The Law Review Footnote Fetish Revisited (Again)
This is the phenomenon of laws of citation, and it has really struck the common law only in the last century. It seems to me to be a symptom of the breakdown of a system of customary or traditional law. For the only function served by rules telling lawyers how to identify correct propositions of law is to secure acceptance of a corpus of ideas as constitution the law. If agreement and consensus actually exit, no such rules are needed, and if it is lacking to any marked degree it seems highly unlikely that such rules, which are basically anti-rational, will be capable of producing it. It is therefore not surprising to find that today, when there is great interest in the formulation of source rules in the common law world, the law is less settled and predictable it was in the past when nobody troubled about such matters. IN a sense this is obvious. There is only a felt need for authority for legal propositions when there is some doubt as whether it is correct or not; in a world in which all propositions require support from authority, there must be widespread doubt. (A.W.B. Simpson, “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence, 2d ser. A.W.B. Simpson ed. (OUP 1973) 98-99)
Simpson is talking about the rise of rules governing the concept of precedent and legal authority, but perhaps there is an analogous point to be made about American law journals. Compared to the UK, I would submit that American legal thinking is much more fragmented. In part this is because we have at least 51 semi-autonomous legal systems with which to cope, and partly this is because the American legal academy is more riven with methodological and ideological disagreement than is the legal intelligentsia in the UK. Hence, American scholars — and law review editors — suffer from the anxiety about authority that Simpson identifies as the reason for the rise of legal citations.