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Footnotes in Delaware Judicial Opinions

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8 Responses

  1. TRE says:

    Heh. This is just an extreme version of a symptom I’ve noticed in many many casebooks and judicial opinions from all over the country.

  2. A.J. Sutter says:

    I understand the practical problem you face as an editor. But surely even you must see it’s a bit ironic for professors to complain about judges using them as a role model.

    Maybe the Delaware situation creates a good occasion to revisit the footnoting conventions of law scholarship itself. As is well known, they’re unique, to say the least. But as you’re now discovering, they create many “costs” for the reader. Digressive legal footnotes abound in (i) “tertiary matters of academic curiosity at best”, (ii) examples or other matters that help to further the argument and should have been worked into the body of the paper, and (iii) vaguely-related matters that the author is so fascinated by (or thinks display such erudition) that he or she can’t bear to edit them out. For the most part, other fields in the social sciences (to say nothing of the physical sciences) seem relatively immune to these temptations. Why is that?

    While we’re revisiting conventions, how about including a list of references in any paper longer than, say, 20 pages? (though that number is arbitrary and arguably should be shorter, even 0). Are law profs so confident that readers will track each and every footnote so closely, and keep a runnng list of sources cited, that a list of references is really unnecessary? If so, why be shocked when your judicial readership emulates your style, after such an investment of attention? If you’re not so condfident, why be so rude to the reader? The reason can’t be that student editors run the law journals: they may run them, but they don’t own them. And room for any extra pages added by the reference list could easily be made by exercising more self-control in the footnotes.

  3. Josh James says:

    Hang in there professor. I’m looking forward to corporations next semester. If you’re not there the first day, I’ll know the footnotes got you.

  4. Orin Kerr says:

    As a Delawarean, I apologize for the conduct of my fellow First-Staters. I agree: Citations in footnotes is a drag.

    I think the difficulty with A.J. Sutter’s comparison to law review articles is that there is an easy solution for readers encountering law review footnotes: Just don’t read them. If it’s important, it’s in the main text, so just ignore the footnotes. You can’t do that in judicial opinions, however, as the opinion hands down the law and the footnotes count as authority as much as the main text.

  5. A.J. Sutter says:

    Orin’s point about footnotes being authoritative is a good one if you’re a practicing attorney — but practitioners read the footnotes anyway, and whether the case cites are in the main text or in the footnotes isn’t such a big deal. As for casebook editors, they already routinely omit big chunks of the authoritative portions of cases, so the decision of whether or not to omit footnotes is nothing new. I agree that case cites being in the notes of course makes it harder for an editor to omit the footnotes he or she might otherwise have liked like to.

    But it sounds like part of Lawrence’s (do you go by Lawrence or Larry?) complaint is that the opinions also contain lots of superfluous stuff that a casebook editor will omit anyway, such as “meditations on matters remote from the issues the court is required to address” and “footnotes addressing tertiary matters of academic curiosity at best”. These too apparently result from the judges’ adopting a more academic style. So the advice to ignore the footnotes in academic articles begs the question, why do profs dump such stuff into the articles to begin with?

  6. Clerk says:

    As a clerk and a reader of judicial opinions, I actually favor the footnote citation style. As Garner advocated, it makes the actual meat of the opinion hang together better, while still birddogging relevant authority for those who later use the opinion.

    It may be a drag for later editors, but it is a boon to those reading the opinion to find its holding, analysis, and related cases.

    As for substantive footnotes, you’re right. Its either important enough for the text or its not important enough at all (also a point made by Garner).

  7. Orin Kerr says:

    A.J.,

    Blog comments are a lot like footnotes: They appear at the bottom, few people read them, and they offer general commentary or tangentially related points. So I think professors drop footnotes for pretty much the same reason people write blog comments.

  8. A.J. Sutter says:

    Orin – The late Prof. Dr. Rudolf Schlesinger once interrupted the flow of his lecture to tell us, “Always read the footnotes. Someday the livelihood of you and your family may depend on it.” He wasn`t speaking of law journal articles, apparently, though the habit he taught is hard to break, once formed. And I, for one, often find the comments to blog posts (at better blogs, like this one) very much on point and illuminating, including many of your own.

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