"Choose Your Own Legal Scholarship"

Those of you familiar with legal scholarship know that it is overflowing with footnotes.  It would not be particularly unusual to read a five sentence paragraph with five footnotes, where each footnote has multiple paragraphs and citations.  Think about what this must do to the unity and clarity of the original paragraph in the text!  But what does it do?  It depends in part on how people read these footnotes.  Do they (1) read all of them, (2) read none of them, or (3) read them selectively? I'm sure it depends on the piece and what the reader is trying to get out of it.  I suspect that the answer is (3), for most people, most of the time.

Reading notes selectively is a hit-or-miss enterprise, however.  It turns legal scholarship into a "Choose Your Own Adventure" story.  Readers almost certainly miss out on important footnotes and read ones that are less important.  Two different readers may come away with different views of a piece in part because they haphazardly selected different notes to read! Why not give authors a bit more control over the process?  For example, an ordinary superscripted footnote in the body text could indicate a relatively simple reference to a source or sources.  An underlined superscripted footnote could indicate that the note contains significant additional textual material.  This would at least save our eyes from playing vertical ping-pong (or our fingers from flipping back and forth when reading the awful Westlaw and Lexis law review formats).  If you want to get fancier and less elegant, a double-underlined superscripted footnote could indicate that there is additional textual information in the note that the author thinks is particularly interesting or important. 

I know, I know, the Bluebook is complicated enough as it stands.  And I think the conventional wisdom says that authors should try to put all the important material in the text.  But that may be an unnecessarily restrictive view.  Footnoted material might be interesting, original, and important, yet still be somewhat tangential to the paper's main thesis.  Robert Nozick's footnotes come to mind. 

In any event, in a field where 1/3 of our work appears in footnotes, it is worth thinking critically about what these notes are meant to accomplish, particularly as law review articles have become less about citation to legal authority and more about citation to other scholarship and to non-legal sources.   For example, some say that detailed footnoting helps fill the void in legal scholarship left by the fact that most of it is not peer reviewed.  I'm not sure how much it fills the void, and though I'm still ambivalent about law review footnoting, I do find more and more that when I read non-legal scholarship, I'm disappointed that important claims or data points lack sufficient references.