More on the Origins of the Footnote Fetish
posted by Nate Oman
A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps’s Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed — of course — his footnotes:
The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.
My claim is that law review editors inherited from this tradition of Americanizing English treatises the same “solicitude to insert every thing which could be deemed useful” no matter how much it might “swell[] the notes greatly beyond what was originally expected and intended”.
September 25, 2006 at 2:56 pm
Posted in: History of Law, Law School (Scholarship)
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Responses (2)
Christopher Buccafusco - September 26, 2006 at 9:53 am
Nate, I really like your historical argument for the footnote fetish (I am currently sitting in front of English and American editions of Fitzjames Stephen’s Digest of the Law of Evidence). I wonder if there is also a jurisprudential argument to be made following Brian Simpson’s analysis of the decline of the legal treatise. According to Simpson, the idea that the law could and should be organized along the lines of a treatise is a result of jurisprudential notions about the structure of the common law. My sense is that the desire/compulsion to footnote is based in jurisprudential ideas about soveriegn authority in the common law. As these jurisprudential ideas change, so do footnoting practices. For example, the Legal Storytelling movement of the 80s and 90s had very different ideas about authority and judgment, and they produced very different sorts of texts. The footnote is effectively a hypertextual link directing the reader to authority outside of the text and ceding some measure of control over the text’s own authority. Thus, a text (especially a legal text) without footnotes essentially tells the reader that she doesn’t need to look for authority outside of the text. In any event, my guess is that our accounts of footnoting are closely related historically.
Sally Greene - September 26, 2006 at 8:48 pm
But footnotes in legal discourse often do more than cite everything useful, do they not? Are they not sometimes argumentative, even barbed? (Consider the artful use of “cf.,” for example.) For an expansive history of the footnote, I recommend Anthony Grafton, The Footnote: A Curious History (Harvard 1997).
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