Class 7
Footnotes and the
Ethical Use of Borrowed
Materials
1
Remember to
Buy Milk
2
The academic legal writer’s
prayer:
Oh, Lord:
May my text be clear.
May my footnotes be many.
May my analysis be original.
3
“Encountering [a FN] is like going
downstairs to answer the doorbell while
making love.”
-- Elizabeth Fajans and Mary R. Falk,
Scholarly Writing for Law Students 98 (3d
ed. 2005), quoting Noel Coward.
4
Why Use FNs in Scholarly Writing?
Three primary
functions:
• Authority.
• Attribution
• Textual FN to discuss
marginal issues.
5
Authority
You must include an authority footnote to support
every proposition of law in your text except if you
are making an original argument.
Example 1: Police must inform suspects in custody
of their constitutional rights before questioning
them.22
----------22
Miranda v. Arizona, 384 U.S. 436 (1966).
6
Example 2: Lower courts have taken different
approaches to requiring Miranda warnings for
subjects already in prison.22
----------------------22 Compare Smith v. Texas, 123 F.3d 812 (2d
Cir. 1988) (Miranda warnings required) with
Sanchez v. Lawrence, 234 F.3d 567 (3d Cir.
1999) (Miranda warnings not required).
7
You must include an authority footnote to
support every proposition of fact in your text.
Example: China has over twenty million
privately-owned cars.24
----------
24China’s
Car Culture, People’s Daily Online,
Feb. 28, 2007, at
http://www.peopledaily.com/12345.htm.
8
Don’t quote the source “out of context” or otherwise
create an inaccurate or misleading impression of
the source you cite.
Bush campaign chairman: Kerry thinks that the war
on terrorism is like a “nuisance.”
Kerry: ''We have to get back to the place we were,
where terrorists are not the focus of our lives, but
they're a nuisance…. [W]e're never going to end
[terrorism]…. But we're going to reduce it … to a
level where it isn't on the rise. It isn't threatening
people's lives every day, and fundamentally, it's
something that you continue to fight, but it's not
threatening the fabric of your life.''
9
Choose authoritative authority:
Wrong: In the United States, “separation of investigation
and adjudication” is required by the Administrative
Procedure Act. Yang Tao, A Comparative Study of
Administrative Law, 5 Modern L. Rev. 555, 556 (2005).
Actual Statute Doesn’t Use Those Words: The
administrative law judge presiding over a hearing on the
record must not be supervised by or responsible to “an
employee or agent engaged in the performance of
investigative or prosecuting functions for an agency.” 5
U.S.C. 554(d) (2007).
What went wrong?
10
Attribution
Example: The best solution to the problem of
whether prisoners have a right to Miranda
warnings is to require them only for inmates
upon whom official suspicion has focused.22
-------------22 Steve Finzio, Miranda’s Role in Prison
Crimes, 59 U. Chi. L. Rev. 719 (1992).
Rationale: If you borrowed this idea from
another author and paraphrased his article, you
need a citation to give proper attribution.
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• Scholarly papers
build upon &
advance ongoing
legal debates.
• So, reliance on
existing scholarly
commentary is
common &
expected.
• Attribution FNs
acknowledge
that.
12
Even unintentional failure to
provide attribution
• Disrespects the author
whose words or ideas you
borrow.
• Misrepresents to reader that
work is your own.
13
Rules for Attribution
1. Provide a footnote for ANY borrowed
language or ideas, whether quoted
or paraphrased.
2. Introduce borrowed material with
some reference to its source. E.g.:
“One recent commentator points out
that….”
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3. When you borrow 7 or more consecutive
words, use quotation marks.
– Where the wording is distinctive, use
quotation marks for even a single word.
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4. Put borrowed text of 50 words or
more in an indented, single-spaced
block quote (no quotation marks).
–Bluebook Rule 5.1.
According to Professor Keller, who has emphasized blah blah
there is more to blah blah:
Blah blah blah blah blah blah blah blah blah
Blah blah blah blah blah blah blah blah blah
Blah blah blah blah blah blah blah blah blah
Blah blah blah blah blah blah blah blah blah12
This view is shared by many from the law and economics and
blah school…..
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5. If you read Source A that cites Source B, then cite
both.
For e.g., if you read this in an article by Yang Tao: The
Administrative Procedure Act requires separation of
investigation and adjudication functions.
Then check the statute for yourself, and then cite to both:
The Administrative Procedure Act generally prohibits
supervision of an administrative law judge by an official
involved in the agency’s investigation or prosecution
functions.24
--------------------24 5 U.S.C. 554(d) (2007), discussed in Yang Tao, A
Comparative Study of Administrative Law, 5 Modern L.
Rev. 555, 559 (2005).
17
Textual FNs
Example: One federal court has taken the position
that prisoners only have a right to counsel once an
official criminal investigation has been initiated.22
-------22 State v. Bird, 323 F.2d 91 (S.D.N.Y. 1992). Spain
also guarantees prisoner access to defense
lawyers only after an official criminal investigation
has been initiated. C.P. § 667.
Rationale: If you want to make a point of only
marginal importance to your claim, you might put it
in a textual FN.
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For example:
1. Provide an illustration of a point made
in the text.
2. Define a term used in the text.
3. Clarify or qualify an assertion made in
the text.
4. Raise a potential complication.
5. Quote language paraphrased in the
text.
19
Hybrid: The Parenthetical
Example:
24
Smith v. Jones, 100 U.S. 97, 100 (1933)
(examining the historical roots of the First
Amendment’s free press clause).
20
Introductory Signals
(Bluebook Rule 1.2)
(in Citation & Quotation PPTs on
lawandborder.com)
21
Signal Exercises
After Zhang was arrested, the New York News
proceeded to publish his name.35
--------------------35_____
Sam Waters, Investigation into the
Zhang Jinzhu Traffic Accident, New York News,
May 2, 1999, at 1, available at
http://www.nynews.net/8080.htm.
22
Some journalists argue that media should
reveal local wrongdoing when it suits
Party interests but remain silent if such
revelations could threaten stability. 22
--------22 E.g., Lu, Escape, supra, note 128.
_____ Yang, Public Opinion Supervision
Versus “Stability” Work, supra, note 129
(mocking media restrictions for purposes
of maintaining stability).
23
Although they lack legally prescribed roles,
China’s mass work offices, in some
respects, serve in a position similar to a
state ombudsman in other nations—in
particular in Scandinavia—with broad
powers to investigate citizens’ complaints.43
------------43 ____1 William Wade et al., Administrative
Law: The Problem of Justice, 353–60 (1991)
(discussing role of ombudsman in Sweden).
24
There has been significant criticism in China of the
media’s continued close ties to the Party-state.22
------------------------------------------22 _____ Chen Yuru, Jinyou Caifang Quan Shi Bugou
De [Just Having the Right to Report Is Not Enough],
Fazhi Ribao Wangluo Ban [Legal Daily Online], May 14,
2001, at http://www.legaldaily.com.cn/17551.htm
(contending that media have grown from being
exclusively propaganda instruments to organizations
having a range of roles in society).
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See Handout—Fajans & Falk
Exercise 6.1
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