Nathaniel Hawthorne once reflected that “Easy reading is damned hard writing.” The same is true of almost anything—from road building to music making.
Nowhere is it more important to have “easy reading” than in writing meant to persuade. That’s why I agreed to join Mary T. Wagner, Esq., in this exchange of articles. Ultimately, you will have to decide whether it is easier to read legal writing with the citations in the footnotes, as Ms. Wagner contends, or in the text, as I believe.
Writers of both legal briefs and judicial opinions write to persuade—although the objects of their attempts at persuasion are different. The brief writer’s success turns on whether he or she can win by persuading the tribunal for which the brief is written. For the opinion writer, it is a matter of ego, not winning—will others agree or disagree? For professors who write law review articles, the main focus is entry into the sanctuary of tenure; why else would they put up with a system where they are graded by students, who decide whether and in what form the articles will be published?
There are two types of footnotes: (1) the substantive footnote, and (2) the citation footnote. Most substantive footnotes are either “asides” (something the writer wants to say that is important to the topic but whose placement in the text would derail the main argument) or “limitations” of the decision’s or argument’s reach (as where, for example, a court specifically declines to address an issue, or where a brief writer tries to limit the scope of relief sought so as to not implicate public-policy issues that do not have be decided, although, generally, this should be forcefully set out in the brief’s text).
Law review articles are infamous for their orgiastic explosions of teeming footnotes. Sometimes the footnotes have real meat, and are valuable resources for further inquiry. Often, however, they are just put in to increase the count; for tenure committees, apparently, size matters. The first sentence of a delightful satire written by a friend, William Stevens, when he was a student at the University of Pennsylvania Law School, The Common Law Origins of the Infield Fly Rule, 123 Univ. Pa. L. Rev. 1474 (1975), has three footnotes, which I reproduce as footnotes as they are in the original: “TheInfield Fly Rule is neither a rule of law nor one of equity; it is a rule of baseball.”Although footnotes 2 and 3 are substantive and valuable “asides” that were, in my view, appropriately placed as footnotes, the footnote to “The” parodies the surplusage we often see in many law review articles, which footnote citations for the most obvious of propositions.
Generally, brief and opinion writers are more circumspect in their use of footnotes than are the law-school teachers seeking tenure. As far as I know, the judicial opinion with the most footnotes is United States v. E.I. DuPont De Nemours & Co., 118 F. Supp. 41 (D. Del. 1951), which had 1,715 footnotes in its approximately 188-page discussion of whether DuPont had monopolized cellophane.
The most famous “aside” footnote in the law is, most likely, Justice (as he was then) Harlan Fiske Stone’s footnote 4 in United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938), which suggested that scrutiny beyond the “rational basis” test might be warranted when a statute “appears on its face to be within a specific prohibition of the Constitution.” Indeed, the footnote is so famous that at least one popular writer characterized it as the “unanimous” declaration of the Carolene Products court, Renata Adler, Canaries in the Mineshaft: Essays on Politics and Media 127 (2001). It was not unanimous. First, Justice James Clark McReynolds dissented. Second, Justice Pierce Butler only concurred in the result. Third, Justice Hugo L. Black wrote that he did not agree with that part of Justice Stone’s opinion that contained footnote 4. Fourth, neither Justice Benjamin Nathan Cardozo nor Justice Stanley F. Reed participated in the decision. Thus, only four of the nine justices agreed with Carolene Products’s footnote 4.
An example of a “limitation” footnote in a judicial opinion is the final sentence/paragraph of footnote 36 in City of Pewaukee c. Carter, 2004 WI 136, ¶ 45 n.36, 276 Wis.2d 333, 350–351 n.36, 688 N.W.2d 449, 458 n.36. The issue in Carter was whether the municipality could demand a “new trial” in circuit court under Wis. Stat. § 800.14(4), when the municipal court dismissed Pewaukee’s case after it had presented evidence in its case-in-chief. Id., 2004 WI 136, ¶ 3, 276 Wis.2d at 336–337, 688 N.W.2d at 451. After a lengthy exegesis as to why, contrary to Pewaukee’s contention, the general rules of civil procedure, Wis. Stat. chs. 801–847, might not apply to actions in municipal court, the final sentence/paragraph of footnote 36 declares: “We need not and do not decide the applicability of chapter 805 to municipal court proceedings.”
This essay exchange with Ms. Wagner does not, at least from my standpoint, encompass either the “aside” footnote or the footnote of “limitation.” As with footnotes 2 & 3 of Stevens’s article on the infield-fly rule, and footnote 36 in Carter, I believe that both the “aside” comment and the statement of “limitation” are, generally, properly relegated to footnotes, so the main flow of the decision (or, if a brief, argument) is not diverted by what may, at that point, be tangential to the issue analyzed in the text. But, however, both the “aside” footnote and the “limitation” footnote are relevant in an analysis of whether the routine relegation of citations to footnotes is, as I believe it to be, an impediment to fluid reading. There are two reasons.
First, unless one reads aloud, word-by-word and numeral-by-numeral, it is easier to scan past an in-text citation than it is to have to break the pace of reading to (1) look at the bottom of the page, and (2) find the specific footnote referenced. Let’s examine another opinion where the author prefers to place citations in the footnotes rather than in the text, first as published, and second with the citations in the text, State ex rel. Individual Subpoenaed to Appear at Waukesha County v. Davis, 2005 WI 70, ¶¶ 15–17 (July 9, 2005). I retain the decision’s original footnote numbers.
A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. As a remedy, writs of prohibition are often used in connection with John Doe proceedings. Neither party challenges whether a writ of prohibition is the proper procedure to test the John Doe judge's authority in the present case. Rather, the parties dispute whether, based on the facts of this case, the court should issue the writ here.
A writ of prohibition is the appropriate remedy “to restrain the exercise of judicial functions outside or beyond the jurisdiction of a court, or an official acting in a judicial capacity, where great hardship would otherwise result.”Accordingly, if the court or a John Doe judge is properly exercising powers and jurisdiction, a writ will not issue.
In the instant case, the requested writ of prohibition will issue if the John Doe judge acted in excess of his powers. Whether a John Doe judge has exceeded his or her powers is a question of law that this court determines independently.
A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. State ex rel. Rogers v. Burton, 11 Wis. 50, [*51], 52, [*53] (1860). As a remedy, writs of prohibition are often used in connection with John Doe proceedings. See, e.g., State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis.2d 653, 660 N.W.2d 260; State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 151 N.W.2d 63 (1967); State ex rel. Niedziejko v. Coffey, 22 Wis.2d 392, 126 N.W.2d 96 (1964); State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 118 N.W.2d 939 (1963); State ex rel. Kowaleski v. District Court, 254 Wis. 363, 372, 36 N.W.2d 419 (1949), overruled on other grounds by State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 537, 118 N.W.2d 939 (1963). Neither party challenges whether a writ of prohibition is the proper procedure to test the John Doe judge's authority in the present case. Rather, the parties dispute whether, based on the facts of this case, the court should issue the writ here.
A writ of prohibition is the appropriate remedy “to restrain the exercise of judicial functions outside or beyond the jurisdiction of a court, or an official acting in a judicial capacity, where great hardship would otherwise result.” Klinkiewicz, 35 Wis.2d at 375–76, 151 N.W.2d 63 Accordingly, if the court or a John Doe judge is properly exercising powers and jurisdiction, a writ will not issue. Kowaleski, 254 Wis. at 372, 36 N.W.2d 419; Peter B. v. State, 184 Wis.2d 57, 68–69, 516 N.W.2d 746 (Ct.App.1994).
In the instant case, the requested writ of prohibition will issue if the John Doe judge acted in excess of his powers. Whether a John Doe judge has exceeded his or her powers is a question of law that this court determines independently.State v. Cummings, 199 Wis.2d 721, 733, 546 N.W.2d 406 (1996) (“This court accepted certification ... in order to clarify the roles and delineate the authority of both judges and prosecutors in a John Doe proceeding. These are questions of statutory interpretation which this court reviews de novo....”).
Although the “As Footnotes” paragraphs are shorter than are the “In Text” paragraphs, the reader’s eyes will either be jumping down and up to read the citations, or, more likely, will skip the citations to avoid reader’s vertigo. If the reader skips the citations, he or she will never see the neat reference to Wisconsin’s early court system, the 1860 decision ofRogers v. Burton. If the reader conscientiously wants to see all of the citations, it will take more time to jump back and forth between the text and the bottom-of-the-page citations than it would just scanning the in-text citations. In my view, reading is much much easier when the citations are in the text (and thus can be skimmed without extra eye-movement) than when the citations are in footnotes.
The second problem with citations in the footnotes is that the reader will most likely miss at least some of the substantive footnotes—either the asides or those limiting the opinion’s scope. Why? Because when the reader goes to the well of the page and time after time comes up only with a dry case citation, he or she will stop trying—much as B.F. Skinner’s animals stopped pressing dispensing bar when the reward was irregular. And, if the reader stops looking at the footnotes, the reader will miss perhaps a crucial footnote, perhaps even one as historically significant as Carolene Products’s footnote 4, which, even though it was not a pronouncement by a majority of the Supreme Court at the time, was a watershed of modern constitutional law. See, eg., Graham v. Richardson, 403 U.S. 365, 372 (1971)(recognizing applicability of “close judicial scrutiny” to classifications based on alienage, race and nationality) (relying on footnote 4 of Carolene Products). In fact, Justice Clarence Thomas relied on Carolene Products’s footnote 4 on page 18 of the slip opinion of his dissent in Kelo v. New London, 545 U.S. ___, No. 04-108 (June 23, 2005), in which he opined that there should be high standard of scrutiny in takings cases.
As Bill Eich, a former chief judge of the court of appeals, has colorfully observed: “[M]oderation should be the rule; keeping in mind, perhaps, Noel Coward’s observation that ‘[h]aving to read a footnote resembles having to go downstairs to answer the door while in the midst of making love.’ In other words, it better be good.” Eich, Writing the Persuasive Brief,The Wisconsin Lawyer (February 2003). In my view, too, it is not “good” to force the trek downstairs when the only thing awaiting the reader is a run-of-the-mill citation. Reserve the footnote for something valuable that, although tangential to the main text, adds to your argument or analysis. If you follow this principle, your writing will be an easy read and more likely to persuade.
An INFIELD FLY is a fair fly ball (not including a line drive nor an attempted bunt) which can be caught by an infielder with ordinary effort, when first and second, or first, second and third bases are occupied, before two are out. The pitcher, catcher, and any outfielder who stations himself in the infield on the play shall be considered infielders for the purpose of this rule.
When it seems apparent that a batted ball will be an Infield Fly, the umpire shall immediately declare “Infield Fly” for the benefit of the runners. If the ball is near the baselines, the umpire shall declare “Infield Fly, if Fair.”
The ball is alive and runners may advance at the risk of the ball being caught, or retouch and advance after the ball is touched, the same as on any fly ball. If the hit becomes a foul ball, it is treated the same as any foul.
NOTE: If a declared Infield Fly is allowed to fall untouched to the ground, and bounces foul before passing first or third base, it is a foul ball. If a declared Infield Fly falls untouched to the ground outside the baseline, and bounces fair before passing first or third base, it is an Infield Fly.
Rule 6.05(e) gives operational effect to the definition, by providing that the batter is out when an Infield Fly is declared.
Depending upon the circumstances, other rules which may or may not apply to a particular situation include, inter alia, Fed. R. Civ. P., Rule Against Perpetuities, and Rule of Matthew 7:12 & Luke 6:31 (Golden).
Although referred to as “Rules” both officially and in common parlance, if the analogy between the conduct-governing strictures of baseball and a jurisprudential entity on the order of a nation-state is to be maintained, the “rules” of baseball should be considered to have the force, effect, and legitimacy of the statutes of a nation-state. The analogy would continue to this end by giving the “ground rules” of a particular baseball park the same status as the judge-made rules of procedure of a particular court.
See, e.g., State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis.2d 653, 660 N.W.2d 260; State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 151 N.W.2d 63 (1967); State ex rel. Niedziejko v. Coffey, 22 Wis.2d 392, 126 N.W.2d 96 (1964); State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 118 N.W.2d 939 (1963); State ex rel. Kowaleski v. District Court, 254 Wis. 363, 372, 36 N.W.2d 419 (1949), overruled on other grounds by State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 537, 118 N.W.2d 939 (1963).
State v. Cummings, 199 Wis.2d 721, 733, 546 N.W.2d 406 (1996) (“This court accepted certification ... in order to clarify the roles and delineate the authority of both judges and prosecutors in a John Doe proceeding. These are questions of statutory interpretation which this court reviews de novo....”).