Blackstone and the Origin of the American Footnote Fetish
One 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.
In 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.
The 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.