Footnotes in Delaware Judicial Opinions
posted by Lawrence Cunningham
Casebook editors, including Professor Stephen Bainbridge of UCLA, complain about the prodigious length of recent Delaware corporate law judicial opinions, especially those written by its Chancery Court. As I edit a round of recent cases for my spring course and new edition of my casebook, I add a related complaint: the proliferation of footnote use in Delaware court opinions. This practice tends both to lengthen opinions plus complicate practical tasks facing teachers and editors.
As a practical matter, a style has developed in Delaware over the past decade of inserting case citations and other authorities in sequentially numbered footnotes rather than in textual discussion. This practice mirrors the style traditionally used in scholarly writing and is a sharp departure from the standard practice in judicial opinions and litigation briefs.
For a casebook editor, this is annoying because it requires tracking relevant footnotes separately and then preparing selected footnotes or, for ease of student reading, relocating the relevant case citations from footnotes into bracketed citations within the text.
As to length, it is no longer uncommon to read Delaware corporate law opinions with more than 50 footnotes and a fair number bloat more than 100 footnotes. Many contain meditations on matters remote from the issues the court is required to address. They sometimes present long string cites, increasingly to include scholarly articles and treatises.
These shifts in Delaware judicial practice may reflect a broader phenomenon of recent years: the increasing self-conception of Delaware judges as scholars. Delaware judges are unusual compared to judicial peers in many ways, including their increasing tendency to immerse themselves in academic matters. They chiefly do this by prolific publication of articles in law reviews, participation in academic corporate law conferences and teaching corporate law courses in law schools around the country.
There is some debate about why Delaware judges wish to act so academically and some controversy about whether the mixing of judges with professors risks impairing the objectivity of either. That debate aside, current habits displayed in many Delaware corporate law opinions, in length and style, shows tediousness rather than either a scholarly or even pedantic orientation.
Of course, judges may not care about the relative burdens teachers or editors face in turning opinions into pedagogical materials. But Delaware’s contemporary style certainly exports costs to the legal academy. And the costs can be saved. Delaware opinions are fat mostly because of things that easily can be omitted: excruciatingly detailed fact recitations that can span dozens of pages and scores of footnotes addressing tertiary matters of academic curiosity at best.