The Volokh Conspiracy

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Volokh Conspiracy

No Footnoted Citations for Us, We're Courts

Law review articles put citations to cases and statutes in footnotes. Briefs generally shouldn't.

|The Volokh Conspiracy |

From a federal district court opinion I was just reading,

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Now of course different judges and different courts have different views, so you should figure out how things are done in the court in which you're practicing. But, generally speaking, my advice is to avoid footnotes, except for

  1. Citations to secondary sources, such as newspaper articles, law review articles and the like -- these tend to be long (especially when you include URLs) and especially distracting, and at the same time not so authoritative that the judge will likely particularly want to see them in the text.
  2. Occasional citations to long strings of cases or statutes supporting a proposition (e.g., a list of the 30 statutes in states throughout the country that support your proposition, especially when you've already cited the two most relevant ones in the text).
  3. Very rarely, substantive discussions that are put in just for the sake of completeness or candor, and that you wouldn't mind the judge never noticing.

I keep thinking that, in Russian, citation ("ssylka," or ??????) is the same word as "internal exile" -- the literal meaning is something like "a sending," in that you're being sent either to another source or to Siberia. To be sure, the word applies to all citations, whether in a footnote or otherwise; but the footnote especially sends readers to some other place, and they might not want the trouble of going there and back.