56 U. Colo. L. Rev. 647 (1984-1985)
Goodbye to Footnotes

handle is hein.journals/ucollr56 and id is 663 raw text is: GOODBYE TO FOOTNOTES

ABNER J. MIKVA*
In the almost fifty years since Fred Rodell wrote his classic piece
Goodbye to Law Reviews, 23 VA. L. REv. 38 (1937), some important
things have not happened to legal writing.
1. The law reviews have not changed.
2. Judicial opinions (at which Professor Rodell took a very hefty
sideswipe) have not changed except to become even longer and more
numerous.
3. Professor Rodell did not even keep his promise not to write
any more law review articles-he succumbed on numerous occasions,
including a brillant reprise, Goodbye to Law Reviews- Revisited, 48
VA. L. REV. 279 (1962).
4. The use of footnotes in legal writing has not been contained.
Instead it has spread like a fungus and has magnified all of the short-
comings of legal writing so deftly denounced by Rodell.
Rodell himself called footnotes phony excrescences. Since I
cannot improve on that summation, you now have my thesis. I pre-
dict that this diatribe against footnotes in judicial opinions will bear
no more fruit than have Fred Rodell's complaints about legal writing
in general, but here goes anyway.
First, a few more words about Professor Rodell's original Good-
bye. I give reprints to all my clerks at the beginning of each term as a
partial antidote to their Law Review or other legal writing exper-
iences. Rodell's diagnosis was pithy: There are two things wrong
with almost all legal writing. One is its style and the other is its con-
tent. Although he sniped at footnotes in both of his articles, Rodell
aimed his main assault at the whole institution of legal writing-a
scattershot attack on a venerable institution which dates back at least
to the Ten Commandments.
My aim is much lower and narrower. I consider footnotes in ju-
dicial opinions an abomination. While much of what I have to say
may apply to footnotes wherever they may be found, my emphasis,
both as to problems and solutions, is on judicial opinions.
Let me start with the physical properties of footnotes and the dif-
ficulties they cause. By definition, a footnote is below the text to
* U.S. Circuit Judge, D.C. Circuit.

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