From 'Goodbye to Law Reviews' by Fred Rodell in (1936) 43 Virginia Law Review 38–45
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so- called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly. ...
Then there is the business of footnotes, the flaunted Phi Beta Kappa keys of legal writing, and the pet peeve of everyone who has ever read a law review piece for any other reason than that he was too lazy to look up his own cases. So far as I can make out, there are two distinct types of footnote. There is the explanatory or if-you-didn’t-understand-what-I-said-in-the-text-this- may-help-you-type. And there is the probative or if-you’re-from-Missouri- just-take-a-look-at-all-this type.
The explanatory footnote is an excuse to let the law review writer be obscure and befuddled in the body of his article and then say the same thing at the bottom of the page the way he should have said it in the first place. But talking around the bush is not an easy habit to get rid of and so occasionally a reader has to use reverse English and hop back to the text to try to find out what the footnote means. It is true, however, that a wee bit more of informality is permitted in small type. Thus “It is suggested” in the body of an article might carry an explanatory footnote to the effect that “This is the author’s own suggestion.”
It is the probative footnote that is so often made up of nothing but a long list of names of cases that the writer has had some stooge look up and throw together for him. These huge chunks of small type, so welcome to the student who turns the page and finds only two or three lines of text above them, are what make a legal article very, very learned. They also show the suspicious twist of the legal mind. The idea seems to be that a man can not be trusted to make a straight statement unless he takes his readers by the paw and leads them to chapter and verse. Every legal writer is presumed to be a liar until he proves himself otherwise with a flock of footnotes.
In any case, the footnote foible breeds nothing but sloppy thinking, clumsy writing, and bad eyes. Any article that has to be explained or proved by being cluttered up with little numbers until it looks like the Acrosses and Downs of a cross-word puzzle has no business being written.
