The Law Review Footnote Fetish Revisited (Again)
posted by Nate Oman
I have offered before various theories for the footnote fetish among American law reviews. Today, I came across the following passage written by A.W.B. Simpson:
This is the phenomenon of laws of citation, and it has really struck the common law only in the last century. It seems to me to be a symptom of the breakdown of a system of customary or traditional law. For the only function served by rules telling lawyers how to identify correct propositions of law is to secure acceptance of a corpus of ideas as constitution the law. If agreement and consensus actually exit, no such rules are needed, and if it is lacking to any marked degree it seems highly unlikely that such rules, which are basically anti-rational, will be capable of producing it. It is therefore not surprising to find that today, when there is great interest in the formulation of source rules in the common law world, the law is less settled and predictable it was in the past when nobody troubled about such matters. IN a sense this is obvious. There is only a felt need for authority for legal propositions when there is some doubt as whether it is correct or not; in a world in which all propositions require support from authority, there must be widespread doubt. (A.W.B. Simpson, “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence, 2d ser. A.W.B. Simpson ed. (OUP 1973) 98-99)
Simpson is talking about the rise of rules governing the concept of precedent and legal authority, but perhaps there is an analogous point to be made about American law journals. Compared to the UK, I would submit that American legal thinking is much more fragmented. In part this is because we have at least 51 semi-autonomous legal systems with which to cope, and partly this is because the American legal academy is more riven with methodological and ideological disagreement than is the legal intelligentsia in the UK. Hence, American scholars — and law review editors — suffer from the anxiety about authority that Simpson identifies as the reason for the rise of legal citations.
March 7, 2008 at 2:45 pm
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Responses (3)
newlawprof - March 7, 2008 at 4:17 pm
I once heard that some journals reject articles if the footnote/text ratio is too low. Is this still true? If so, what is the target ratio?
shg - March 8, 2008 at 11:10 am
I’ve made a habit of omitting citations to black letter law in appellate briefs just to play with my adversaries. Since they can’t stand the fact that I’ve omitted obvious string cites, they include them, and by doing so support my assertion. No court as yet has taken issue with my practice.
Footnoting the obvious is Pavolovian at this point, and your passage is quite correct. If there is no dispute on the state of the law, then why feel compelled to “prove” the obvious? Because that’s the way they are told it’s supposed to be.
David - March 9, 2008 at 10:22 am
Perhaps its less about pervasive anxiety and more about the underlying egalitarian nature of the footnote. Consistent citation (or less generously, the footnote fetish) starts from the assumption that any reader, whether experienced practitioner, pro se litigant, or a non-lawyer member of the general public, can pick up an article and learn more about (or simply where to find) support for even commonly recognized black letter law.
Perhaps this is less necessary in most instances legal practice, but it is and should be a lasting element of legal scholarship.
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