Law Review Articles and the Joy of Footnotes

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The law reviews at Harvard, Yale, Stanford, Columbia, and about a half dozen other law schools recently banded together to protest long law review articles. After decades of condoning if not encouraging law professors and lawyers to get as wordy as possible by publishing bibles on mattress sticker-removal law, getting-rent-from-your-crackhead-roommate law, and other random legal subjects that could be summarized in one paragraph, the law reviews have turned tail. Seventy pages max, they now say. My first reaction was that 70 pages sucks for us budding legal academics – I know I can easily flesh out my article on the contract implications of BIGGIE-sizing at Wendy’s to 100 pages, but 70? Do I have to drop that section that analogizes the cashier’s BIGGIE size offer to the UCC 2-207’s Last Shot Rule?

So to make a long story short, the law reviews have basically admitted their product sucks, which it does. They probably figured making their product shorter will make it suck less, which it might. Shorter, sucky articles beat longer, sucky articles any day of the week. And that gets me to the point of this tirade: Everyone agrees law review articles are too long, even the law reviews themselves. Accordingly, why are law students and law professors still encouraged to footnote the living hell out of their articles, adding hundreds – sometimes thousands – of words to each article? Rarely have I seen a student note that doesn’t have a footnote after every freakin’ single sentence.

A student writes in his law review note: “It is generally accepted that directors and officers owe shareholders a fiduciary duty.” Simple enough. No footnote necessary. Anyone sadistic enough to be reading an article on fiduciary duties knows the topic, or at a minimum, they can do a basic Westlaw or Lexis search to get more information. And yet the footnote to this sentence is mind-numbing:

The author cites 80 cases, 50 statutes (including a parenthetical on the special case of Guam, wherever that is, because Guam doesn’t really have laws, and the fiduciary duty laws it does have are pretty funny – at least to an academic, because Guam’s still on the Model Code from 1982, instead of the Re-Model Code from 1989 – How provincial!), 25 law review articles (including arguments for and against the theses-sizes of all of them), a couple references to the shuttle missions and NASA Mission Control members’ fiduciary duties, a description of how to get to a particular trailhead in Oregon, and a breakdown of the author’s theories on the Big Bang, the Reverse Big Bang, and the non-Big Bang.

But that’s not all: the student throws in a note about how in Mongolia, there are no corporations, but remarkably there are several hundred corporate directors (blame globalization), most of whom are affiliated with Carl’s Jr.; the student inserts a clause by clause breakdown of the governing charter of Chickawa Falls, Ohio; our faithful scribe describes how the Guttenberg Bible was written and how the Bible includes some references to fiduciary duties, including the famous Letter From Paul to the Directors of McDonald’s: “Let us ask those among us who shall vote, and we shall send out proxies to all available shareholders and seek yon approval for the divestment of Chipotle in order to satisfy ye ancient and hallowed duties bequeathed to all corporate directors under God,” and finally, the student, more of as a reminder to his mom than anyone, includes a brief explanation of how to dial 411 to get information.

The second sentence in the student’s article: Courts have recognized a number of duties. Somewhere, somewhere, a law review reader (does such a creature exist? I’ve heard rumors …) cries.

Alex Ross is a 3L at the University of Colorado School of Law. E-mail him at arross@colorado.edu.

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