December 2001

Are Citations on the Way Down? The Case Against Footnotes

by Helen A. Anderson

I don’t usually obsess about citation form. I tend to think that the content of a legal argument is more important than, say, the proper abbreviation of words such as "Pacific" or "hospital" when they appear in case names. But one aspect of citation has caught my attention lately — whether to put citations in footnotes or in the main text.

It used to be that citations in briefs, opinions and legal memoranda would be in the main text, while citations in law review or other journal articles would appear in footnotes. Recently, however, a movement to put all citations in footnotes has claimed many converts among the judiciary and the bar — though there is significant opposition to this trend as well. On July 8, The New York Times featured a front-page article on the footnote controversy, noting that many state court judges now use only footnote citations, and spotlighting the role of legal writing guru Bryan Garner in the footnote movement.

Our state has been caught up in this movement. A significant number of Washington Court of Appeals’ opinions now contain no citations, and very few case names, in the main text. Full citations are restricted to footnotes. Most Washington lawyers have probably shrugged off this development and continued to cite in the way they were taught years ago in law school. But each year I have a new crop of law students eager to evade page limits through creative use of footnotes, and resistant to the crusty old rules of citation. What do I tell these students? After a knee-jerk reaction, followed by reflection and rationalization, I have concluded that citations belong in the main text.

When citations are included within the main text, it is easier for the reader to see what authority supports the argument. The reader can then better assess the argument itself. Legal argument depends as much on authority as on logic. Rather than interrupting the flow of argument, citations show the premises. An argument with footnoted authorities, on the other hand, does not flow smoothly — the reader is forced to interrupt the reading of the main text to consult the notes. Finally, the banishment of legal authority to footnotes sends a strange message about the role of authority in the law.

First, several disclaimers. I see no relationship between quality of legal reasoning and the use of footnotes for citation. I have seen both brilliant and incomprehensible opinions in the law-review style, as well as the traditional style. Nor do I have a fanatical wish to banish all footnotes from opinions. Footnotes are properly used when dealing with a truly tangential matter, to explain why an issue will not be addressed, or to set forth a long quotation from the record or a statute. A footnote can also be the right place for a string cite (e.g., a list of cases or statutes from all 50 states) as long as you summarize the string in the text.1

Many appellate judges appear to have become converts to Garner’s approach — banish the citations and let the argument proceed uninterrupted! Garner is the author of numerous articles and books, including A Dictionary of Modern Legal Usage (Oxford University Press, 2d ed. 1995) and The Winning Brief (Oxford University Press 1999). He recently argued in favor of footnotes in his otherwise excellent Legal Writing in Plain English 77-81 (University of Chicago Press 2001). Garner maintains that citations clutter up the text and make it practically unreadable. Although I usually agree with him on legal writing, we must part ways on the matter of footnotes.

The traditional style of including citations within the text often seems ridiculous to new law students, as do the obsessive-compulsive Bluebook rules of citation format. It is true that the citations clutter the text with strings of numbers and gibberish abbreviations, but lawyers quickly learn to skim over these cites and pull from them certain vital information: the year of the opinion, the particular court, and sometimes the kind of case (civil or criminal, in rem, etc.). This information tells the reader something about the authority for the argument — how recent are these cases, and from what court? The cite also tells the reader whether the authority is persuasive or binding. The cite conveys all this information in shorthand.

Certainly the traditional style can be abused with tedious string cites and excessive quotation. But the fault there is with the individual writer, not the style of citation.

The law-review style requires that all citations be placed in a footnote. Case names can appear in the main text, but the name is then severed from the citation. It is true that with this style the text appears to flow free, unimpeded by the strings of citation code. But this free flow of text is an illusion; the serious legal reader will never simply glide through it to the end. Most lawyers will need to interrupt their reading to see what authority underpins the reasoning.

Footnote citations pose special difficulties in online research, where footnotes sometimes become endnotes online. It is a challenge to scroll to the end, find the appropriate endnote, and then return to the main text. In other databases, the full footnote appears as an interruption within the text rather than at the end of a page or document. There, the footnote text becomes more of an interruption than a mere textual citation ever could. Any free flow of argument the author sought through the law-review style is then lost.

It is ironic that footnoted citation, which is supposed to make reading easier, comes from academic legal writing. Law-review reading, where the meat of the analysis is often in the footnotes, is anything but unimpeded. Few lawyers strive to imitate the law-review article in their writing to a court. In fact, junior lawyers are often told, "We don’t need a law-review article," meaning, don’t address every tangent or exhaust every possibility when writing to a court. The law-review style may be appropriate for academic legal writing, but it does not do much for opinions (or briefs). When reviewing an argument in an opinion, we want to know what authority the author relied on. If we have an intimate knowledge of the area of law, we will want to know how the court dealt with specific cases or statutes. Even if our knowledge is more general, we’ll want to know whether the authority is recent, binding, etc. All of this information can be presented economically in textual citations.

Garner counters this objection by suggesting that the text can make general references to the authority cited in the footnotes. For example, the text might refer to "recent Washington cases" or "a 1978 Supreme Court opinion." These kinds of references are helpful, but they add words to the text — words that would not be needed if the citations were there. And often the legal reader will need to know more specifically what the authority is. Garner’s suggestion seems to recognize that the legal reader has a need to know something about the authority for an argument. It also seems to show that the problem may not lie with the awkwardness of citations in the text, but rather in antiquated overwrought rules for citation form — rules that can cause the citations to sometimes overpower the text, especially with an unskilled or inexperienced writer. Perhaps streamlined rules that allow citing to opinion paragraphs, rather than to several sets of reporters, would alleviate this problem; however, Bluebook reform is another topic.

Textual Cites Show Respect for Authority

My final objection to footnoted citations is more fundamental than the writing and reading concerns expressed above. The trend toward footnoting citations is not only annoying for readers of opinions, it threatens to subtly undermine the rule of law. This objection may appear overstated, but the demoting of legal authority to a mere footnote seems to send a message that what really matters is not the cases or statutes but fluidity of the argument. Fluidity, logic and policy are all important to legal reasoning, but courts are supposed to tether their arguments to authority. In fact, fluidity, logic and policy are all supposed to take a back seat to binding authority. The New York Times article noted that others share my concern that footnoting citations may undermine the role of precedent. Does the move toward footnoting citation reflect a more general trend away from reliance on authority? This question could perhaps be a fruitful law-review topic.

Finally, even if the law-review style takes over our courts, lawyers should be hesitant to adopt it for briefs. What works in court opinions will not necessarily work for litigants. A court wants to persuade us of the rightness of its ruling, but it need not make it easy for us to read the opinion. We are stuck with it, and if we want to know the law, we will read it, footnotes and all. A litigant, however, needs to make the argument clear and accessible — the authority for the argument had better be evident to even a casual reader. So, even if the law-review style takes over the courts, lawyers will adopt it at their own peril.

1. For a good discussion of the proper use of footnotes in appellate opinions, see Edward R. Becker, In Praise of Footnotes, 74 Wash.U.L.Q. 1 (1996) reprinted in 167 Fed. Rules Decisions 283.

Back to table of contents >>