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Magat, J A --- "Bottomheavy: legal footnotes" [2011] LegEdDig 40; (2011) 19(3) Legal Education Digest 30

Bottomheavy: legal footnotes

J A Magat

Journal of Legal Education, Vol. 60, 2010-2011, pp 65-106

Not so long ago, a professor contributing to an academic listserv asked the participants what they knew of ‘the continued viability or happy demise of the 2:1 footnote ratio rule’. (Presumably, this ratio referred to twice the lines of footnotes as of text per page.) The professor reported that, the preceding year, a third-year journal editor had threatened not to credit a student’s journal note ‘because it did not strictly conform to the 2:1 footnote ratio’. The professor advised the student that such a rule was bunk and referred her to an article that remarked on the danger of citing quantities of sources (a practice facilitated by using key words to locate any number of related articles on databases), rather than sources read, digested, and selected for their appropriateness and quality.

Putting aside such myths, though, does not get us very far. Academic legal writing is still plagued with lead feet below the line.

Models for citation form and use in peer-reviewed journals are sometimes governed by journal convention, sometimes by such citation manuals as the MIA (Modern Language Association) Style Manual and the American Psychological Association (APA) Publication Manual. Some use endnotes which at least clean clutter from the bottom of text pages. Some depend on no more than the author’s name and the page number of the source parenthetically inserted into the text; sources are listed at the end. This model, suggested by both the MLA and APA manuals, is alluring for its simplicity; but for a number of reasons the shoe doesn’t fit the gargantuan foot that academic legal writing has become.

Readers come to a text with a range of expertise and a range of wants.

Textual footnotes are expected to span the gaps – to inform the neophyte who cannot fully understand the text without further explanation, or, for the cognoscenti, to expand on the text’s simpler point. Some readers are seeking chiefly what the text above the line has to say; others will read more cynically, examining sources and surfing every tangential wave.

If we know our audience, we can adapt our writing styles both above and below the line to satisfy its expectations and needs.

Most readers nowadays inhabit a technological jurisdiction combining the printed word and the virtual one. When the baton has passed from one to the other (and it will), so will access to the source. Even now, URLs are common in law-review footnotes. Footnote cites ought to be restricted, whenever possible, to the primary source, whether to substantiate a statement of fact or to acknowledge a thought’s origin.

Criticism of the footnote is just about as old as the footnote itself. Funny, that with so many great minds denouncing its worth, the footnote has not just survived; it has flourished.

The rationale for probative footnotes varies, depending on point of view. For the author, the first, most obvious reason for documentation is to give credit where credit is due. The obligation is an ethical and, through the Copyright Act, a legal one: the Act’s fair-use provisions afford no license for taking another’s ideas or expression without attribution.

The writer has other reasons to footnote, though, which may contribute to her credibility and which surely contribute to bulk below the line. One is that citations can indicate the quality and, more perceptibly, the quantity of support for a writer’s point. Another is that they demonstrate the writer’s diligence, ‘that [her] positions are well researched and well supported’.

From the reader’s point of view, though, of what use is a citation? Primarily verification, surely.

Secondarily, the sources cited invite further study. For the researcher, footnotes are finding tools.

Useful as the finding function is to the researcher, though, it is of little value to the reader who simply wants to see what this author has to say. (And it is nothing but trouble for the student editor who must locate and verify the particulars of each source).

At the bottom of the rationale heap is the footnote of value chiefly to the writer and her peers-the footnote citing a source just for the sake of its being cited. Alas, academic prowess is based in part upon the number of articles in which one’s work is cited.

At least one scholar accuses writers – particularly those up for tenure or wishing to demonstrate their competence in a new field – of ‘strategic footnoting’, which ‘serve[s] to indicate a relationship, not merely between texts, but between the author of the article and the authors of the cited materials’. ‘It often appears that it is at least as important that the appropriate people be cited as that the appropriate statements be supported’. ‘Hat-tipping citations’ to prestigious authorities, particularly, serve two purposes: They indicate that the author has ‘done his homework’, and they reflect ‘respectability by association with recognised sources’.

Sources aside, a footnote is room for the text to stretch into parenthetical comment. Too many explanatory footnotes are not just sotto voce asides or the entertaining release of the author’s inner child; they are loud and lengthy detours. Such avoidable tangles of tangents are more often than not an irritation and a distraction; only occasionally are they more compelling, or at least more witty, than the text.

Explanatory footnotes can be so complete (and ample) as to comprise a second text; indeed, Jean Jacques Rousseau may have been one model for this practice, warning readers of the 1755 edition of the Second Discourse that its notes ‘sometimes stray so far from the subject that they are not good to read with the text’.

Contemporary legal scholars and aficionados of the ‘second text’ class of explanatory notes instead modulate their own indulgence with a modicum of self-mockery: ‘My attempt’, says one, ‘was to make the footnotes just as important as the proper text of this paper ... The purpose of this technique is to eliminate the mystique of second-class status that is generally communicated through the use of a footnote. ... Footnotes are not meant to be glossed over’.

But the law-review article is, ordinarily, intended not to entertain, but to enlighten. And the author’s intrusion via footnote is a messy means to that end. Explanatory footnotes permit the legal academic ‘[to] be obscure and befuddled in the body of his article and then say the same thing at the bottom of the page the way he should have said it in the first place’. This kind of footnote is a friend to the writer for whom tight, exact expression is elusive.

Some writers use the author’s note ‘as a substitute peer review system’, listing the names of those who have read the manuscript: ‘Publishing a stream of names in an author’s note can sustain a movement to higher status and reputation’. Motivational kin to these are ‘non-verifiable’ references to notable colleagues with whom conversation proved fruitful for the article’s inspiration and development.

The growth in the asterisk note may have contributed to what one scholar sees as the decline of the ‘omnibus note’, which would immediately follow. The omnibus note cites ‘all basic scholarship related to the topic’, including sources that the author ‘didn’t understand well enough to cite for a particular proposition’. The effect of the ruse is, at the article’s very outset, to ‘make the writer appear very learned, indeed’.

The earliest footnotes, penned by scholars of the Roman Empire and ancient Israel, were copious commentaries on the complex texts contributing to their scriptures. Over the next several centuries, the scholar’s attention shifted to parsing secular Latin texts, his objectives eventually supplementing scrutiny of grammar with ‘correcting every error, explicating every literary device, and identifying everything or custom that cropped up in a classical text’.

The footnote’s ‘stylistic decline’ in the 19th and 20th centuries to ‘a list of highly abbreviated archival citations’ may have come as a loss for readers of history who loved artful commentary. Some contemporary historians, though, wishing to please both scholarly and generalist readers, have practised a variation on the ‘second text’ theme by subsequently publishing endnotes in a separate volume or depositing an annotated manuscript in the Library of Congress.

The radical notions of revisionist historians has influenced legal writers not a whit. Commentary has burgeoned in American law reviews. One scholar categorised and counted footnotes in nine representative law journals in ten year periods from 1938 through 1978. ‘Discursive footnotes,’ those ‘at least a half ... page in length and not ... compelled by parent ideas and arguments in the text,’ he reported, were less than half as numerous in 1938 as in 1978.

The major citation manuals all mandate that direct quotations be footnoted and that the footnote include a pinpoint citation. This mandate cannot be faulted.

For anything other than a direct quote, the directives are less than unanimous. ‘In general’, says the Bluebook, ‘you should provide attribution for all sources – whether legal or factual – outside your own reasoning process’. One law professor tells his students that their footnotes ‘should reflect that you have taken into account every significant book or article that is out there’; the only exceptions to sentences needing footnotes are ‘pure argument, topic sentences, and conclusions’.

The MIA Style Manual, like the Bluebook, says, ‘Everything derived from an outside source requires documentation – not only direct quotations and paraphrases but also information and ideas’. Notably unlike the Bluebook, though, the MIA Style Manual permits the rule to be tempered by ‘good judgement as well as ethics’: one needn’t cite ‘sources for familiar proverbs (‘You can’t judge a book by its cover’), well-known quotations (‘We shall overcome’), or common knowledge (‘George Washington was the first president of the United States’).’ The Chicago Manual of Style advises identifying the sources ‘of any facts or opinions not generally known or easily checked’.

Might it not now be possible nonetheless to apply such sane if relaxed rules to law journals? Might they also be applied to interdisciplinary journals, whose readership is even broader and not necessarily even legally trained?

We’ve moved out of the archives, into the ether. The Internet is our new standard of what is ‘easily checked’ or readily available. Even if we don’t yet read our journals online, what can be ‘easily checked’ should include what can be accessed online. Another rule of thumb might be that a source found in at least three online sources needn’t be cited.

But the congestion in footnotes does not come from too many primary sources. It comes from chain cites of secondary sources, from a plethora of ‘ids’, and from the undisciplined use of signals.

One scholar reported watching his footnotes multiply in the hands of the law-review editors. ‘They will offer publication of my latest article’, he said, if only I will agree to about 30 more footnotes’.

Direct quotes must be referred to with a specific, pinpoint citation (the ‘pincite’). According to the nebulous guidelines of the Bluebook and the ALWD Manual, paraphrased material would be treated likewise. The APA and ASA back off only slightly, ‘encourag[ing]’ but not requiring pincites’.

When a single thought is being developed and a single source discussed, there is no reason to have more than one footnote. That footnote can go at the end of the paragraph, so long as, from beginning to end, neither a direct quote nor another source is involved.

In legal writing, pincites for every paraphrase or allusion proliferate a chain of ‘ids’. For an entire paragraph that relies on the same source, a single citation should suffice; if the information derives from a series of pages, a page span will do.

Eliminating the chain of ‘ids’ requires modified behaviour by both author and reader. The reader would have to learn to wait for the cite; the writer would have to provide signals in the syntax to make clear what can be ascribed to the cited source and what is her own.

Such signals are the hallmarks of careful, clear writing, which enable the reader to grasp the source of each point without having to chase the footnote numbers to the bottom of the page.

The same suggestion goes for textual footnotes, which can suffer the same glut of ‘ids’. In footnote text, the effect is doubly distracting, for the ‘ids’ and their pincites erupt between sentences.

The absence of ‘id’ or ‘id. at X’ following every sentence facilitates the read. What the reader ultimately needs – enough information to find the source on her own – is supplied.

One species of footnote clutter in law-review text is the signalled cite and its too-common parenthetical comment. If law-review footnotes are excessive, here (explanatory footnotes aside) is the culprit, in both the bibliographic accretion of sources they invite, and in the explanations that their use may require. The Bluebook ‘strongly recommends’ explanatory parentheticals only for ‘cf.’ and its flipside, ‘but cf’. The ALWD Manual, though, ‘strongly encourages’ including explanatory parentheticals whenever a signal of any sort is used.

See is Pandora’s box. It means, says the Bluebook, that the ‘[c]ited authority clearly supports the proposition’ but does not state it directly. That is, the point does not originate with, but is supported by the authority cited. The University of Chicago Law Review Style Sheet (the Maroonbook) suggests using see ‘if the cited authority is described or paraphrased by the citing text, or if the cited authority provides indirect but obvious support for the citing text’.

‘See’ and its cite can hardly be avoided if the writer is drawing an inference from another’s observation or idea. But it need not – indeed, should not – be reflexively accompanied by explanation.

Ideally, the author’s own text has made clear why the reader might want to consult the cited source. Here, for example, is text that makes clear ‘why see’ the cited source.

A citation preceded by ‘see also’ typically comes after a citation to the primary source. It’s just like ‘see’ except that the reader already has all he needs: direct authority.

The writer should use the footnote to inform the reader of the source, not of her search for the source and all its resulting booty.

Like the apocryphal 2:1 text-to-footnote rule, ‘eg.’ has accumulated usage myths of its own. A contributor to Law & Contemporary Problems recently asked whether the journal follows ‘the traditional three examples’ after an eg. signal. The answer: One will suffice.

Then there’s ‘cf,’ the only signal of support for which the Bluebook still ‘strongly recommends’ explanatory parentheticals. ‘Cf,’ or ‘compare’, unlike ‘compare ... with’, signals authority that ‘supports a proposition different from the main proposition but sufficiently analogous to lend support’. A writer wishing in all honesty to reveal and differentiate another’s approach or opinion on a matter from her own might make fair use of ‘cf’.

‘Show me someone who can explain the difference between but see and but cf and I’ll show you a world-class master of utterly useless distinctions’. The distinction does appear useless. There is one, of course: ‘but see’ has to do with direct contradiction; ‘but cf’ has to do with a contradictory source, one not directly so, but contrarily analogous – a differentiation that belongs in Through the Looking Glass. In any argument, acknowledging but minimising articulation of the opponent’s point of view is wise. A mere signal and cite is about as minimal as this acknowledgement can get.

All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last. But from the standpoint of citing authoritative support, life below the line will be a breeze.

This does not alleviate the heft of the explanatory footnote, though, which then as now – ought to follow a rule of reason.

A rational approach to footnotes in academic legal writing might include one or more of these modifications: (1) In the asterisk, or author’s, note, put what’s directly pertinent: the author’s degrees and academic affiliation and any other biographical information that is truly relevant to his or her knowledge of the topic. Acknowledgement of the significant help of others in the article’s coming to fruition should be permitted but moderation urged; (2) Cite to a single source for each fact, observation, or idea that does not originate with the author; (3) Do not provide citations for facts, observations, or ideas that can be easily located and verified – taking, as a starting point, such that can be easily accessed online in a source of sterling repute, like the Encyclopaedia Britannica or Black’s Law Dictionary; (3) Require pincites for direct quotes, only. Pincites are permissible for paraphrase; (4) Absent direct quotes, the development of a single thought in a single paragraph owing its inspiration to a single source needs only one footnote to that source, with a page span, if necessary. There should be no excuse for a chain of ‘ids’; (5) Exercise judgement in the use of signals. Avoid ‘see also’. One source is enough for ‘eg’. Ordinarily ‘see’ should need no explanatory parenthetical, for the reason to see should be made plain in the text; (6) If explanatory notes longer than a sentence or two cannot be avoided altogether all notes should be endnotes; and (7) Provide an annotated list of all sources a reader out to mine the vein of gold might want to see. Keep such lists out of the notes.

At bottom, the message to law-review editors and authors alike is this: Above the line, loosen up; below the line, lighten up. Relieve reader vertigo.

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