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High court’s footnotes leaving bigger footprint

Creeping footsteps are associated with fear and danger. But what about creeping footnotes? Should they too be cause for alarm? If so, it’s perhaps time to start ringing the bells, according to a blog post by a former North Carolina Supreme Court justice.

Bob Edmunds, now an attorney with Smith Moore Leatherwood, writes on the firm’s (excellent) Appellate Practice Blog that footnotes[1] seem to be proliferating in Supreme Court opinions.

In 2007, Edmunds found, the court issued 44 written opinions. Of those, 24 had no footnotes at all, while the other 20 contained a collective total of 38 footnotes, many of which were “short and informational.”

In contrast, the court has issued 52 written opinions since January 2017, when Edmunds left the court. Only one was totally free of footnotes, and another had a single footnote, in the dissent. The other 50 opinions had a whopping 178 footnotes buried within them. So something is clearly (ahem) afoot here.

The full post is available on the firm’s blog. (And it contains no footnotes.)

Edmunds says the content of footnotes doesn’t seem to have changed much, and he was untroubled by their spread. He had no easy explanations for the trend, but noted that former Chief Court of Appeals Judge Sid Eagles, who left that court in 2004, was an infamous footnote slayer who would only concur in the result of any opinion that contained one. His vigor likely influenced a whole generation of justices.

Sidebar concurs with Eagles on this point, and will offer this tip for more lucid writing: If you feel the need to relegate something to a footnote, it’s probably not important enough to be worth mentioning in the first place.

[1] One of these things


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