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When a Rose isn't “Arose” isn't Arroz: A Guide to Footnoting for Informational Clarity and Scholarly Discourse
Published online by Cambridge University Press: 28 February 2019
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Not every proposition in a law review article requires citation, nor does every footnote require cited authority. Indeed, only a few of the several possible types of footnotes require the author to cite to authority. Unfortunately, many student editors and research assistants do not understand the distinctions among types of footnotes and expect each to look the same – a reference to some other author's research or thoughts on the subject mentioned in the text. I have therefore written this article explaining the different types of footnotes and how to prepare them.
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129 Authors of law review articles should sometimes be allowed to take “judicial notice” of obvious propositions. How much latitude they should get in this regard should be a product of how much gravitas they have accumulated in the field. In other words, is the matter of which they take notice something that should be considered within their scope of authority as experts within the field, speaking with their own voices? For a tongue-in-cheek work providing a handy citation source for dozens of obvious but hard-to-document legal propositions, see Patrick M. McFadden, Fundamental Principles of American Law, 85 Cal. L. Rev. 1749 (1997).Google Scholar
130 Many student law review editors would ask me to support this statement – unnecessarily. I make this statement on my own authority as the author of this article. See footnote 2, supra.Google Scholar
131 I have written this article in the first person, because first person, though less common than third person, often produces a less convoluted text. In an article stressing the need for clarity, this can only be a virtue. In addition, I believe that my guidelines will be useful to students responsible for preparing or editing scholarly legal footnotes, but make no claim to the universal value for this article that might be suggested by a third person voice.Google Scholar
132 THE BLUEBOOK:A UNIFORM SYSTEM OF CITATION (18th ed. 2005).Google Scholar
133 Richard A. Posner, Goodbye to the Bluebook – Appendix: University of Chicago Manual of Legal Citation, 53 U. Chi. L. Rev. 1343 (1986).Google Scholar
134 ALWD Citation Manual: A Professional System of Citation (2d ed. 2003).Google Scholar
135 This concern may arise where a source, like a judicial authority or a preliminary scientific finding, appeared sound when it was cited but has since been overruled or rejected. It may also arise where there is reasonable scope for disagreement with the findings of the original source, which might never be discovered if the source is not identified.Google Scholar
136 Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar
137 The Antidumping Act of 1921, ch. 14, title II, 42 Stat. 11 (1921)(repealed by the Trade Agreements Act of 1979, Pub. L. 96-39, Title I, § 106(a) at 93 Stat. 193 (1979)).Google Scholar
138 William B.T. Mock, “When a Rose isn't ‘Arose’ isn't Arroz: A Guide to Footnoting for Informational Clarity and Scholarly Discourse,” (200). «Now I know that this article will have been cited at least once.»Google Scholar
139 Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar
140 The Antidumping Act of 1921, ch. 14, title II, 42 Stat. 11 (1921)(repealed by the Trade Agreements Act of 1979, Pub. L. 96-39, Title I, § 106(a) at 93 Stat. 193 (1979)).Google Scholar
141 384 U.S. 436 (1966).Google Scholar
142 The Antidumping Act of 1921, ch. 14, title II, 42 Stat. 11 (1921)(repealed by the Trade Agreements Act of 1979, Pub. L. 96-39, Title I, § 106(a) at 93 Stat. 193 (1979)).Google Scholar
143 Rule 10.3.1, BLUEBOOK, supra note 5.Google Scholar
144 Sometimes, it may be appropriate to use an “as cited in” or “available in” form of citation. Compare Rule 1.4 to Rule 1.6, BLUEBOOK, supra note 5.Google Scholar
145 Rules 3.1-.5, BLUEBOOK, supra note 5.Google Scholar
146 «As the text points out, this footnote is unnecessary, since you surely know where to find a good copy of the Declaration of Independence.»Google Scholar
147 «Id.»Google Scholar
148 Associate Justice Shiras was appointed by President Benjamin Harrison. He sat on the United States Supreme Court from 1889 to 1893.Google Scholar
149 The Group of 77 is comprised of developing nations in Africa, Asia, and Latin America, and was formed at the U.N. Conference on Trade and Development in Geneva in 1964. The Group's joint declaration called for substantial income transfers to developing countries from developed ones, and urged a restructuring of the world trading system. LEWIS A PRESNER, THE INTERNATIONAL BUSINESS DICTIONARY & REFERENCE 148 (1991).Google Scholar
150 Mercantilism was the system of economics adopted by major trading nations in the 16th, 17th, and 18th centuries. The premise of the theory was that a nation increased its wealth by exporting goods and collecting bullion in return. Since this system favored foreign trade over domestic trade, state action was deemed essential to accomplish its goals. Economists have pointed out that mercantilism was not beneficial, since it increased a nation's money supply, causing inflation to rise. See COLUMBIA UNIVERSITY PRESS, THE NEW COLUMBIA ENCYCLOPEDIA 1750 (4th ed. 1975).Google Scholar
151 «You already know more about President Lincoln than I could possibly put into a footnote. Making you look down here in an ordinary article would waste both your time and mine.»Google Scholar
152 The Axumite (also spelled “Aksumite”) Kingdom was a very powerful kingdom in northern Ethiopia in the early Christian era. During the period between the 3rd and 6th centuries A.D., the Axumite Kingdom grew to become the largest market of northern Africa. For a discussion of the Axumite Kingdom and its role in Africa's history, see J.D. PAGE, A HISTORY OF AFRICA 36, 53 (1988). «This is an example of a scholarly work on a broad subject, which is a fine source for a reader wishing to follow up on a general historical fact, like the existence of the “Axumite Kingdom.”»Google Scholar
153 PETER SPUFFORD, HANDBOOK OF MEDIEVAL EXCHANGE (1986). «This is an example of a scholarly monograph on a fairly narrow subject, which is a good type of reference to use when footnoting a more narrow fact, like “the debasement of medieval European silver coinage.” If such a scholarly monograph is not available, a more general reference work is also acceptable, of course, so long as it accomplishes the general purpose of making the curious reader more familiar with the subject.»Google Scholar
154 Samuel R. Olken, John Marshall and Spencer Roane: An Historical Analysis of their Conflict over U.S. Supreme Court Appellate Court Jurisdiction, 1990 J.S. CT. HIST. 125. «An author might also choose to include at this point an explanation of who Spencer Roane was, to assist readers unfamiliar with this historical figure.»Google Scholar
155 For example, EDMUND JAN OSMANCZYK, ENCYCLOPEDIA OF THE UNITED NATIONS AND INTERNATIONAL AGREEMENTS (2nd ed., 1990).Google Scholar
156 For example, THE ENCYCLOPEDIA BRITTANICA, in any recent edition.Google Scholar
157 In each instance, there are two presidents bearing the family name: Presidents John and John Quincy Adams, Presidents George H.W. and George W. Bush, Presidents William Henry and Benjamin Harrison, and Presidents Theodore and Franklin Delano Roosevelt. «Note the choice of where to place the footnote – here, at the end. Putting four separate footnotes, one after each name, would spoil the effect of the sentence, by giving away the “answer” and releasing the tension too soon. Note also that with the exception of example (q), all of the examples in this section of this article have merely identified persons, places, or events, and the footnotes have supplied readers with information needed to learn more about these. Although example (q) went beyond this to make a simple assertion, all this footnote needed to do was provide the factual background to allow the reader the context to understand the assertion.»Google Scholar
158 C.f., Robert Frost, The Way Not Taken in LOUIS UNTERMEYER, ed., MODERN AMERICAN POETRY, MODERN BRITISH POETRY 187 (1962).Google Scholar
159 In focusing on the problems student-edited law reviews pose for the orderly development of legal scholarship, possible benefits in the form of experience and credentials gained by student editors will not be considered.Google Scholar
160 An alternative model of securities regulation could be developed through greater reliance upon the market effect of informational intermediaries such as brokers and independent analysts. Such an approach would naturally result in shorter, more expert-oriented prospectuses, but would also require almost every investor to incur additional expenses before investing intelligently.Google Scholar
161 For an extended scholarly discussion on this one remark, readers should turn to ROBERT K. MERTON, ON THE SHOULDERS OF GIANTS: A SHANDEAN POSTSCRIPT (1985), the faceplate of which contains a reproduction of the statement in Newton's own hand.Google Scholar
162 Accord, Alford, When is China Paraguay? An Examination of the Application of the Antidumping and Countervailing Duty Laws of the United States to China and Other ‘Nonmarket Economy’ Nations, 61 S. CAL. L. REV. 79, 100-35 (1987). See also, William Mock, Economic Advantage in East-West Trade: Abandoning Market Fictions in Trade with Nonmarket Economy Countries, 14 N.C.J. INT'L L. & COMM. REG. 55 (1989).Google Scholar
163 Similarly, Stanford economist Paul Krugman has attempted to apply complexity theory – developed primarily to analyze data from the physical sciences, such as weather patterns and patterns of mass extinction – to such economic phenomena as the spatial growth of cities and the temporal patterns of economic downturns. PAUL KRUGMAN, THE SELF-ORGANIZING ECONOMY (1996).Google Scholar
164 For an analysis of arguments on both sides of this issue, see ADAM BEDAU, ed., THE DEATH PENALTY IN AMERICA: CURRENT CONTROVERSIES (Oxford 1997).Google Scholar
165 Variations on the following exchange have occurred to me and have been reported to me by a number of publishing colleagues at several law schools around the United States.Google Scholar
166 For example, consider the different levels and areas of expertise of L. Holmes (a late twentieth-century pugilist), O.W. Holmes, Jr. (a late nineteenth-century and early twentieth-century legal scholar and jurist), and S. Holmes (a fictional nineteenth-century consulting detective). Similarly, in the title of this article, a romantic flower is not the same as the past tense of “to arise,” and neither is the same as the Spanish term for rice, despite superficial aural similarities.Google Scholar
167 See notes 5 and 6, supra.Google Scholar
168 Consider a book. To complete a proper citation, I will need to know the author's name, the title of the book, the date and edition of this copy, as well as the page numbers of any quotation or important ideas that I am referencing. Except for the page numbers, the key information can usually be found on the front and back of the book's title page. Make it a habit to copy these and include these copies in your research files. For law reviews, copy the cover page of the journal and the page of the table of contents that includes the article being referenced. If you develop these habits, you should never have to run back to the library to look up missing information.Google Scholar
169 Gertrude Stein (1874–1946) wrote this passage, not the often misquoted version that formed the basis of this article's title – “A rose is a rose is a rose” – in Sacred Emily, published in 1913. JOHN BARTLETT, FAMILIAR QUOTATIONS (16th ed. 1992).Google Scholar