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Decades later, Judge Abner J. Mikva of the D.C. Circuit noted “The use of footnotes in legal writing has not been contained. Instead, it has spread like a fungus and has magnified all of the shortcomings of legal writing so deftly denounced by Rodell.” He continued:
When reading a footnoted opinion, one’s eyes are constantly moving from text to footnotes and back again. The distraction and time waste are substantial. If footnotes were a rational form of communication, Darwinian selec- tion would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane.
...
Many legalists insist that footnotes are part of the opinion and entitled to full faith and credit; others insist that they are just footnotes. What is clear is that obiter dictum footnotes are used with reckless abandon and frequent- ly overwhelm the text. All too often, yesterday’s obiter dictum becomes tomorrow’s law of the land.
Thus launched, the Judge moved on to a discussion of certain footnotes that, with the passage of time, have changed the law, including, for example, footnote 4 in United States v. Carolene Products, 304 U.S. 144 (1938), holding that strict scrutiny will be given to statutes affecting “discrete and insular minorities.”
The upshot of all of this angst was Judge Mikva’s decision to quit cold turkey and stop using footnotes altogether. As he explained, this was not easy. “When the time comes to edit and revise the first draft, it is very hard to decide what to keep and what to throw away. Gone is the comforting option of dropping the marginal point to a footnote. It is either up or out.”3
Reminiscent of Bob Seger’s lament in Against the Wind “Well, those drifter’s days are past me now. I’ve got so much more to think about. Deadlines and commitments. What to leave in, what to leave out.” No room for footnotes in a folksong.
Judge Mikva concluded:
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). [Footnote 4 is the famous one in United States v.
Carolene Products, 304 U.S. 144.] I feel very guilty about the ones that I skip over. . . .
The Mikva article has only one footnote, numbered 4, of course. It reads “Just what did you expect to find?”
3
EDITOR’S NOTE: I interrupt once again to advise that Dennis’ draft text is loaded, if not larded with refer- ences and citations, most of which would make lovely footnotes, but I have excised them in keeping with the Journal’s less than scholarly style and to keep this article within our page limits. If you want the refer- ences, call Dennis.
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