to be of tough fibre.
73 See e.g. n. 68 above.
74. See n. 42 above, at 651.
75. See n. 24 above, p. 709.
76. Grafton, p. 219 n. 57.
77. The Bluebook: A Uniform System of Citation (17th edn., 2000), published and distributed by The Harvard Law Review Association.
78. Judge Richard A. Posner, ‘Good-bye To The Bluebook’, 53 University of Chicago Law Review
(1986), p. 1343 at 1349.


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