Page 95 - ACTL Journal_Sum24

If only we could just discipline ourselves to read an opinion without reading the footnotes the first time through!
It has sometimes been suggested that an appendix or endnotes are the solution to the problems that footnotes raise. Judge Becker shot down that idea:
Moreover, to the extent that judges share footnote-like material with us in the form of an appendix, as some judg- es are now doing, they make perhaps the best case for using footnotes. Footnotes that appear in an appendix ren- der opinions extremely difficult to read. They are, in essence, endnotes. Reading endnotes involves fingers, neck and mouth – fingers for turning pages, mouth for licking fingers, and neck for head-twisting – an effort much more cumbersome than the head-bobbing that footnotes require. In this most ungraceful maneuver, endnotes require readers to keep one hand locked on the text while using the other hand to flip to the appropriate endnote. Once the endnote is located, the unhappy reader must peer around the intervening pages to reconcile note and text. Given the annoyance and physical strain, the reader is apt to avoid the endnotes all together.
So, where does this all come out? I suggest a few rules, to be flexibly applied:
1. If it’s important, it goes into the text. Don’t think there can be much debate about that one.
2. If it’s unimportant, it gets cut completely. Maybe it goes into a footnote if there is something quite excellent about it. This should be a rare exception.
3. If it is not important but cannot be called unimportant, then there should be a presumption that it gets cut. But if you really want to put it into a footnote, okay, what the hell.
4. All footnotes should be numbered 4.5 6
Dennis R. Suplee Philadelphia, PA
5 Except in this article, in which the most important footnote is numbered 5, which is odd.
6 The author sincerely credits and thanks Abigail T. Burton for her legal research for all of the references and
footnotes in this article, not to mention (yet here we go) the ones the Editor has elected to excise.
SUMMER 2024 JOURNAL 94