Court Review: Volume 38, Issue 2 - Clearing the Cobwebs from Judicial Opinions

Ipropose that judges, in their opinions, put citations in footnotes and generally abstain from using substantive footnotes. And I propose that courts adopt a rule that brief writers may single-space footnotes if they contain only citations (or parentheticals coupled with citations) but must double space all footnotes that contain sentences. These simple proposals, if widely adopted, would promote better writing within the legal profession by encouraging legal writers to: • Use shorter sentences. • Compose paragraphs that are more coherent and forceful. • Lead their readers to focus on ideas, not numbers. • Lay bare poor writing and poor thinking. • Discuss the controlling caselaw more thoroughly. • Use string citations with impunity. Before going any further, I must point out that I’m not a proponent of footnotes generally.

For a decade I edited the only U.S. law journal that prohibits footnotes—well, substantive footnotes. So please don’t judge my proposal based on your feelings about footnotes generally. I dislike them as much as anyone reading this journal. But there’s a world of difference between reference notes and so-called “talking” footnotes.

I’m championing notes largely for bibliographic material such as volume and page numbers.