D.C. Circuit Review – Reviewed: A New Thought on the In-Line Versus Footnote Citation Debate

by Aaron Nielson — Friday, July 20, 2018@Aaron_L_Nielson

While the world has focused on other things this week, a debate has engulfed a narrow, very nerdy slice of Twitter of which I am pleased to be part: Should citations in legal documents bein-lineor in the footnotes? We don’t shy away from hard issues here at Notice & Comment. So I’ve decided to toss a new option into the debate — let’s call it Option 3.

As background, here is an image Bryan Garner has used to illustrate the two types of citation formats:

Screen Shot 2018-07-20 at 11.08.07 AM

In this comparison, the footnote brief looks better. But I don’t think this is the best example of “in-line” citations. Here is an example from a brief filed a few years ago in the Supreme Court*:

Screen Shot 2018-07-20 at 11.12.01 AM

And here is what it would look like with a footnote style:

Screen Shot 2018-07-20 at 1.41.23 PM

Between those two, I vote for in-line citations.

But what about Option 3? Why don’t we keep in-line citations but change our treatment of “short cites”?

Here is an example of what I mean. This comes from an opinion from 2016:

Screen Shot 2018-07-20 at 11.27.37 AM

It is full of “short cites” — citations to decisions cited earlier. Here is the problem. For the Supreme Court cases, I can tell from the short cite which court issued the opinion — “U.S.” or “S. Ct.” means the Supreme Court. But I can’t tell from “F.3d” which circuit court issued the decision. And there are no dates.

This is a problem! When I was clerking (increasingly long ago), I had to review many, many briefs. When I was reading a legal document, I needed to know a few things: (1) what the document says the law is (obviously); (2) which court issued the decision (I cared a lot more about binding precedent than persuasive authority); and (3) when the decision was issued (to know whether to worry about intervening authority). With these concerns in mind, in-line cites are better than footnotes cites; I didn’t have to constantly look down for purposes of points (2) and (3). Indeed, I hated — hated — footnote citations for making me constantly move my eyes up and down.

That leads me to Option 3: Shouldn’t short cites also include a parenthetical behind them reminding the reader which court issued the decision and when it was issued? So the paragraph would read like so:

Screen Shot 2018-07-20 at 1.45.15 PM

Wouldn’t that be wonderful? No more having to remember which court said what and when; it would be right there, easy to find. And to the extent that efficiency is beautiful, this is very aesthetically pleasing. So come rally under my Option 3 banner (assuming I thought of this first): Keep In-Line Citations But Add Even More To Them.

This week the D.C. Circuit decided a lot of cases. So, in a variation of the * Game, I’m going to pull a short cite from each opinion; not only will you be able to imagine how much better the paragraph would be under Option 3, but you can guess what the opinions are about. It’s fun — well, kind of fun.

Here goes:

United States v. Mattea:

Screen Shot 2018-07-20 at 12.30.57 PM

Note: Unless this is your field, you can probably skip this one; lots of other cases this week.

Judicial Watch, Inc. v. DHS:

Screen Shot 2018-07-20 at 12.32.17 PM

Note: If you follow FOIA, this is an important decision. All three judges on the panel (Judge Rogers = majority, Judge Pillard = concurrence, and Judge Srinivasan = dissent) wrote. Read it.

Big Bend Conservation Alliance v. FERC:

Screen Shot 2018-07-20 at 12.33.50 PM

Note: Judge Katsas is a great addition to the Court. That said, although in a normal week I’d urge you to read this one, because this week overflows with law, you may have to let it pass.

Matson Navigation Company, Inc v. DOT:

Screen Shot 2018-07-20 at 12.36.23 PM

Note: Judge Rogers drew a tough opinion assignment; the Court’s jurisdictional analysis is tricky. If you see Judge Rogers, tell her ‘thank you’ for diving into a complicated case.

Noble v. Dunn:

Screen Shot 2018-07-20 at 12.38.45 PM

Note: Judge Henderson cites to Judge Kavanaugh three times.

American Society for Testing v. Public.Resource.Org, Inc.:

Screen Shot 2018-07-20 at 12.46.01 PM

Note: Read this opinion; that’s all I have to say. Read it. Very important.

Peck v. Selex Systems Integration:

Screen Shot 2018-07-20 at 12.51.08 PM

Note: There is a lot to take in here from Judge Srinivasan. That said, in a week like this, you may have to let this one pass too.

American Hospital Association v. Azar:

Screen Shot 2018-07-20 at 12.52.46 PM

Note: See Big Bend Conservation Alliance, supra.

Citizens Ass’n of Georgetown v. FAA (Reissued):

Screen Shot 2018-07-20 at 12.02.52 PM

Note: This originally was issued a few months ago; I’m not sure what changed — if you know, please explain in the comments.

Natural Resources Defense Council v. EPA:

Screen Shot 2018-07-20 at 12.06.49 PM

Note: Extended discussion of Chevron by Judge Griffith. Plus environmental law.

United States v. Smith:

Screen Shot 2018-07-20 at 12.09.42 PM

Note: This is an important case for sentencing issues and, because it was written by Judge Millett, fun to read. Here is a sample: “That dog will not hunt. The government admits that it never raised this issue below. So the argument is forfeited. Doubly so because the government never challenged the applicable Guidelines range at the time of the original sentencing ….” And look at the * footnote: “Judge Kavanaugh was a member of the panel at the time the case was argued, but did not participate in this opinion.”

Kaufman v. Nielsen:

Screen Shot 2018-07-20 at 12.12.00 PM

Note: This is another interesting opinion by Judge Griffith; I’m not sure how often it will come up (for reasons you will find out when you read it), but is fascinating to read and discusses Chevron too.

Salazar v. District of Columbia:

Screen Shot 2018-07-20 at 12.18.16 PM

Note: This is a Civ Pro feast by Judge Millett; if you care about Rule 60(b) — and you should — give it a read.

Kaplan v. Hezbollah; Kaplan v. Central Bank of Iran:

Screen Shot 2018-07-20 at 12.15.42 PM

Note: Students, there is a case comment to be written here. Trust me. Judge Srinivasan covers a lot of ground; read it.

Oglala Sioux Tribe v. NRC:

Screen Shot 2018-07-20 at 12.21.11 PM

Note: The is another important opinion. If you practice environmental law, or think about administrative remedies, you have to read Chief Judge Garland’s opinion. There is a case comment lurking in this one too, especially about remedies.

And finally, Association of American Railroads v. DOT:

Screen Shot 2018-07-20 at 12.29.18 PM

Note: We’ve covered Amtrak here many times; expect an en banc petition and probably a cert petition too. Read both Judge Millett’s majority opinion and Judge Tatel’s dissent. I would write up a full post about this one, but I’m pretty sure I will get another chance.

Wow. There is a lot of law this week — many of these cases are important and, for certain, will be cited many times in the future. When they are, won’t Option 3 make a lot of sense?

 

* If you wanted to see a citation, wouldn’t it have been really annoying to have to look down at this footnote?

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

3 thoughts on “D.C. Circuit Review – Reviewed: A New Thought on the In-Line Versus Footnote Citation Debate

  1. anonymous internet commenter

    Minor changes on page 16, prompted by a petition for rehearing.

    From the docket:

    PER CURIAM ORDER [1741663] filed upon consideration of petitioners’ petition for panel rehearing filed on May 9, 2018 [1730110-2], and the supplement thereto, it is ORDERED that the petition be granted for the limited purpose of amending the March 27, 2018 opinion as follows: Slip Op., p.16, ¶ 2, line 6, delete “2011″ after the word “FAA’s” and insert in lieu thereof “efforts to implement the”; and delete the word “group” and insert in lieu thereof the word “group’s”. The sentence now reads: “Quite to the contrary, the evidence indicates that the transition to LAZIR was set in motion by the FAA’s efforts to implement the working group’s suggestions and flowed directly from the agency’s December 2013 approval of the D.C. Metroplex. See supra at 4-8. Before Judges: Henderson, Tatel, and Edwards. [15-1285] [Entered: 07/20/2018 11:20 AM]

    Reply
  2. Jack Townsend

    Thanks for your comments on footnotes. I have a self-published book which comes in two editions — one for students (no footnotes) and one for practitioners (same as the student edition except with the footnotes, which now number over 3700). I agree that footnotes are a distraction, which is why I strip them out of the student edition. I include in the text all of the key cases, statutes and other stuff, but relegate the non-student-essential stuff to the footnotes (stripped out of student edition). Much of the content in the footnotes practitioners might find useful. Some comment is distractions.

    I have an appendix in both editions on footnotes. This is where I do a frolic and detour on footnotes. Some excerpts from that Appendix:
    “Encountering [a footnote], is like going downstairs to answer the doorbell while making love.” Attributed to Noel Coward in Arthur A. Austin, Footnotes as Product Differentiation, 40 Vand. L. Rev. 1131, 1152 (1987); NPR Weekend Edition Transcript, “The Possible Demise of the Footnote” (Sept. 7, 1996). The attribution to Coward may be imperfect, as Prof. Austin develops in a subsequent, appropriately long, footnote. See Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009, 1012 n.20 (1990). Still, regardless of who said or should have said it, the point is well made.
    ** Over the years the footnote has regularly provided a safe refuge for untenable hypotheses. Writers are inclined to behave as if they will be held less accountable for indiscretions committed below the text than in it. . . . Lunacy in small print is lunacy nonetheless, and it is particularly reprehensible when it is not even amusing.
    Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009 (1990) (as an article title footnote, with the other article title footnotes omitted), quoting Bowersock, The Art of the Footnote, 53 Am. Scholar 54, 61 (1983/1984). To the extent that I have lunacy here, I hope it is at least amusing.
    “Sometimes, he wrote, the only places to find any individuality or whimsy in the pages of Supreme Court decisions is on their bottoms.” David Margolick, The Footnote Fetish in Judicial Opinions: A Weather Vane of High Court Philosophy, The New York Times, Jan. 4, 1991 (attributing statement to Tony Mauro).
    “Happiness is a long footnote. Happiness for whom? For him who writes it?” Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009, 1016 (1990).

    Reply

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