In Grammer Pole of the Weak — yes, “Grammer” is intentionally misspelled, as are “Pole” and “Weak” — we consider questions of English grammar and usage. Last week, for example, we looked at
a fun an interesting topic: the adjectival use of “fun” (which over 85 percent of you support, even if traditionalists frown upon it).
But we’d like the column’s purview to extend beyond grammar and usage. We’ll also tackle issues related to legal writing, in terms of both style and mechanics. Feel free to email us with suggested subjects for future Grammer Poles.
Today’s subject is one on which there’s a split of authority, between two co-authors of a leading legal writing book….
The book is Making Your Case: The Art of Persuading Judges (affiliate link), and the co-authors are Justice Antonin Scalia and Bryan A. Garner. We’ve previously talked about their disagreement over gender-neutral language.
Although they’re usually on the same page, Justice Scalia and Bryan Garner disagree on a few other matters. They part ways, for example, on the controversial matter of substantive footnotes. Here’s a concise summary, from the Florida Bar Journal:
“Swear off substantive footnotes — or not.” This communicates an individual choice.
Garner makes his argument. “Put no substantive point in a footnote — none, at least, that you consider important to your argument.”
Garner believes that footnotes should be used for citations, not substance.
Scalia refutes Garner’s advice as “too categorical.” He continues: “I know of no court that will categorically not consider substantive footnotes. The citations contained in my coauthor’s scary footnote pertain to the raising of fundamentally new claims or new arguments — for example, making a Due Process Clause argument in a footnote when all the rest of the brief relies on the Sixth Amendment. That shouldn’t be done anyway. But providing useful . . . support for an argument made in text is quite different. And more different still is a footnoted response to a weak argument made by the other side. These footnotes may not be read; but if read they will be considered.”
Personally I’m with Justice Scalia. I like substantive footnotes because they’re a perfect place for material that’s supportive of, but not central to, your main argument.
On the other hand, if something isn’t central to your argument, perhaps it should simply be cut from the brief entirely. Maybe my affection for substantive footnotes just reflects the fact that I am
a pretentious d-bag excessively fond of interesting or amusing digressions. [FN1]
Readers, what do you think?
[FN1] I was originally going to write “fun digressions,” but thought better of it.
Earlier: Prior Grammer Poles of the Weak