Citational Footnotes?

[Ed's note: Yikes!  Today I am in the unfortunate position of disagreeing with Bryan A. Garner and Raymand P. Ward.]

It’s rare that I vocalize my disagreement with Bryan A. Garner.  But when it comes to placing citations in the footnotes, I respectfully dissent.  I have three reasons.

1. Citations are part of the legal language, and thus, the argument.
2. A little citation tells me a lot.
3. Writing that needs citational footnotes needs much more.

1. Citations are part of the legal language.
On the cases I specialize in, certain precedents are part of the language: Citing a case is saying something.  Consequently, when I am citing language from one of these cases, I want to reader to immediately know this.  Thus, I might begin an automobile suppression motion with:

Generally, the police may stop an automobile only “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1995).

To people in the field, my citing Whren tells them the context of the stop.  The sophisticated reader knows that I am going to discuss “good faith” and “objective reasonableness.”  The newbie to criminal law will at least know - immediately - that I am citing a fairly recent Supreme Court decision.  Which brings us to Point 2.

2. Citations tell me a lot.
When I read a quotation, I want to know how old the decision is, and which court it came from.  I don’t want to glance down at the bottom of the page.  I'm no loner in wanting to know what said what and when. 

A Ninth Circuit decision will not be very persuasive to the Fourth Circuit, and vice versa.  Thus, the reader should immediately know whether the decision is precedential, and if not, how persuasive it should be.  Indeed, I think our citations can sometimes be a bit longer.  Thus:

A criminal defendant may bring an as-applied challenge to a federal law enacted pursuant to Congress’ commerce power.  United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003)(Kozinski, J.).

3. Writing that needs citational footnotes needs much more.
Raymond Ward cites this creature as a candidate for a citational footnote makeover: 

Over the years, the Supreme Court has outlined three possible exceptions to the general rule that monetary remedies are legal claims: (1) restitutionary awards, see, e.g., Terry, 494 U.S. at 570, 110 S.Ct. at 1348; Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987); Curtis, 415 U.S. at 196 n. 11, 94 S.Ct. at 1009 n. 11; (2) money awards incidental to equitable relief, see, e.g., Tull 481 U.S. at 424, 107 S.Ct. at 1839; Curtis, 415 U.S. at 197, 94 S.Ct. at 1010; and (3) discretionary money awards. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 442-43, 95 S.Ct. 2362, 2384, 45 L.Ed.2d 280 (1975) (Rehnquist, J., concurring); Curtis, 415 U.S. at 197, 94 S.Ct. at 1010. See also Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999).

That “sentence” sucks.  And its author needs to return to first principles before we can say he or she needs to use citational footnotes.  Applying these first principles will give the author the fix she needs.

First, more than two items in a series deserve a list.  Thus, I would write:

Generally, monetary remedies are legal claims.  However, the United States Supreme Court has recognized three important exceptions:
(1) restitutionary awards (Tull v. United States, 481 U.S. 412 (1987);
(2) monetary awards incidental to equitable relief (Id. at 196 n. 11);
(3) discretionary money awards (Albemarle Paper Co. v. Moody, 422 U.S. 405, 422-43 (1975)(Rehnquist, J., concurring).

Do the citations look so awful now?

Second, the author does not provide a parenthetical for one of his sources.  Thus, I would write:

The reader may also consult Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999) (saying, doing, collecting, or standing for whatever).

I admit that my way for doing things takes up a lot of space, but that comports with my third rule: White space is nice.  I feel much less intimidated - which matters to this writer more since I began wearing glasses - by written work that provides my eyes a lot of time to pause.

I also imagine that writing that uses string citations requires citational footnotes.  But that makes me wonder: Why are you using those strings?

A compromise?
Unfortunately, many courts require parallel citations to sources.  In those jurisdictions, a hybrid citation would improve things.  Thus:

Tull v. United States, 481 U.S. 412, 424 (1987)[fn1]

[1]107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987).

Comments

[Thomas Kemp]

Maybe it is just laziness, but I agree with you. When I started law school, I disliked the format of legal writing, longing for the footnote/endnote format of the research papers I wrote for my philosophy degree.

But now, I cannot stand reading a document where the citations are buried in endnotes. This is the style of many law reviews and legal magazines. Flipping pages (or even glancing to the bottom of the page) just to see a cite is disruptive to the reading experience.

Legal cites are compact and very informative. You really cannot read a particular proposition in a brief without knowing where it came from. A cite from the Second Circuit has different meaning than one to the California Court of Appeals (at least outside of Cal). The cite gives immediate feedback as to the authority for a particular proposition, and when, in the timeline of a particular line of cases, the proposition was penned (e.g. pre-Barkley or post).

After years reading legal briefs, I check the cites on everything I read, even non-legal stuff, and I find the reading process more cumbersome when "the story" is split into two locations.

[Ray]

F84: Actually Garner advocates some of what you say. He recommends weaving the case name, the court name, and the year of the decision into the text. He recommends using footnotes for the reporter volume and page number and parallel citations.

Here's an example: "In Webster v. City of Houston,1 a 1984 en banc decision, the Fifth Circuit established a formula to govern the imposition of liability on a municipal corporation under Monell." That's not much different from your style.

[Fed.No.84]

I think that Garner's method puts the circuit/case posture/year as the subject of the sentence. While I think it's important to know who decided the case when, I think the legal proposition should be highlighted first. That's why I like citations in the body of the writing. It gives me the information I want, but only after I see the legal proposition.