It has become fashionable to deride the use of footnotes in judicial opinions and to call for their elimination. Footnotes, it is alleged, interrupt the flow of the opinion, distract the reader, add to the opinion’s length and complexity, and too often diminish the opinion’s clarity by qualifying and hedging its holding. The clarion call to dispense with footnotes comes from impressive quarters, including several of America’s most respected judges-Justice Stephen Breyer, Chief Judge Richard Posner, and former Chief Judge Abner Mikva. These able and thoughtful jurists have sustained their vows of abstinence and have written footnoteless opinions for a number of years.
I, however, refuse to give up footnoting. In fact, I do not consider it a vice. As a federal judge for a quarter century, I believe in footnotes and am convinced that the judicious use of footnotes allows judges to communicate most effectively with their diverse audiences.