Monday, May 13, 2013

Foot Fetish

Several of Shakespeare’s characters exhibit a pronounced interest in feet. For instance, Don Armado in Love’s Labour’s Lost confesses that he has an affection for a certain wrench—an affection that is admittedly “base”—that is centered on her feet:

I do affect the very ground, which is base, where
her shoe, which is baser, guided by her foot, which
is basest, doth tread.

Later, this same Armado writes this same wrench a love letter wherein he imagines caressing, among other things, her lower appendages:  “I profane my lips on thy foot, my eyes on thy picture and my heart on thy every part.”

Similarly, Caliban of The Tempest seems fixated on feet. After falling in love with Stephano’s “celestial liquor,” Caliban swears his loyalty to the besotted boatswain thus:

I'll show thee every fertile inch o' th' island;
And I will kiss thy foot[.]

Later, Caliban is even more explicit, describing himself to Stephano as “thy Caliban, … thy foot-licker.”

Like Armado and Caliban, there are eccentric lawyers who are peculiarly attached to feet or, more precisely, to footnotes. But let’s be clear: in practical legal writing, footnotes are not the conventional repository for legal citations. This is because, as law students soon learn, those ugly citations that seem to clog up legal writing are actually jam-packed with useful information. And those forced to read legal writing for a living rely on those citations as a means to assess the value of an argument even as they ingest it. This is because legal arguments are only as forceful as the authority upon which they rest. And crucial information about an authority is conveyed through a standardized citation form, which is dictated by the Evil Minions charged with editing The Bluebook of Uniform Legal Citations. All law students are introduced to this frightful reference guide early in the hazing process. They soon learn that these citations are shorthand for an array of useful stuff such as: whether a given source is a primary or secondary legal authority (only the former is really “the law”); whether the authority emanates from a court, a legislature, a regulatory body, or just some law professor; and whether, if it is a primary authority, it comes from a binding jurisdiction. A citation also tells how old the authority is, and recency often matters because the law is forever in flux. And, quite importantly, a citation is supposed to include the precise page where the reader can expect to find a particular quotation or proposition since no reader of legal writing is naturally predisposed to trust those who produce legal writing (i.e., lawyers); these readers plan to verify your reputed authorities and thus do not appreciate having to shift through a 45-page judicial opinion to find where it says what you say it says.

Very quickly, readers of legal writing learn how to take in all of this info about an authority on the fly while reading the substantive argument that is allegedly supported by the citations the author provides. Therefore, sticking this info in footnotes can be problematic. It forces the well-acclimated reader of legal writing to pause, glance down at the bottom of the page, scan the citation in question, and then search around for the place back up in the body of the argument where the reader was interrupted by that footnote. In other words, as opposed to what normal people do when they encounter footnotes in academic writing, readers of legal writing want the “goods” in the footnotes so they really will stop to read them all, though everyone knows this process of stopping to move down and back up the page is peculiarly disruptive.

This additional labor is why only a handful of practitioners, judges, and legal writing gurus make a fetish of putting citations in footnotes, like legal scholars do. And, it seems to me, that most of this minority of footnote-fetishizers is comprised of folks who did not spend much of their career actually practicing law.

I do not mean to suggest, however, that footnotes have no place in practical legal writing. Au contraire! Footnotes are really useful for two purposes—as a repository for:

  • True asides; and
  • Ugly Internet citations. 
Here are my justifications:

First, some ancillary arguments are worth making—and can be made efficiently—but would disrupt the flow if elevated to the main text. By sticking such arguments in footnotes—and making sure they work as stand-alone pieces—the reader is free to go back and consume them at his or her leisure. (The challenge is to resist using footnotes to house gratuitous swipes at opposing counsel that really don’t advance the client’s interest but simply serve as a means to vent.)

Second, I really hate how ugly and convoluted URLs/web addresses generally are. So whenever I cite an authority that is readily available on the Internet, I systematically bury those citations in a footnote. It’s an aesthetic preference, nothing more than that.

So I concede that footnotes have their place. But fetishizing footnotes—as if they were the answer to rendering legal writing more accessible to some imaginary general populace who longs to read legal arguments—that I find as amusing as Don Armado’s adoration of “thy sweet grace's slipper” and Caliban’s foot-licking.