Footnotes

Eugene Volokh laments:

Sent to the editor:

After all, the Constitution is full of “values” and “interests.” It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.

Received from the editor (and note that this is not the Harvard Law Review, with which I had a very good editing experience):

After all, the Constitution is full of "values" and "interests." It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.[fn]

[fn:] See generally U.S. Const.

Noooo! Noooo!

Law reviews and journals tend to obsess about footnoting. The obsession begins in a healthy (for lawyers) fashion, motivated by a desire to check and promote the credibility of the author and thereby the journal. From this starting point the obsession takes a nasty turn. The editors and staff of the law review may begin to believe that every positive assertion, no matter how general or accepted within the legal community, demands a footnote. This seems to be what happened to Prof. Volokh's article. Authors and editors may also decide that sheer volume of footnote content is what gives the article "professionalism" or "credibility." These authors and editors will invest vast amounts of energy in below-the-line text. The body text then tends to come out with an odd, stilted flow of information and argument, while the page overflows with footnote text. Consider in this regard Gil Grantmore, Mark My Words, 3 Green Bag 2d 121 (2000) (poking fun at this habit, nearly the entire text of the article appears within a footnote). It doesn't occur to them that important text should be above the line and unimportant text should be excluded. In both of these cases, participants who think these behaviors go way over the top tend to acquiesce in the face of arguments that they're "expected" even if they're silly.

Meanwhile, skilled writers and scholars receive their 'reads' and lament, "Noooo! Noooo!"

I hope Prof. Volokh says something about this in his upcoming book on academic legal writing.