TO READ THIS STORY IN FULL, DON'T FORGET TO SEE THE FOOTNOTES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05T02051R000200350041-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: August 1, 2011
• Sequence Number: 41
• Publication Date: May 10, 1988
• Content Type: OPEN SOURCE

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5?75 101 EDITI0NSIOUS
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E WALL Sanitized Copy Approved for Release 2011/08/01: CIA-RDP05TO2051 R000200350041-6
JOURNAL.
Construction Spending
SPENDING for construction rose in
March to a seasonally adjusted annual rate
of $401.8 billion from a revised $396 billion
in February, the Commerce Department
reports.
To Read This Story
In Full, Don't Forget
To See the Footnotes
It's Trying to Seem Erudite,
Just Like Law Reviews;
Record 3,917 Ibid.s, Infra.s
By PAUL M. BAwtm-r
Staff Reporter of TILE WALL STREET JOURNAL
For generations, American law profes-
sors have feared discovery of an embar-
rassing secret: Most law-review litera-
ture isn't scholarly at all, but merely aca-
demic-sounding surveys of court opinions
and statutes.
In a famous 1936 self-indictment, a
Yale University law professor named
Fred Rodell wrote: "There are two things
wrong with almost all legal writing. One
is style. The other is content."
Now, a growing number of academics
are confessing publicly to one of Prof. Ro-
dell's main charges. They admit being ob-
sessed with footnotes.'
,Open almost any law review and you'll
find yourself buried in a jumble of Ibid.s
and infra.s, microscopic qualifications
and cryptic cross-references. Footnote
sprawl is so bad that it frequently be-
comes the page, leaving only a few lines
of text jammed in at the top.
Excuse for Obscurity
Prof. John E. Nowak of the University
of Illinois says footnotes are "an excuse
to let the law-review writer be obscure
and befuddled." So great is the alarm in
some quarters that a new brand of litera-
ture has sprung up in which law profes-
sors bemoan their pedantic ways. "A
chorus of critics," says Prof. Arthur D.
Austin of Case Western Reserve Univer-
sity, "argues that footnotes have become
a serious embarrassment to legal scholar-
ship and one of the main culprits in the
death of decent writing in law reviews."
Fred R. Shapiro, a law librarian at
Yale, tracks the footnote furor as a kind
of a hobby. His research reveals that the
Georgetown Law Journal holds the over-
all record of 3,917 footnotes In a 1987 sur-
vey of criminal procedure written by the
review's staff. The individual champ is
Jesse H. Choper, the dean of the Univer-
sity of California's law school at Berke-
ley, who weighed in with 1,611 footnotes in
a recent article on the Supreme Court.2
TUESDAY, MAY 10, 1988
The footnote habit has "spread like a
fungus" through all legal writing and has
"deadly serious" Implications, complains
Judge Abner J. Mikva of the U.S. Court of
Appeals in Washington, D.C. Judges, who
routinely cite law-review articles as au-
thority, have themselves fallen victim to
the infection.
Malleable Material
Some judicial opinions are so bogged
down in footnotes and so confusing that
lawyers can later bend them to fit any
number of conflicting assertions, Judge
Mikva says. "It makes the law flabby,"
he adds. "It makes it too easy [for law-
yers and judges] to use the 'on the other
hand' arguments." To dramatize his con-
cern, Judge Mikva has gone cold turkey.3
Dubious erudition is the theme that
runs through much of the footnote excess.
Aspiring to library macho, legal scholars
decorate their prose with exotic discover-
ies-what Prof. Austin calls "fugitive
sources." Quoting from judges' personal
letters or obscure trial transcripts, for ex-
ample, is thought to win an author respect
as "a ferocious archaeologist," he says. A
snippet from the Nixon White House tapes
on the former president's opposition to
antitrust enforcement is also' deemed im-
pressive.
Among left-leaning professors, it is
fashionable to begin articles with volumi-
nous references to French literary decon-
In pursuit of vivid footnote Imagery, one would have
difficulty surpassing Noel Coward: -Encountering [a
footnote) is like going downstairs to answer the door-
bell while making love."
2 Mr. Choper, a reluctant title-holder, argues, "The
numbers aren't very pertinent; it's the quality." Any-
way, he says, he "could have had 300 more foot-
notes" if he hadn't shown restraint.
i.e., he has eliminated footnotes from his opinions.
I structionism and neo-Marxist philosophy.
Professors influenced by the University of
Chicago's free marketeers prefer to prove
their points with reams of mysterious
econometric formulae.
A lawyer once tried to hire him, Prof.
Austin says, after reading one of his arti-
cles "full of incomprehensible footnotes."
Recalls the professor: "I was the right
person to confuse his opponents."
Some footnoting, impossible to catego-
rize, may best be understood as exercises
in creative irrelevance.
A recent Cornell Law Review article
on "Legislation, Adjudication and Implied
Private Actions in the State and Federal
Courts" mentioned a case involving the
Goodyear Blimp. Inspired by his unusual
subject, the author digressed to inform
readers that "the Blimp is shaped like a
football" and that for further discussion
of "the aerodynamics of oblate
spheroids," one could refer to R. Von
Mises's "Theory of Flight," page 102 4
Inferiority Complexes
Several things contribute to footnote
overkill. Probably topping the list is law
professors' inferiority complex. Most le-
gal scholars lack graduate training be-
yond law school, which emphasizes prepa-
ration for the trade more than traditional
research.
"The historians doubt their serious-
ness, the social scientists doubt their
rigor," says Robert Stevens, the chancel-
lor of the University of California at
Santa Cruz and a former professor at
Yale Law School. "Footnoteitis," he ex-
plains, is a defensive response, a grab for
respectability.
Some tenure committees exacerbate
the problem by confusing heft with qual-
ity. Prof. Nowak recalls as a young
teacher receiving this advice from a
kindly mentor: "Take an obscure little
problem that no one has thought much
about, blow it out of all proportion, and
solve it, preferably several times, in pres-
tigious law reviews."
Law reviews also nurture the footnote.
Unlike most scholars, law professors pub-
lish most of their work in journals edited
by students and not refereed by outside
experts. Historically, the paradox of
trainees coaching veterans has been over-
shadowed by celebration of review editor-
ship as a teaching tool and rite of passage.
Habits Into Rules
The result, however, is that neophytes
convert the bad habits of their elders into
rigid rules. No proposition sees print with-
out a little number next to it. Mr. Stevens
describes writing about a Connecticut
statute and receiving an edited version
with -footnotes admonishing " 'and see
[the laws of] Alabama, Arkansas, Califor-
nia, Delaware' and so on. They want I ed I
every statute in the country.... It's kind
of a Parris Island Boot Camp mentality."
Past and present law-review editors
admit complicity but defend their ap-
proach as a bulwark against unsubstanti-
ated arguments. "We challenge the au-
thor to support his assertions with actual
law," says Philip Sechler, the editor of
the title-holding Georgetown journal.
But he does concede that "it would
take an awfully long time to read" a typi-
cal article with all its footnotes.'
' The critics themselves aren't immune to flights of
fancy. Prof. Austin, in his critique of obsessive foot-
noting, describes the phenomenon of professors "air-
ing it out for numbers"-going for broke and throw-
ing in every imaginable citation. In a footnote of his
own, Prof. Austin explains that the term derives from
the football colloquialism for a long pass and that he
has discussed the matter personally with Bernie Ko-
sar, a Cleveland Browns quarterback.
Mr. Sechler adds: "I concentrate on the text."
Sterling Electronics Acquisition
HOUSTON-Sterling Electronics Corp.
said it completed the previously announced
acquisition of Minneapolis-based Industrial
Components Inc. in a transaction involving
a combination of notes, cash, stock and lia-
bility assumption. Industrial Components,
a maker of electronic parts, becomes a di-
vision of Sterling, with current manage-
ment retained.
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