Wednesday, July 28, 2021

On Footnotes and the Demise of Appendix C from FTPB (7/28/21)

For the 2021 editions of my Federal Tax Procedure Book (Practitioner and Student editions), I decided the omit Appendix C where I digressed on footnotes.  I originally did that because footnotes in the Practitioner Editions are many and sometimes digressive in nature and wanted to add some humor on the subject.  I think the Appendix has outlived its use, if indeed it ever even had any use.  So, I am omitting the Appendix from the 2021 editions (which, I hope will be out in final by the end of next week.

I thought, however, that for those few misguided souls who liked such things, I would put the Appendix out here both in a cut and paste to the blog and a link to a pdf file, here.  (Those who review the pdf will see that the page number for the current working draft with Appendix C is 1,046, which will decrease to 1,043 when I strip this Appendix.)


In earlier versions, I included as a footnote a long diversion on footnotes.  The diversion got out of control (certainly too many words).  Accordingly, since I was really liked the thought of a diversion on footnotes, I decided to offer the diversion as an Appendix at the end of the entire text, a destination not to be reached or easily ignored by many readers of the text.

In an earlier article, John A. Townsend, Judge Posner's Opinion in Kikalos, 108 Tax Notes 593 (Aug. 1, 2005), I had a footnote on footnotes and offer it here but have significantly revised it. I don’t bother to indent it to show that I am quoting):

It was reported in 1999 that Judge Posner had never used a footnote in a judicial opinion. Lawrence Lessig, The Prolific Iconoclast, The American Lawyer (December 1999). I have not attempted empirical research, but I don't recall having seen a footnote in his opinions. I surmise that Judge Posner thinks that, if the point is worthy of the distraction of a footnote, the point can be concisely made perhaps with less distraction in the text.  Other noted jurists such as Justice Breyer and Circuit Judge Abner Mikva also tend to avoid footnotes.  Justice Neil Gorsuch Is No 'Footnotephobe' (National Law Journal Supreme Court Brief 7/3/19).  And Justice Scalia claimed not to read footnotes, but certainly was not averse to authoring footnotes.  William Jay, Tribute: The Justice who said he hated writing (SCOTUSBlog 3/4/16).

The debate over the use of footnotes in judicial opinions raged for a while but now seems to be in a state of relative quiescence; I suspect that all that could be said was said and said often.  (I would have footnoted some representative articles from the debate, I have made the decision in this Appendix to avoid footnotes while I digress on footnotes.  I cite but one article that will lead you where you want to go to pursue the matter further. Edward R. Becker, In Praise of Footnotes, 74 Wash. L. Q. 1 (1996).)

And I should at least mention that tax lawyers should like judicial opinion footnotes for they occupy a large part of our time and mental resources such as they are (e.g., Crane v. Commissioner, 331 U.S. 1, 14 n.37 (1947)), for which we can bill clients and often collect. Judge Posner's preference for the footnoteless opinion may be aesthetically pleasing (at least, provided that the string cites in the text are not too distracting), but, if widely emulated, threatens a not-insubstantial part of tax lawyer’s livelihood. 

I did have occasion to confront this footnote issue in my teaching.  For some years, I have prepared my own tax procedure and tax crimes texts.  For all the reasons Judge Posner cites, my early versions of the tax procedure text had no footnotes.  My concept, I think like Judge Posner's, was to avoid the distractions of footnotes.  After a couple of no footnote editions, I have since fully populated my working draft for each new edition with footnotes–many footnotes–which are helpful to me to help me articulate (in many cases) the basis for the statement in the text that I footnote.  In addition, I found that my footnotes in the working draft could be help to practitioners needing more nuance than students.  I therefore continue to provide my students a footnoteless version of the text so that they are not distracted.  I do that by stripping out the footnotes from the final of the working draft.  I then publish a complete footnoted version of the final of the working draft for use by practitioners. I do note, however, that sometimes in the footnotes, I stray.

Now I stray in this Appendix (an oft-cited abuse of footnotes), to offer some thoughts of others on footnotes. I offer the following from others:

“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).

I just picked up this little diversion in the footnote of a Ninth Circuit opinion (Estate of Saunders v. Commissioner, 745 F.3d 953, 962 n. 8 (9th Cir. 2014)):

n8 In a footnote in its opening brief, and again on reply, the Estate contends that the tax court contravened the Tax Court Rules of Practice and Procedure. Arguments raised only in footnotes, or only on reply, are generally deemed waived. City of Emeryville v. Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010); Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam). We therefore decline to address this argument.

Which, I suppose, is a good rule if judges like Justice Scalia don’t usually read footnotes anyway.

One final diversion this time on notes rather than footnotes, but perhaps it is the same phenomenon if they divert attention.  In the movie Amadeus, the emperor stumbles to assess Mozart’s opera and comes up with the statement that the opera has “too many notes.”  

MOZART: I don't understand. There are just as many notes, Majesty, as are required. Neither more nor less. 

EMPEROR: My dear fellow, there are in fact only so many notes the ear can hear in the course of an evening. I think I'm right in saying that, aren't I, Court Composer? 

SALIERI: Yes! yes! er, on the whole, yes, Majesty. 

MOZART: But this is absurd! 

EMPEROR: My dear, young man, don't take it too hard. Your work is ingenious. It's quality work. And there are simply too many notes, that's all. Cut a few and it will be perfect. 

MOZART: Which few did you have in mind, Majesty? 

EMPEROR: Well. There it is.

Maybe I offer too many footnotes but at least students who have the nonfootnoted version will be spared that.  And those who have the footnoted version can offer me suggestions as to which footnotes I should leave out.

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