Tuesday, September 19, 2006
Footnote Feature, Pt. 1
Legal writing is a strange creature. Sometimes, the best writing—clean, efficient, passionate—is in the footnotes. My favorite footnote of all time is (in part) reproduced below. It is footnote 163 from Justice Thurgood Marshall’s concurring opinion in Furman v. Georgia, 408 U.S. 238, 368 (1972), which struck down the death penalty statute in Georgia:
“…I agree wholeheartedly with the implication in my Brother POWELL's opinion that judges are not free to strike down penalties that they find personally offensive. But, I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our 'ethical leaders.'
I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. if he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are
executed for no real reason other than to satisfy some vague notion of society's cry for vengeance; and that knowing these things, the people of this country would not care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction and the public would surely accept it. It would be constitutional. As THE CHIEF JUSTICE and Mr. Justice POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system.”
“…I agree wholeheartedly with the implication in my Brother POWELL's opinion that judges are not free to strike down penalties that they find personally offensive. But, I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our 'ethical leaders.'
I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. if he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are
executed for no real reason other than to satisfy some vague notion of society's cry for vengeance; and that knowing these things, the people of this country would not care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction and the public would surely accept it. It would be constitutional. As THE CHIEF JUSTICE and Mr. Justice POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system.”
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My favorite footnote is from a bankruptcy judge in Texas who quoted Billy Madison when he denied a motion for being incomprehensible.
"Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."
http://www.thesmokinggun.com/archive/0306061billy1.html
Kinda goes along with your footnote I guess. But maybe that's just the prosecutor coming out in me.
"Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."
http://www.thesmokinggun.com/archive/0306061billy1.html
Kinda goes along with your footnote I guess. But maybe that's just the prosecutor coming out in me.
# posted by 
: 7:21 PM
: 7:21 PM
prof. torts 2 assigned a great case today (732 sw2d 316). The best part was a quote within the opinion (in talking about getting rid of spousal immunity):
"The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed -- an era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence, cruelty, and murders."
"The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed -- an era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence, cruelty, and murders."
# posted by : 9:28 PM
: 9:28 PM
Interesting, heartfelt and perhaps even poetic. I'd kind of like to see what POWELL said that got MARSHALL all riled up though. Lewis Powell wrote some good decisions and was generally regarded as very much "in tune" with the world at large. He was active in his community, his profession and in the world at large.
But that would require me to look it up.
Speaking of poetic, where's the Haiku you promised?
But that would require me to look it up.
Speaking of poetic, where's the Haiku you promised?
# posted by : 10:35 PM
: 10:35 PM
Speaking of, can someone explain to me the purpose of footnotes such as these? If you mean to say it, why not include it in the body of your statement? Why relegate it to the footnote section to be glossed over like I did with my footnotes during practice court? Or was it meant for the purely academic, who actually search footnotes as though it holds a secret code?? If that is the case, then was the writer afraid of sharing his thoughts with the masses?
"Say what you mean, and mean what you say." If you've got balls, then say it as loud as possible and be damned what anyone else thinks.
"Say what you mean, and mean what you say." If you've got balls, then say it as loud as possible and be damned what anyone else thinks.
# posted by : 12:36 AM
: 12:36 AM
Why do we use footnotes? Are you serious? Ever take a writing class? Or get irritated when an argument wanders?
# posted by : 4:03 AM
: 4:03 AM
9:36--
I wonder the same things with this footnote. It seems to be the very heart of what Marshall is saying in the opinion. I suspect that it started out, though, as a mere aside in response to a single point made by Justice Powell.
I wonder the same things with this footnote. It seems to be the very heart of what Marshall is saying in the opinion. I suspect that it started out, though, as a mere aside in response to a single point made by Justice Powell.
My favorite footnote comes from US v. Murphy (406 F.3d 857). The sentence in the opinion says the defendant called the informant a “snitch b*&ch hoe”
So we would all be clear on the terminology, footnote 1 reads:
"The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch b&*%h “hoe.” A “hoe,” of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing “hoe” to “ho,” a staple of rap music vernacular as, for example, when Ludacris raps “You doin' ho activities with ho tendencies.”
Does it get any better than referencing Ludacris?
So we would all be clear on the terminology, footnote 1 reads:
"The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch b&*%h “hoe.” A “hoe,” of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing “hoe” to “ho,” a staple of rap music vernacular as, for example, when Ludacris raps “You doin' ho activities with ho tendencies.”
Does it get any better than referencing Ludacris?
# posted by : 9:49 AM
: 9:49 AM
IPlawPerson--
Justice Powell had suggested that Marshall's conclusion that the truth about racial disparities in capital sentencing would shock people was speculative.
Anyways, the context is made a little clearer by the first part of the opinion, which I excised:
"Mr. Justice POWELL suggests that this conclusion [of the facts of capital sentencing shocking the public] is speculative, and he is certainly correct. But the mere recognition of this truth does not undercut the validity of the conclusion. Mr. Justice POWELL himself concedes that judges somehow know that certain punishments are no longer acceptable in our society; for example, he refers to branding and pillorying. Whence comes this knowledge? The answer is that it comes from our intuition as human beings that our fellow human beings no longer will tolerate such punishments.
Justice Powell had suggested that Marshall's conclusion that the truth about racial disparities in capital sentencing would shock people was speculative.
Anyways, the context is made a little clearer by the first part of the opinion, which I excised:
"Mr. Justice POWELL suggests that this conclusion [of the facts of capital sentencing shocking the public] is speculative, and he is certainly correct. But the mere recognition of this truth does not undercut the validity of the conclusion. Mr. Justice POWELL himself concedes that judges somehow know that certain punishments are no longer acceptable in our society; for example, he refers to branding and pillorying. Whence comes this knowledge? The answer is that it comes from our intuition as human beings that our fellow human beings no longer will tolerate such punishments.
That's "Person of IP Law" to you.
Still seems to be a little unfair not to at least give us a link to Powell's opinion.
In any event, for the most part I agree with the "no footnotes" rule, as does Justice Breyer. The footnote in Palko dealing has lead to all sorts of confusion, for instance.
Footnotes are good for explaining rap music quotes or other items not really related to the case at hand. Trademark decisions are full of such footnotes. Judges like our cases because they're often weird.
Still seems to be a little unfair not to at least give us a link to Powell's opinion.
In any event, for the most part I agree with the "no footnotes" rule, as does Justice Breyer. The footnote in Palko dealing has lead to all sorts of confusion, for instance.
Footnotes are good for explaining rap music quotes or other items not really related to the case at hand. Trademark decisions are full of such footnotes. Judges like our cases because they're often weird.
# posted by : 10:22 AM
: 10:22 AM
*sigh* Clearly my social sciences background has forever warped my notions of the role of footnotes. I see them as preservers of elegance in argument, artistry in rhetoric, and an absolute necessity for any writing necessitating cognitive complexity. How else can we have opinions that speak "only" to a specific case or controversy while also engaging in a meta-dialogue with the whole body of law?
If we had no footnotes we would have to invent them fn1 (or use some sad substitute, such as the ever-distracting parenthetical). Internal citations are even worse. See http://www.yale.edu/lawweb/jbalkin/articles/foot1.htm (discussing both sides of the footnote jihad).
fn1: I paraphrase a famous, but obviously incorrect, quote regarding the role of the United Nations. Footnotes are inherently important given the necessity of verbalized thought, unlike the U.N., which promotes verbalized lack of thought.
If we had no footnotes we would have to invent them fn1 (or use some sad substitute, such as the ever-distracting parenthetical). Internal citations are even worse. See http://www.yale.edu/lawweb/jbalkin/articles/foot1.htm (discussing both sides of the footnote jihad).
fn1: I paraphrase a famous, but obviously incorrect, quote regarding the role of the United Nations. Footnotes are inherently important given the necessity of verbalized thought, unlike the U.N., which promotes verbalized lack of thought.
# posted by : 3:00 PM
: 3:00 PM
Somehow, deep down, I know this is really a warm up to the death penalty arguments that will inevitably arise on this blog.
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# posted by : 7:38 PM
: 7:38 PM << Home
