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Wednesday, July 06, 2005

Charlie Sullivan and the Law Review Asterisk Footnote

Asterisk_3 By Daniel J. Solove*

* Associate Professor of Law, George Washington University Law School; J.D. Yale; Blogger at PrawfsBlawg and Balkinization.  I would like to thank Charlie Sullivan for writing the article that inspired this blog post.  Bruce Ackerman, Guido Calabresi, Cass Sunstein, Jack Balkin, and many others did not supply any comments or assistance to this post and have not even read it; nor have I even sent it to them for comments or talked to them about it.  But I wanted to mention some big names in this footnote, and I at least thought about them when I penned this post, so they deserve some credit.  I would also like to thank TypePad, which created the program with which I composed this post as well as Microsoft, which created the operating system that helps me occasionally by crashing and other software that allows me to realize my dreams.  The views in this post are solely my own Charlie Sullivan’s since this post basically just describes his article.  Any errors are, of course, to be attributed to Dan Markel, as he secretly edits all our posts and is responsible for all the errors or stupid things we say in them.

Joining a long line of footnote scholarship, including Anthony Grafton’s The Footnote: A Curious History and Jack Balkin’s famous law review article, The Footnote, comes this profound study by Professor Charlie Sullivan (Seton Hall Law School) in the Georgetown Law Journal, The Under-Theorized Asterisk Footnote.  A final version is available on SSRN.  From the abstract:

The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest. As I use the term, asterisk footnote refers to the note (usually, but not always, the first one) that, inter alia, identifies the author and (usually, but not always) is indicated by an asterisk. This footnote is used by every scholar but analyzed by none. This scholarly inattention is shocking given the remarkable growth and development of the asterisk footnote over the last 40 years. This Article is the first effort to address this gaping lacuna in scholarship. It is my hope (perhaps not my expectation) that it will launch a wave of asteriskian studies that will throw new light on the legal academy.

In addition to tracing the history of the asterisk footnote from its origins in the primeval scholarly ooze to its present exalted status, the Article explores its significance for the legal academy on topics ranging from wholesale acknowledgements to dedications to pets. It also considers what light the asterisk footnote can throw on questions as diverse as the proper etiquette for tributes and the democratization of scholarship.

Sullivan compares asterisk footnote length in Harvard Law Review from the late 1960s to more recent volumes and notes “an explosive growth in the size of the footnote and, more interestingly, a transformation of the functions the footnote serves.”

From the article:

With respect to lead articles, however, Volume 114 reveals a number of dramatic changes in the asterisk footnote. Take Akhil Reed Amar, for example; the asterisk footnote to The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine, is worth reprinting in full:

*Southmayd Professor of Law, Yale Law School. The ideas presented below owe a great debt to what might be called the late-twentieth-century “Yale School” of constitutional interpretation, especially the writings of Charles Black, John Hart Ely, Bruce Ackerman, Jed Rubenfeld, Jack Balkin, and Reva Siegel. Thanks also to Vik Amar, Jon Blue, Steve Calabresi, Erez Kalir, Neal Katyal, Sandy Levinson, Mike Paulsen, Richard Primus, Bob Pushaw, Kim Roosevelt, and Jeff Rosen for their comments on earlier drafts, and to Brooks Allen, Josh Chafetz, Won Joon Choe, Harleen Kahlon, and Vasan Kesavan for their research assistance. 

For those who have stayed awake thus far, there are three remarkable features to this footnote.  First, the elimination of academic credentials. As was true for President Pusey in Volume 81, current position says it all for Professor Amar, and this seems to be generally true, since most authors in Volume 114 omitted their academic degrees. The one exception may, perhaps, be forgiven: a judicial clerk in the company of giants of the academy notes his Ph.D and J.D. 

Second, the intentional informality of the acknowledgments. It would be hard to imagine any of the authors in Volume 81 thanking, say, “Archie” Cox or “Andy” Casner.  But it’s apparent that none of Amar’s reviewers (with the exception of “Richard” Primus) wears a suit and tie to class. These are the kind of people you could have a beer with after work. OK, share a bottle of Pinot Grigio. 

The most dramatic change in the asterisk footnote is the sheer number of scholars who vetted Professor Amar’s work before it was published. Even putting aside possible unidentified members of the “Yale School,” Amar’s article reflects eleven names—more input from colleagues in the academy than in the entirety of Volume 81. Nor is Professor Amar unique in this. While there are authors who acknowledge fewer colleagues, some Volume 114 authors acknowledge far more. Consider Daniel J. Seidmann and Alex Stein, whose The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege acknowledges the collective contributions of participants at three conferences and eleven faculty workshops spanning at least three countries, as well as forty-one individuals thanked by name. By this standard, Professor Amar is a “close to the vest” kind of guy. 

But Seidmann & Stein do not hold honors for acknowledgments, even in Volume 114.  That distinction belongs to Louis Kaplow & Steven Shavell, whose asterisk footnote in Fairness Versus Welfare (after identifying the current positions of the authors) begins, “This article will subsequently appear in book form.” As this consumer advisory warns, the article continues for 422 pages. (C.C. Langdell’s desire not to impose too much on the reader at one time has obviously been consigned to the dustbin of history. On the positive side, Fairness versus Welfare does not end with “To be continued.”) . . . .

[The footnote includes] fifty-one named individuals, twenty-three conferences or workshops (in at least three countries), and thirty-four research assistants.  This is the record for Volume 114; the number of individuals acknowledged in other articles is more in the Amar range, although the distribution is wide. Only one author failed to thank anyone.

The themes of this post are too complex to pull together in a tidy conclusion, so I will end by suggesting that you download Charlie’s piece for an entertaining and interesting read. 

Posted by Daniel Solove on July 6, 2005 at 01:10 AM in Article Spotlight, Life of Law Schools, Odd World | Permalink


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Maybe I'm late to the party, but to the commenter who heard the author footnote was called a "dagger footnote":

I think it's called that because in earlier type printing (and still some), the author footnote icon was a dagger, instead of an asterisk.

Posted by: The Dude | Jul 7, 2005 10:52:41 AM

I agree, it's an excellent piece (full disclosure--he's a colleague!). Particularly interesting are the revelations on the personal side of attributions--for example, when people began to feel comfortable dedicating articles to relatives (or dogs!). Another idea in the piece is that the asterisk footnote is a step toward the scholarly community's recognition of the social bases of its enterprise--both of the people at home who support the scholar and the community of inquiry that validates certain issues as being worthy of research.

Posted by: Frank | Jul 6, 2005 6:54:42 PM

I just read this article, and I commend it to you all. It's amusing, it's something we all deal with, it's even a bit enlightening.

And I agree with Christine - the Green Bag is totally right about this.

(I'm spending my afternoon hiding from my own writing and commenting on Prawfsblawg - must stop!)

Posted by: david | Jul 6, 2005 4:41:46 PM

I've been a fan of Sullivan's employment law work, so I mean no disrespect to him when I say this... but isn't this a glaring example -- almost a parody -- of the observation that if you want to "publish well" (e.g., Georgetown Law Review), suck up to Law Review editors by making them feel like their little cubbyhole of the world is oh-so-important? Relatedly, I've just decided on the new direction of my scholarship: an economic analysis of the law review editor selection process; comparative analysis of law review font sizes....

Posted by: Scott Moss | Jul 6, 2005 9:11:54 AM

1. I always liked the Green Bag's take on author notes: "We write them. We will note authors' gratitude to research assistants. Colleagues who make major changes should share the byline. Colleagues who are helpful in small ways should be recognized in something printed by Hallmark, not the Green Bag."

2. Some people call author notes "dagger footnotes," which sounds really violent.

Posted by: Christine Hurt | Jul 6, 2005 8:53:51 AM

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