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When I think of footnotes (which is not often), the first thing that comes to mind is a New York Times article which reported that it was supposedly Noel Coward who once complained that encountering a footnote was “like going downstairs to answer the doorbell while making love.” Once you get that image in mind, it’s hard to get it out.
The second thing that comes to mind is Will Stevens’ oft-cited law review note spoofing law review notes: The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975).
The first footnote in that article immediately follows the very first word “The” citing the Oxford English Dictionary. The fourth footnote immediately follows the “the” in the second sentence, citing back to note 1. And so it goes.
Enough. Let’s turn to the serious critiques of footnotes that have appeared over the years from some legal heavyweights includ- ing prominent federal court of appeals judges and two U.S. Supreme Court Justices.
Professor Fred Rodell’s classic article Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936-1937) had this to say:
Then there is this business of footnotes, the flaunted Phi Beta Kappa keys of legal writing, and the pet peeve of everyone who has ever read a law review piece for any other reason than that he was too lazy to look up his own cases. So far as I can make out, there are two distinct types of footnote. There is the explanatory or if-you-didn’t- understand-what-I-said-in-the-text-this-may-help-you type. And there is the probative or if-you’re-from-Missou- ri-just-take-a-look-at-all-this type.
The explanatory footnote is an excuse to let the law review writer 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 in the first place. . . .
It is the probative footnote that is so often made up of nothing but a long list of names of cases that the writer has had some stooge look up and throw together for him.
Notwithstanding Professor Rodell’s plea, neither law review articles nor footnotes disappeared. Indeed, they are being spewed out at what appears to be an ever-increasing rate.
Rodell himself wrote numerous subsequent law review articles1 (sense any irony here?), including Goodbye to Law Reviews – Revisited, 48 Va. L. Rev. 279 (1962), an update of his earlier article in which he ended2:
1
2
Let me wind it up with a personal note. . . . Not so long ago, I published a book; I had spent better than twenty years collecting the stuff for it casually, a couple of years getting it all in order, and one tough year writing it. Though it deals with law, there were none of those phony excrescences called footnotes, and I slaved like a slave (like what else do you slave?) to keep it clean of longiloquent legal language. Indeed, I daresay I could have writ- ten it in half the time had I used the pompous patois of the profession – but this book was meant for anybody to read. Along came a typical law professor to review it in a typical law review; what he said was complimentary;
but the professor clearly felt guilty about praising a book like this. For he added, as though looking over his shoulder, in a sentence I shall forever treasure: “It is to be regretted that the author did not write his work with footnotes and that his style is not in keeping with the depth of study he must have had to pursue to acquire the information necessary to write this book.” Well, fellows, there it is in a nice, neat nutshell. All I can add is this:
-- Ah, scholarship; ah, nuts.
I would cite them but you’re not going to track them down and read them so why bother? Just take my word for it. Unless, of course, you are going to work all of this into your next cocktail party conversation. In that event, better check to be sure that Rodell did actually write some other subsequent law review articles. Risky to trust a single source to be telling the truth.
EDITOR’S NOTE: Ah, there you were, making love, and here I am ringing the doorbell. I insert this footnote at this awkward point to divert you from the flow of the text to comment that the Journal ordinarily does not use footnotes in our content because we are a Journal, but not a scholarly one. Yet this article cries out for dispensation. Oh, in case you wondered, having two footnotes numbered "1" is not a typo, merely an irony.
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