Blackstone and the Origin of the American Footnote Fetish

footnote1.gifOne of the well-worn complaints about legal writing is that it is over-footnoted. One has only to open the pages of any American law review to see what folks are talking about. Interestingly, however, this does seem to be a peculiarly American phenomena. I read articles in English law journals fairly frequently, and they just don’t have to same footnote fetish as their trans-Atlantic cousins. Most folks I’ve talked to about this blame the student editors. Student editors are ignorant, and so articles get larded with footnotes either (a) to impress the editors into accepting the piece, or (b) because the student editors demand the footnotes to assuage their fear that they are publishing nonsense. (Never mind that these two explanations are not entirely consistent with one another.) For myself, I blame William Blackstone.

BlackstoneC.jpgIn England, legal education centered around the Inns of Court, which provided a set of institutions for training lawyers. In America, in contrast, virtually all lawyers were — for most of our history — either self-educated or apprenticed as clerks in lawyers’ offices where they were encouraged to “read law” on their own time. Sure, there were some law schools, but until the final decades of the 19th century they didn’t matter all that much. An American lawyer learned the law on his own, and his main — indeed often his only — text was Blackstone’s Commentaries on the Laws of England.

commentaries.jpgThe centrality of Blackstone in legal training, however, created a problem. Blackstone provides a not entirely accurate and not particularly technical summary of the law of England as it existed in the mid-18th century. A lot of this legal learning transferred to an American setting, but a lot of it did not. Hence, American lawyers were in the uncomfortable position of not being able to rely on their main legal reference book. They responded by producing annotated, American editions of Blackstone. These editions would lard Blackstone’s text with footnotes to American cases and brief summaries of how American law had divereged from the law that Blackstone expounded.

My theory is that the experience of reading Blackstone lodged deep within the psyche of American lawyers. They came to expect that the real meat of any secondary legal source was to be found in the footnotes. After all, they had learned American law by reading the footnotes to Blackstone. Not surprisingly, when American lawyers finally got around to developing a publishing medium of their own — the law review — they wrote with footnotes as a central element of their style. Thus, when I send my research assistant off to the library to provide documentation for assertions that I know to be correct, I am not simply pandering to the 3Ls sitting on some future articles committee. I am in some sense recapitulating the tortured course of American legal education.

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2 Responses

  1. While the footnotes in Blackstone and his American editors may have made footnotes familiar to American lawyers, I suggest that the extensive use of footnotes in American legal writing arises from two other sources.

    First, the “legal opinion” style of appellate report that spread in the early 19th century required the court to set forth the authority for its decision, often seen as an in-line note. Attorneys tended to model their writing style after the style used by judges – the most salient members of the bar.

    Second, the acceptance of late-19th century idea that the principles of “scientific” law could be inferred from years of judicial opinions meant that judges were looking for those opinions – the sources of authority. The attorneys wrote to satisfy the judges. “Counsellor, do you have any cases to support that argument?” This was an academic concept, so the style spread more as law professors diverged from practitioners.

    It doesn’t take long for the habit of citing authority for everything in briefs to carry over into other writing. Also, the more riding on the writing, the more the author is going to use authority to support those weak words of argument.

    Related, somewhat, is the attitude of the intelligence analyst. With so much unknown and lives riding on the product, the analyst documents everything – each piece of information has its sources, and those sources are clearly documented. This is not so much for the reader’s benefit, but as a discipline for the analyst – to preclude the analyst from exercising dangerous imagination. If you must document a source for every statement, provide authority for every argument, it is difficult to wander off. And when you are stating your own opinions, it is more obvious. (See, e.g., 5 Campbell L. Rev. 119: 334 footnotes in 42 pages.)

  2. Shawn Loura says:

    It is an interesting view of history and origins of American Lawyer’s….

    However today most states require you to go through an acredited law school and become a member of your state bar association aka union and union due’s.

    Seems to me the real threat is the destruction of free enterprise.

    The American Bar Association which can be traced back to the british guild seems at odd when it is viewed to be the moral and yet ethicial guide.

    When you consider the bar supports their own agenda one of which is illegal’s into the us.

    Moral’s are all needed and some levedl of professionalism can be achieved without law school and or being a part of any union as long as you know the law and have morals and have worked under someone else what is the need for any bar?

    I would like to become a constitutional lawyer who has high morals and his own high standerd’s for ethics.

    my focus is free enterprise constitutional taxation vs. unconstitutional taxation, property rights as my focus with a minor focus on gun rights and other issues of vital importance to constitutional law and the values of a republic vs. a democracy.

    Let’s get back to our root’s and live a higher standerd then the A.B.A.