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Blackstone and the Origin of the American Footnote Fetish

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  1. While the footnotes in Blackstone and his American editors may have made footnotes familiar to American lawyers, I suggest that the extensive use of footnotes in American legal writing arises from two other sources.

    First, the “legal opinion” style of appellate report that spread in the early 19th century required the court to set forth the authority for its decision, often seen as an in-line note. Attorneys tended to model their writing style after the style used by judges – the most salient members of the bar.

    Second, the acceptance of late-19th century idea that the principles of “scientific” law could be inferred from years of judicial opinions meant that judges were looking for those opinions – the sources of authority. The attorneys wrote to satisfy the judges. “Counsellor, do you have any cases to support that argument?” This was an academic concept, so the style spread more as law professors diverged from practitioners.

    It doesn’t take long for the habit of citing authority for everything in briefs to carry over into other writing. Also, the more riding on the writing, the more the author is going to use authority to support those weak words of argument.

    Related, somewhat, is the attitude of the intelligence analyst. With so much unknown and lives riding on the product, the analyst documents everything – each piece of information has its sources, and those sources are clearly documented. This is not so much for the reader’s benefit, but as a discipline for the analyst – to preclude the analyst from exercising dangerous imagination. If you must document a source for every statement, provide authority for every argument, it is difficult to wander off. And when you are stating your own opinions, it is more obvious. (See, e.g., 5 Campbell L. Rev. 119: 334 footnotes in 42 pages.)

  2. Shawn Loura says:

    It is an interesting view of history and origins of American Lawyer’s….

    However today most states require you to go through an acredited law school and become a member of your state bar association aka union and union due’s.

    Seems to me the real threat is the destruction of free enterprise.

    The American Bar Association which can be traced back to the british guild seems at odd when it is viewed to be the moral and yet ethicial guide.

    When you consider the bar supports their own agenda one of which is illegal’s into the us.

    Moral’s are all needed and some levedl of professionalism can be achieved without law school and or being a part of any union as long as you know the law and have morals and have worked under someone else what is the need for any bar?

    I would like to become a constitutional lawyer who has high morals and his own high standerd’s for ethics.

    my focus is free enterprise constitutional taxation vs. unconstitutional taxation, property rights as my focus with a minor focus on gun rights and other issues of vital importance to constitutional law and the values of a republic vs. a democracy.

    Let’s get back to our root’s and live a higher standerd then the A.B.A.

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