Footnotes as Scholarly Crafting

The playwright Noël Coward famously complained that having to read a footnote is like having to go downstairs to answer the door while in the midst of making love. 1 Frustration at the interruption caused by footnotes has been voiced also by legal scholars.Abner Mikva called them 'an abomination', 2 and Justice Michael delivered the short verdict: 'I abhor footnotes' . 3 Lori McPherson, making the ultimate appeal of the despairing, articulated the feeling underlying all these condemnations: 'For the love of God and all that's holy, why don't we just put what we are saying in the text of the article?' 4 Jack M. Balkin drew out the conclusion of that rhetorical question: footnotes are 'inconsequential, inessential, an intellectual bauble that one could, in theory, do without', which is why they are 'excluded, marginalised, banished to the bottom of the page or the end of the book' . 5I could go on. 6 Although much of the debate on footnotes concerns style and how best to support or explain a point made in the text 'without disrupting the rhythm and flow of the text itself ' , 7 to omit that the above-listed remarks pertain specifically to the practice of the US legal profession would be an act of misquoting.The ample volume of footnotes in their law review articles and judicial opinions makes them 'the worst offenders ' . 8 Of course, 'a footnote that merely cites a case or other writing' is, Mikva says, 'the easiest to defend-and the least troublesome' , 9 since they convey useful information and are the author's pledge to have checked the accuracy of their source-both the transcription and the legal context. 10His frustration, like that of the other authors mentioned, is with the evolution of the substantive footnote, an altogether different species that other scholars and lawyers cultivate with verve.The purpose of footnotes and their content in the legal profession is thus contested and far from obvious.