Page 93 - ACTL Journal_Sum24

Judge Richard A. Posner of the Seventh Circuit included a broadside against footnotes in his 1985 opus The Federal Courts: Crisis and Reform:
One symptom of the prolixity of the modern federal judicial opinion is the heavy use of footnotes. . . . To footnotes that merely cite cases or other authorities the only objection is that they are unnecessary. . . . The textual footnote, so common in contemporary opinion writing, is open to two graver objections. First, it re- tards reading speed and comprehension. The reason for this is not just that the eye has to glance to the bottom of the page, read what is written there, and then return to the place where the interruption occurred; it is also that the material in the footnote will not flow easily from the sentence from which the footnote was dropped4 and into the following sentence – otherwise the writer would not have placed the material in a footnote. The interruption is to the mind as well as the eye. Second, a lot of bad law is made in footnotes. The court’s hold- ings are authoritative wherever they appear on the page; but often the opinion writer will have placed material in a footnote because he was not quite sure it was right and yet it seemed in some way necessary in order to complete his argument, or at least supportive of it.
Judge Posner, who also forswore the use of footnotes in his opinions, blasted the use of footnotes by judges for the purpose of sniping at their judicial colleagues:
Another and increasingly common manifestation of excessive judicial self-assertion is the abuse – often shrill, sometimes nasty – of one’s colleagues. Such criticisms figure ever more prominently not only in dissenting and concurring opinions but in majority opinions as well, now that it is the fashion for the author of the majority opinion, usually in footnotes, to attack the dissenting opinion (and sometimes even a concurring opinion). Judicial indignation fails as effective rhetoric for three reasons. The first is the jejune and unimaginative vocab- ulary of abuse in which judges express themselves. The same well-worn epithets—“result-oriented,” “unprin- cipled,” “disingenuous,” “activist,” “unreasoned,” “glib,” “novel and unjustified,” “unilluminating,” “absurd,” “apocalyptic,” “rhetorical,” “unjustified,” and so on—appear over and over again, with ever-diminishing impact. Second, the rhetoric of judicial abuse is in many cases opportunistic: the first to cry “activist” is usually an activist; the unprincipled cries “unprincipled.” Some dissenting opinions, indeed, invite the following para- phrase: “My learned brethren have misstated the facts, discarded precedent, twisted the language and ignored the purpose of the statute, thrown logic to the winds, quoted out of context, and disregarded the promptings of common sense. They have used all the techniques of judicial willfulness; now watch a real master use them!” Third, readers are not interested in the degree to which one judge has been upset by another judge, and probably think the passion in judicial opinions feigned, as indeed it often is.
Judges’ abuse of each other is institutionally irresponsible.
In 1986 the legendary Milton Handler published The Supreme Court’s Footnote Addiction, the title of which tells you all you need to know about the author’s views. Handler posited: “How many readers really believe that the footnotes were written by the Justice to whom the authorship of the opinion is attributed or that an overworked Justice has had the time, the inclination or the patience to read the countless references that are cited?”
4 EDITOR’S NOTE: The content that follows was in the text in Dennis’ draft, but since it is a total digression it really belongs in a footnote, to which I have relegated it.
The original draft of this block quotation read “will not flow easily from the sentence from which the foot- note was drooped.” Suggesting that you drop a footnote, and that the footnote then droops. I was tempted not to correct such an excellent typo.
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