The footnote in law writing

In Judges take note: but are we dragging our feet when we should be toeing the line?  Elijah Z Granet urges law report publishers – and judge’s themselves – to use footnotes in judgments. As he points out: academic legal writing may use such notes, but in English and Welsh reports we still continue to print citation in a judgement in full in the text. This post seeks to praise generally the footnote in legal and academic writing.

For me the doyen of the effective footnote is Dr Stephen Cretney. Perhaps the pinnacle of his skill can be seen in Family Law in the Twentieth Century: A History, Oxford, 2003. Cretney was a consummate lawyer; but he was a historian of skill and perception, and liked to think of himself as a journalist. The lawyer and journalist feed the historian.

Cretney’s use of the footnote – sometime half a page and more – enables the reader to follow the main text of the book; and the author’s asides and longer references internal to the documents he is discussing can be paused on, glossed over completely or returned to later (according to the reader’s choice). Not to read the footnote at all does not detract from the text. To do so can add another dimension or a precious authorial aside.

For example, Cretney devotes seventy pages to Divorce Reform Act 1969 where he discusses divorce reform as a whole between 1945 till the end of the century. He considers the further need for reform at pp 385 to 390. His review of the ill-fated Family Law Act 1996, Part 2 of which dealt with divorce reform and was never brought into operation.  In the course of that he spends a few lines (in n 454 on p 388) discussing Mrs Margaret Thatcher’s views on divorce (she did not want to make it too easy, and did not wish to follow the then Law Commission’s recommendations). On the next page (n 461) Cretney explains the extent to which the government’s position differed from the Law Commission.

Lord Mackay’s view of the importance of mediation is explained (at n 457: I recall a meeting with a very personable Lord Mackay when a small group of us from Bristol went to London to see him, in about 1989, and explained to him what “mediation” was all about). None of these or other aside footnotes are essential to development of the author’s review of the history of family law; but all add depth which may be of interest to an individual reader.

And I’ve written all that without cut and pasting anything: Cretney’s book is only available to me in paper print…

Legal academic writing

Two academic books chosen at random, both of which are student textbooks and top class practitioner guides (ie cited in Supreme Court) are Administrative Law (2014) Wade & Forsyth (11th Ed) and Elements of Land Law (2009) Gray & Gray (which still seems to be in its fifth edition). The footnotes are less, and more technical, than Cretney’s; but they still perform the role of enabling readers to move through the text without being held back by authorial interference. As general text-books neither of these need to go into the detail which Cretney provides; but even so the wealth of additional material provided by both is helpful for the reader who wants more detail – or access to more detail.

In modern writing the temptation – resisted or not in varying degrees – is to cut and paste from online sources. An obvious example of this, in present company, is the law report. Cases are mostly readily available from BAILII (as unreported judgments) and then from such publishers as ICLR (as law reports). Thirty years, and more, ago when a writer had to transcribe any reference you did so sparingly. Now you can do so ad lib. The same applies to legislative material: statutes and delegated legislation, for example. (The three authors cited here only cut and paste very sparingly, if at all.)

Cut and paste sparingly

There surely is a role for the footnote, if source material is to be published. And some text is essential, above the footnote line. For example Lord Scarman on a child’s age and intelligence (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112 at 186, [1986] 1 FLR 224 at 251):

“The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….”

And Toulson LJ on open justice in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

“[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’”

These passages justify cut and pasting into any treatment of their subject matter; but sometimes to cut and paste to save time – let us be frank – is authorial laziness. If a passage is to be included in a book or article, surely a footnote is adequate; and that often helps the reader who may otherwise only skip over lengthy passages of more detailed judicial exegesis than is needed.

A further use for a source material footnote saves paper. Thus, often in legal books a broadly relevant statute or set of rules or regulations will be inserted as an Appendix. But why not insert into the text of the book only the statutory material needed, as part of the text – the subject of this post – as a footnote? The reader has the reference to hand (without going to the back of the book) where reference occurs. And if numerous references to a text are made, there can be cross references to the first (footnote or text) time the subject source is set out.

Adding footnotes to a text

Adding footnotes nowadays is “trivially easy”, concludes, Granet:

“If a judge wants to refer to a long line of case law, the flow of the judgment must be visually paused in order for the roll of citations to be printed out.  When footnotes are used properly… they allow citations and text to each repose in their proper place, enabling the reader to consult each in the best format possible.”

For judgments this may be a tricky debate. The role of headings and marginal notes as an aid to construction comes to mind. Can a footnote ever form part of the ratio of a judgment; or are they always obiter? That said, and taking Granet’s points, there are judges who routinely incorporate footnotes into their judgments. In the light of what I say above, I would say this is a good thing; though any personal asides require care.

For academic writing such as Stephen Cretney’s I cannot urge the footnote too strongly – so long as it is a “footnote” (ie at the bottom of the page where it arises) not inserted later in some later part of the book and which would then require reading disruptive extra page-turning.

Granet’s point remains for debate. The purpose of this post, meanwhile, is to praise the footnote generally in legal writing.

Featured image: footnote concept via Shutterstock