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For any new law review or law journal (law review) staff member, one of the first things you learn is how to properly write and edit footnotes.  Staff members spend so much of their time editing and writing footnotes that they often forget to ask why they need twice as many footnotes as text.  Footnotes exist to allow “the interested reader to test the conclusions of the writer and to verify the source of a challengeable statement.”[1]   The creation of the 2:1 footnote ratio began when law professors, trying to get published as frequently as possible in order to gain tenure, realized that student-editors were editing out their creativity in order to force all pieces into the same style.[2]  This caused authors to express themselves in their footnotes, a practice which naturally bulked up the footnote section.[3]    Additionally, the strong competition among law reviews for lead articles (excluding only law reviews of top tier law schools) combined with the pressure editors are under to fill each issue with a preselected number of pages, helped create a “longer the better” mentality, which contributed to today’s lengthy footnotes.[4]

This type of “quantity over quality” is the exact opposite of how law students learn to write in other parts of their legal education.  Law students are taught when writing court and firm memoranda to be succinct, clear, and concise because their audience is extremely busy and if they don’t get to the point quickly their writing will be largely unread and ignored.  So, why is brevity so scorned in the footnotes of law reviews? Sure, legal memoranda and law review articles serve a completely different function, but the 2:1 ratio of footnotes to text as the minimum is not only inflexible, but excessive.  One justification is that footnotes are designed to help those using law review articles in their academic research and the more footnotes there are the more helpful it is to said academics.  Another is that it demonstrates how well researched and substantiated the piece is.  So are lengthy footnotes about credibility and assisting our fellow academics? Perhaps, but a hard and fast 2:1 ratio goes beyond that when authors are simply adding anything and everything even remotely relevant to meet it.  This “longer the better” attitude encourages lazy writing and fills pieces with fluff.  Not to say that there aren’t pieces with lengthy and quality footnotes, but I’d argue that is the exception.

An article published by the University of Miami Law Review summed this issue up quite well:

The conventional assumption is that authors carefully read the material they cite; however, the addiction to density renders this reckoning at best dubious, and in reality, ridiculous.  Frequent references to books and treatises could reflect scholarship, but are more likely to constitute blatant footnote padding and perhaps a form of plagiarism.[5]

Another justification for lengthy footnotes is that it fills in the gaps for readers, especially non-lawyers, who need more depth to fully understand the issue, however, there is very little to suggest such persons are actually reading law reviews.  Even sophisticated members of the legal community are likely not reading them and in fact they seem to be only helpful for other law students to write their own articles and law professors seeking success through publication.  Law reviews have long been criticized for their content and format, as far back as the famous essay entitled “Goodbye to Law Reviews” by Yale law professor Fred Rodell in 1936, in which he noted “[t]here are two things wrong with almost all legal writing.  One is its style.  The other is its content.”[6] Rodell’s essay includes some pointed criticism of footnotes as well, stating, “The idea seems to be that a man can not be trusted to make a straight statement unless he take his readers by the paw and leads them to chapter and verse…In any case, the footnote foible breeds nothing but sloppy writing, and bad eyes.”[7]

Modern practitioners seem to agree with him, a 2013 survey of the legal community’s thoughts on law reviews found that criticisms of the current system included that the student-editing process increases the number and length of footnotes, which in turn decreases the likelihood that judges and lawyers will read them.[8]  In addition, that law reviews adhere too closely to Bluebook requirements, causing them to require citations to even the most basic facts and as a result it “stifles creativity and originality and encourages the piling on of footnotes that contain meaningless minutiae.”[9]  Ultimately, this footnote-heavy style of writing causes law students, who should be perfecting and advancing their writing ability during law school, to regress in their writing to a level where more is better.

 

Notes:

[1] Frost, The Use of Citations in Literary Research: A Preliminary Classification of Citation Functions, 49 Libr. Q. 399, 399 (1979).

[2] Arthur Austin, Footnote Skulduggery and Other Bad Habits, 44 U. Miami L. R. 1009, 1012-15 (1990).

[3] Id.

[4] Id. at 1015.

[5] Id. at 1017-18.

[6] Fred Rodell, Goodbye to Law Reviews, 23 VA. L. Rev. 38, 38 (1936); Adam Liptak, The Lackluster Reviews that Lawyers Love to Hate, N.Y. Times (Oct. 21, 2013), http://www.nytimes.com/2013/10/22/us/law-scholarships-lackluster-reviews.html?_r=0.

[7] Rodell, supra note 6, at 41.

[8] Richard A. Wise et. al., Do Law Reviews Need Reform? A Survey of Law Professors, Student Editors, Attorneys, and Judges, 59 Loy. L. Rev. 1, 17; Liptak, supra note 6.

[9] Wise, supra note 8, at 17.