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.
December 9, 2008 at 4:35 pm
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Responses (8)
TRE - December 9, 2008 at 8:46 pm
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.
A.J. Sutter - December 9, 2008 at 10:26 pm
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.
Josh James - December 10, 2008 at 12:59 am
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.
Orin Kerr - December 10, 2008 at 3:08 am
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.
A.J. Sutter - December 10, 2008 at 11:45 am
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?
Clerk - December 11, 2008 at 3:06 pm
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).
Orin Kerr - December 12, 2008 at 11:29 am
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.
A.J. Sutter - December 12, 2008 at 10:51 pm
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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