Page 94 - ACTL Journal_Sum24

Justice Stephen G. Breyer went through his freshman year on the Court without writing a footnote. This was scarcely an oversight. Breyer started shunning footnotes because of advice he received upon his first judicial appointment to the Federal appeals court in Boston from Justice Arthur Goldberg, for whom he clerked. Goldberg simply said, “Don’t use footnotes.”
93
JOURNAL
A 1990 New York Times article reported that the record for footnotes in a single law review article is 4,824: Jacobs’ An Analysis of Section 16 of the Securities Exchange Act of 1934, a piece that also set a record for consecutive infras (16). The longest footnote is found in Sciarrino, Free Exercise in the Defamation Forest: Are “New Religions” Lost?, which consumes five solid pages of agate type. The highest percentage of ids since Freud (444 out of 574 footnotes) is in Buchanan, Comparative Analysis of Name and Likeness Rights in the United States and England.
Kenneth Geller combed the 308 majority opinions, dissents, and concurrences issued in the 1989-90 Supreme Court term and the 1,797 included footnotes. He found that the liberal bloc – Justices Stevens, Brennan, Blackmun and Marshall – wrote the most footnotes: 572, 491, 282 and 133, respectively. Conversely, the most conservative members – Justices O’Connor, Kennedy, Rehnquist and Scalia – wrote the fewest: 26, 42, 56 and 89, respectively. And darned if Justice White, often a swing vote, wasn’t nestled in between, at 106.
Maybe a fluke. Or maybe conservative judges see the world and legal issues as rather straightforward whereas liberal judges see them as quite nuanced and feel obliged to explain why.
It was bound to happen. A defense of the footnote. And it came from a formidable legal intellect, Judge Edward R. Becker of the Third Circuit, in an essay entitled, aptly enough, In Praise of Footnotes, 74 Wash. U. L. Q. 1 (1996), a thirteen-page article with forty footnotes.
After citing the anti-footnote views of Justice Breyer and Judges Posner and Mikva, the Judge noted (in footnote 4 of course) that he could find only one brief and humorous article supporting his own pro-footnote view. Like any first-rate advocate, early on the Judge took note of perhaps his best point: “[A] perusal of recent state and federal reporters, including the United States Supreme Court Reports, reveals no paucity of footnotes, suggesting that the message of the footnote bashers has not taken hold.” Id. at 1-2. Judge Becker’s point: If the message has not taken hold in spite of such stellar advocates, it cannot be meritorious.
The Judge continued:
[T]he footnotephobes seem to have missed the essential point that judges are professional writers and that well-conceived and well-crafted footnotes are valuable tools of their trade. Because the time seems ripe for a dissenting statement, I write to praise footnotes, rather than to bury them.
The Judge observed, “The body of the opinion transmits the primary message while footnotes deliver secondary messages.” He advanced that a footnote is an ideal place to explain the court’s resolution of the parties’ peripheral contentions. They are also useful to elaborate the reasoning stated succinctly in the body of the opinion. Footnotes may include a more complete explana- tion of a point, citations to additional authority (including secondary sources), or discussion of arguments or authority raised by the parties. Footnotes, the Judge argued, are valuable not only to the litigants and counsel, but are often instructive to scholars, lawyers, and judges in future cases, because they refine and enrich the legal discourse. The Judge conceded that the content of such footnotes could be located in the text, but when they are, "they often make the opinion harder to read.”
As to the criticism that footnotes might change the law, Judge Becker saw notes like number 4 in Carolene Products as “play[ing] an important role in our common law system by planting the seeds for major developments in legal principles.” Id. at 6.
Likewise, Judge Becker dismissed the criticism that footnotes make an opinion less readable:
Contrary to conventional wisdom, the footnote improves judicial style. By relegating to footnotes matters that interrupt the flow of the text, footnotes enhance rather than detract from the opinion’s readability. The footnote provides a rhetorical hierarchy that streamlines a text which compactly resolves the case. Citations, statutory text, details from legislative history, references to the appendix or record, and factual background, including trial testimony, are all made readily available without getting in the way. . . .
Footnote critics overlook the fact that a properly constructed opinion, drafted with intelligent attention to what belongs in the text and what does not, allows the reader to read the opinion sans footnotes.