More on the Origins of the Footnote Fetish

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2 Responses

  1. Christopher Buccafusco says:

    Nate, I really like your historical argument for the footnote fetish (I am currently sitting in front of English and American editions of Fitzjames Stephen’s Digest of the Law of Evidence). I wonder if there is also a jurisprudential argument to be made following Brian Simpson’s analysis of the decline of the legal treatise. According to Simpson, the idea that the law could and should be organized along the lines of a treatise is a result of jurisprudential notions about the structure of the common law. My sense is that the desire/compulsion to footnote is based in jurisprudential ideas about soveriegn authority in the common law. As these jurisprudential ideas change, so do footnoting practices. For example, the Legal Storytelling movement of the 80s and 90s had very different ideas about authority and judgment, and they produced very different sorts of texts. The footnote is effectively a hypertextual link directing the reader to authority outside of the text and ceding some measure of control over the text’s own authority. Thus, a text (especially a legal text) without footnotes essentially tells the reader that she doesn’t need to look for authority outside of the text. In any event, my guess is that our accounts of footnoting are closely related historically.

  2. Sally Greene says:

    But footnotes in legal discourse often do more than cite everything useful, do they not? Are they not sometimes argumentative, even barbed? (Consider the artful use of “cf.,” for example.) For an expansive history of the footnote, I recommend Anthony Grafton, The Footnote: A Curious History (Harvard 1997).