I am working on a legal article tonight. The issue I am concerned with is whether I need to support everything I say with some citation, usually in a footnote.
In the conventions of legal scholarship, almost every point we make in a brief must have a citation, often in footnotes. Really?
When I was at DOJ Tax Appellate, I suggested (probably in a bullshit session) that we have a convention to use a citation which I call “O.P.” which stood for obvious proposition. Why should we have to cite something for the observations that are obvious? For example, if we have to say that the sun rises in the East, do we really have to cite something for the proposition? Could we not just say: "The sun rises in the East. O.P."?
My suggestion was not formally presented or formally rejected by the powers that be in the Appellate Section.
In some sense, the concept may be implemented by some scholars and judges in writing. They just state the proposition and move on. Nevertheless, in my writings, I continue to struggle with the issue of whether I need to cite authority for such obvious propositions.
My problem, since I am a prolific footnote writer (aka abuser), is that, if I have to cite such authority, I would do so in a footnote. As we all know from reading footnotes (particularly my footnotes), footnotes are terrible temptations to wander and distract.
Now, what does this have to do with Federal Tax Procedure? Not much except to say that I have some 4600 footnotes in my Federal Tax Procedure (2021 Practitioner Ed.). Some of those footnotes, perhaps many, deal with obvious propositions that just logically extend from the information in the text. I do that because I think that more specific citation than O.P. might be helpful to practitioners even though, in many cases, the proposition is obvious from the discussion in the text. (I don't have a citation for that last statement.)
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