Journal of Legal Education (Association of American Law Schools)

Austin, Regina

English

A Dose of Color, A Dose of Reality:  Contextualizing Intentional Tort Actions with Black Documentaries

Papke, David Ray

Book Review of The Rooster Bar by John Grisham

Brooks, John R.

Curing the Cost Disease: Legal Education, Legal Services,and the Role of Income-Contingent Loans

Duncan, Susan Hanley

95
Reducing Gender Inequity in the 
Academy and the Legal Profession
Susan Hanley Duncan
Thank you for the opportunity to be part of such a distinguished discussion 
group and to offer my observations and perspectives on this important topic, 
Building Bridges Across Curricular and Status Lines: Gender Inequity Throughout the Legal 
Academy. Others in this group will more eloquently describe the challenges 
women face in the academy. I, however, want to acknowledge that issues in 
the academy are similar to those women face every day in our profession. We 
educate and train women who will experience some of the challenges I am 
going to talk about when they graduate, and thus we must prepare them for 
that reality. To that end, some of my comments focus on ways to improve 
gender inequity both in the academy and in the legal profession.
Before addressing the challenges, we should set the scene. Currently, 35% of 
law school deans are female.1 In 2015 we had fifty-nine women deans,2 and now 
at least seventy, with a record number hired in 2019.3 Women hold 39.9% of the 
law professoriate.4 This statistic roughly corresponds to the 38% of those in the 
legal profession who are women.5 For the first time in 2017, women enrolled 
in law schools outnumbered men.6 In 2018, women make up 51.42% of the 
1. Karen Sloan, More Minority Women Ascend to Law Dean Jobs, Nat. Law J. (Jan. 10, 2019), 
https://www.law.com/nationallawjournal/2019/01/10/more-minority-women-ascend-to-
law-dean-jobs/?fbclid=IwAR2-5ymSbZeehfFNK2t18G1LyXGcF5HgLhqHsbmvUV9H38
jV-JMbINqv1MQ.
2. Female Deans Taking Charge, Law.com (June 22, 2015), https://www.law.com/nationallawjournal/
almID/1202730008416/female-deans-taking-charge/. 
3. Id.
4. Am. Ass’n of Law Sch., Legal Education at a Glance: 2019 (2020), https://www.aals.org/wp-
content/uploads/2020/02/2019-Legal-Education-At-a-Glance.pdf. 
5. Commission on Women in the Profession, American Bar Association, A Current Glance at 
Women in the Law (2019) (citing the United States Census Bureau), https://www.americanbar.
org/content/dam/aba/administrative/women/current_glance_2019.pdf.
6. SectioN of LegaL educ. aNd admiSSioNS to the Bar, am. Bar aSS’N, 2017-2018 aNNuaL 
report: the Year iN review 17 (2018), https://www.americanbar.org/content/dam/aba/
publications/misc/legal_education/2017-2018-annual-report-legal-ed-final.pdf.
Journal of Legal Education, Volume 69, Number 1 (Autumn 2019)
Susan Hanley Duncan is Dean and Professor of Law at University of Mississippi 
School of Law
96 Journal of Legal Education
summer associates and 45.91% of the associates.7 In the 200 largest firms of 
2017, women constituted 25% of the law firm governance committee members, 
which is up from 20% over the past five years.8 Likewise, women equity partners 
increased from 15% to 19%.9 The number of women who are general counsels 
in Fortune 500 companies also increased from 26.4% to 30% from 2018 to 
2019.10 Finally, women hold 27% of federal and 34% of state judgeships.11
Despite these increases in our numbers, not all the news is good. For 
example, various studies find that:
• Salaries still lag. In 2015, women lawyers were paid 89.7% of what their 
male counterparts received.12 A 2019 study shows the median weekly 
salary gap growing, with males making $2202 compared with females 
making $1878 (85.2%).13
• 25% of women lawyers surveyed reported that they had encountered 
unwelcome sexual comments, physical contact, and/or romantic 
advances in the workplace.14
• 70% of all lawyers surveyed reported that they had experienced sexist 
comments, stories, or jokes.15
7. Nat’L aSSo’N for L. pLacemeNt, 2018 report oN diverSitY iN u.S. Law firmS 9 (2019), 
https://www.nalp.org/uploads/2018NALPReportonDiversityinUSLawFirms_FINAL.
pdf.
8. deStiNY peerY, NawL 2017 aNNuaL SurveY report: the promotioN aNd reteNtioN of 
womeN iN Law firmS 6, https://www.nawl.org/d/do/663.
9. Id.
10. commiSSioN oN womeN iN the profeSSioN, americaN Bar aSSociatioN, a curreNt 
gLaNce at womeN iN the Law 3 (2019), https://www.americanbar.org/content/dam/aba/
administrative/women/current_glance_2019.pdf.
11. daNieLLe root, et aL. ctr. for am. progreSS, BuiLdiNg a more iNcLuSive 
federaL JudiciarY (Oct. 3, 2019), https://www.americanprogress.org/issues/courts/
reports/2019/10/03/475359/building-inclusive-federal-judiciary/. NawJ, 2019 uS State 
court womeN JudgeS, https://www.nawj.org/statistics/2019-us-state-court-women-judges 
(last visited Oct. 6, 2020).
12. U.S. Dep’t of Lab., Household Data Annual Averages, Table 39: Median Weekly Earnings of Full-Time 
Wage and Salary Workers By Detailed Occupation and Sex, https://www.bls.gov/cps/aa2015/cpsaat39.
htm (last modified Feb. 10, 2016). 
13. U.S. Dep’t of Labor, 2019 Household Data Annual Averages, Table 39, https://www.bls.gov/cps/
cpsaat39.htm (last modified Jan. 22, 2020). 
14. JoaN c. wiLLiamS, et aL., comm’N oN womeN iN the profeSSioN, am. Bar aSS’N & 
miNoritY corp. couNSeL aSS’N, You caN’t chaNge what You caN’t See: iNterruptiNg 
raciaL & geNder BiaS iN the LegaL profeSSioN: executive SummarY 9 (2018), https://
www.americanbar.org/content/dam/aba/administrative/women/you-cant-change-what-
you-cant-see-print.pdf.
15. Id.
97
• Nearly 81% of women lawyers surveyed reported that they had been 
mistaken for lower-level employees.16
• “Approximately 30 percent of women lawyers reported that their gender 
affected their ability to achieve salary increases or bonuses, desirable 
assignments and access to sponsors.”17
• The number of women arguing before the Supreme Court has fallen 
off steeply. The court term of 2017-18 showed the fewest women 
participating in at least seven years, making up only 12% of the total 
appearances (compared with the previous term’s 21%).18
We know women in law school face similar climate issues:
• Women law students participate in classroom discussions less than 
men.19
• Women law students find it more difficult to develop relationships with 
professors, which impacts their ability to find mentors and obtain letters 
of recommendation. Often this lack of connection leads to women’s 
feeling isolated.20
• Many women law graduates pursue public interest jobs (women 
represent 77% of the lawyers in that field), nonprofit work (with 
women representing 70% of the lawyers), and positions in educational 
institutions (where 61% of the lawyers are women), compared with the 
31% of lawyers at Fortune 1000 companies who are women.21
These statistics do not illustrate the even larger issues facing women of 
color.
In addition to the numerical statistics, a substantial body of research finds 
bias toward mothers, and demonstrates that women are consistently rated 
lower than men on qualities associated with leadership such as assertiveness, 
competitiveness, and business development.22
16. Liane Jackson, Why Do Experienced Female Lawyers Leave? Disrespect, Social Constraints, ABA Survey Says, am. 
Bar aSS’N J. (Aug. 3, 2018) (citing preliminary results for an ABA report), http://www.abajournal.
com/news/article/why_do_experienced_female_lawyers_leave_disrespect_social_
constraints_ABA/.
17. Hilarie Bass, It Was a Very Good Year: Research On Long-Term Careers For Women Tops President Bass’ 
Achievements, am. Bar aSS’N J. (Aug. 1, 2018), https://www.abajournal.com/magazine/article/
careers_for_women_president_basse.
18. Mark Walsh, Number of Women Arguing Before the Supreme Court Has Fallen Off Steeply, am. Bar aSS’N J. 
(Aug. 1, 2018), http://www.abajournal.com/magazine/article/women_supreme_court_bar. 
19. Yale Law Women, Yale Law School Faculty & Students Speak Up about Gender: Ten Years Later 21-22 
(2012), https://ylw.yale.edu/wp-content/uploads/2013/03/YLW-Speak-Up-Study.pdf.
20. Id.
21. Katherine A. Welz, Within Reach: Legal Community Strives to Crack Glass Ceiling, Feb.-Mar. 2018 
cBa record 42, 43.
22. Deborah L. Rhode, Diversity and Gender Equity in Legal Practice, 82 u. ciN. L. rev. 871, 879 
(2014).
Reducing Gender Inequity in the Academy and the Legal Profession
98 Journal of Legal Education
Although these facts and figures depressingly indicate that we still have a 
long way to go, possible solutions exist for the academy and the profession. 
We might group these solutions under these themes: reviewing structures, 
coaching/training, and cultivating our next women leaders. I come to these 
themes by reflecting back on my own life and what made a real difference for 
me personally. Many strong women got me where I am today. I would not 
have been able to pursue big dreams without my mother and aunts cheering 
me on. I also went to an all-girls high school and realized what great power 
and love a sisterhood can promote. This structure cultivated our leadership 
skills. Women have so much to offer other women.
Although I regrettably have no sisters, I do have a blended family of seven 
children. Six of them are daughters, so I know a thing or two about female 
companionship. I have watched my daughters grow and become wonderful 
young women, and although I hope I had some role in their successes, I can 
by no means take all the credit. They had wonderful women (and men) in 
their lives who told them they could do anything they wanted. They also had 
teachers who saw their potential and pushed them to reach higher. But most 
importantly, they had women in professional roles take interest in them and 
help them network. You cannot imagine how valuable it was for my girls to 
talk to women about their careers and listen to their advice. No matter what 
stage of our careers we are in, we can all show an interest right now for women 
at our law schools and young women in the legal profession. Each of you has 
so much wisdom you can give these young women, and mostly you can listen 
to their challenges and help support them. Just making introductions for them 
so doors can open would be a huge help. You can also make their day by 
sending them a note or text to congratulate them on their successes.
Years ago, I discovered Deborah Rhode’s article “Diversity and Gender 
Equity in Legal Practice” in the University of Cincinnati Law Review.23 
Professor Rhode offered great advice then, and it still remains relevant today. 
Below I will expound on her tips on how to help women.
First, she urges us to quit calling this a women’s issue or a minority issue 
but instead make this an organizational priority.24 One of her suggestions is 
to review how the workplace operates. We need to be cognizant of barriers we 
might be creating in organizing our operations in a way that might be difficult 
for certain groups of people. For example, do we have meetings or classes in 
the very early morning or late in the day that makes it difficult for people with 
child care responsibilities? We also should be open to different and creative 
working arrangements including job sharing, working from home, or part-
time positions.
Professor Rhode then suggests we look at how we structure reviews.25 
Performance reviews need to set clear expectations and concrete measurables. 
23. Id.
24. Id. at 900.
25. Id. at 896-97.
99
Our staff members recently defined five of their core duties. Working together, 
the supervisor and the staff members outlined what performance for each 
of the duties would constitute good, very good, and outstanding efforts. 
I encouraged the staff to set realistic targets that could be measured. Staff 
members, although at first skeptical, now really appreciate the transparency 
surrounding how they will be reviewed and what they need to do to excel in 
their jobs.
In addition to making sure the review process is fair, transparent, and 
communicated, what is rewarded must be examined.26 We should be asking 
ourselves whether we reward performance that reflects what we articulate as 
our values. For example, all law schools and firms profess their commitment to 
diversity. Reviews, however, do not always ask individuals to show what they 
did to forward the goal of diversity. If we truly value diversity we should make 
this part of the review process and reward people who do work to forward this 
value.
In the academic world we know rewards come not only at review time 
but can be distributed throughout the year when decisions are made about 
those eligible for certain opportunities. For example, a recent study revealed 
gender disparities in colloquium speakers at top fifty universities, with sixty-
nine percent of the speakers being male compared with thirty-one percent 
female.27 As dean, when I staff committees I need to constantly check whether 
my implicit biases risk my putting more women on committees that primarily 
serve students while putting men on the research-heavy committees. Because 
women typically do great work with their service obligations, I also always 
check that I am not unduly burdening my women faculty with too many service 
assignments and that I am nominating both men and women for prestigious 
university and national awards.
Besides reviewing structures, Professor Rhode advocates for formal 
leadership and coaching.28 Excellent leadership programs exist for women. 
As a new dean, I took advantage of an executive coach offered through my 
university. I found it incredibly valuable to validate much of what I was 
doing but also to be coached on how to address certain sticky situations. I 
strongly urge women to consider utilizing an executive coach. Personally, I 
also appreciated a colleague coaching me on what salary to ask for when I 
became University of Louisville’s interim dean. Her excellent advice helped 
me negotiate a higher salary than I would have received initially.
Affinity groups also can be helpful to some but not necessarily all 
individuals.29 I appreciate having meetings with the other women deans. We 
can discuss issues that might impact us differently than our male counterparts. 
26. Id. at 897.
27. Christine L. Nittrouer, et al., Gender Disparities in Colloquium Speakers at Top Universities, 115(1) 
PNAS 104, 106 (2017). 
28. Rhode, supra note 22, at 895.
29. Id. at 898-99.
Reducing Gender Inequity in the Academy and the Legal Profession
100 Journal of Legal Education
Recently, my school founded the Bessie Young Council, named after our 
first woman graduate. The goal of the Bessie Young Council is to employ 
scholarships and mentorships to assist those nontraditional students who bring 
diversity, fresh perspectives, and varied life experiences to our student body. 
Nontraditional students are broadly defined and can include individuals who 
are parents, those coming to law school later in life, veterans transitioning from 
military service, or any other student who could use mentoring and support. 
The council awards a scholarship at its annual mentoring conference. This 
new initiative is already making a big difference in the lives of our students.
Being a mentor helps us pay forward all the help someone gave us. Even 
today I still depend on my mentors to give me good advice. Some of my 
mentors participated in this panel with me. All of us need mentors no matter at 
what stage we find ourselves, and all of us need to be mentors to those young 
women who will take our places.
Part of being a mentor, I believe, requires us to model behavior for younger 
women. Recently, the University of Mississippi brought women law students 
together with women graduates, women faculty, and women staff to discuss 
some of the experiences they encounter when interviewing or being in class. 
We listened but also shared our own experiences. The female law students 
took away some ideas and approaches they could use but also came to the 
realization that some of these experiences still darken our lives. Knowing that 
older women face challenges and that we still struggle to know how to best 
address them helps prepare these future professionals for what awaits them. 
Mentoring alone,however, won’t do the trick unless we also cultivate strong 
women and broaden the pool. Initiatives such as the Bessie Young Council do 
just that not only by mentoring students, but by supporting them financially 
as well. Scholarships remain a powerful tool to recruit strong women into our 
profession. But just getting them to enroll in our schools is not enough. We 
also need to provide programming, opportunities, and encouragement for 
young women to thrive in our schools.
Finally, since we are expressing our opinions, I think one of the most 
important things we can do is to be patient with ourselves. I just cannot be 
everywhere for everybody all the time, and that is OK. We need to get over 
the guilt. We do the best we can, and we all do it differently. Women can 
be so judgmental of one another. We have to quit doing that. We have to 
forgive ourselves when we slip up and not worry too much with what others 
think of us. This may sound silly, but I still recall a time I accidentally misread 
a flight itinerary while rushing to leave work. This error caused my middle 
daughter and me to miss a flight to Florida for her field hockey tournament. I 
was determined to make this right: We jumped in a car, drove to Cincinnati an 
hour and a half away, slept in our clothes, and arrived at the fields just minutes 
into the first game. There I was still wearing my suit, pearls, and high heels 
from the night before. Definitely not the best look! The other moms stared 
at me, and I think were saying “bless her heart” behind my back. But who 
101
cares? We got to the game. As a perfectionist, I felt horrible—but it showed my 
daughter we are all human and ultimately it all works out.
Above all, besides being patient with ourselves, what we need to model most 
is grit. We know the difficulties of balancing careers and family life, but it can 
be done. We need to show young women that anything worth doing is hard 
work, but the rewards are wonderful. It will not be easy, and disappointments 
and failures will come our way, but those women who summon their true grit 
will be genuine successes.
Reducing Gender Inequity in the Academy and the Legal Profession


Reducing Gender Inequity in the Academy and the Legal Profession

Dickerson, Darby

Finding the Goldilocks Zone: Negotiating Your First Employment Offer in Legal Academia

Morawetz, Thomas

Self-Knowledge for Lawyers: What It Is and Why It Matters

Murphy, Colleen P.

Ryan, Christopher J., Jr.

Warnapala, Yajni

Note-Taking Mode and Academic Performance in Two Law School Courses

Schulze, Louis N., Jr.

Using Science to Build Better Learners: One School’s Successful Efforts to Raise its Bar Passage Rates in an Era of Decline

McPherson, Lori

457
Law Review Articles Have 
Too Many Footnotes
Lori McPherson
I. Introduction, Body, and Conclusion
Law Review articles have too many footnotes.1 
1.   Elyce H. Zenoff, I Have Seen the Enemy and They Are Us, 36 J. LegaL educ. 21, 
21 (1986). As one who has been swimming in the sea of legal scholarship for the 
better part of the past three decades, I find it sometimes takes an outsider such as 
Professor Musgrave, supra note *, to point out the obvious regarding our common 
style of citation. We must admit that our footnotes, at once detail-oriented, 
comprehensive, and accurate, ofttimes go overboard in our attempts to impress 
one another—and to see our work get published. Those of us who seek to share 
with the world our wealth of legal knowledge learn quite early in our careers that 
the secret to publication is often footnotes, footnotes, and more footnotes. See, 
e.g., Fred R. Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 
110 Mich. L. Rev. 1483, 1485 (2010). Whether by design or default, the field of 
citology, wherein scholars analyze footnotes, is now a real thing. See, e.g., Arthur 
Austin, Footnote* Skulduggery** and Other Bad Habits***, 44 U. MiaMi L. Rev. 1009 
(1990); Herma Hill Kay, In Defense of Footnotes, 32 aRiz. L. Rev. 419 (1990); Charles 
A. Sullivan, The Under-Theorized Asterisk Footnote*, 93 geo. L.J. 1093 (2005).
  Whither the footnote? Where did this little beast originate and what is our 
fascination with the creature? For the love of God and all that’s holy, why don’t 
we just put what we are saying in the text of the article? We cannot honestly say it 
is because we want to save paper. Attorneys are not by their nature ecologically 
friendly animals; entire forests have died on their way to becoming appellate court 
briefs, transcripts, or motions. Using ten-point font in a footnote as opposed to 
twelve-point in the text may save a handful of pages in a journal, but not so much 
Journal of Legal Education, Volume 68, Number 2 (Winter 2019)
Lori McPherson is J.D., cum laude, T.C. Williams School of Law, University of Richmond 
(1996). The inspiration for this article comes from a tweet by Paul Musgrave, Assistant 
Professor of Political Science at the University of Massachusetts at Amherst, in which 
he lamented the existence of a single page from a recent law review article consisting 
entirely of footnotes. Paul Musgrave (@profmusgrave), TwiTTeR (Oct. 5, 2017, 9:52 AM), 
https://twitter.com/profmusgrave/status/915937707892903942. The article in question, 
along with the offending page, has been located. Robert J. Reinstein, Recognition: A Case 
Study on the Original Understanding of Executive Power, 45 u. Rich. L. Rev. 801, 855 (2011) 
(total footnotes in the article: 398). I am simultaneously proud and unsurprised that 
my alma mater published the piece. I would be remiss if I did not thank my forebears 
for the development of the genre of legal satire as reflected in Peter Goodrich, Satirical 
Legal Studies: From the Legists to the Lizard, 103 Mich. L. Rev. 397 (2004), and if I did not 
point out that, not counting the contents of this asterisk and the following footnote, 
this is, in fact, the shortest law review article ever written, see Erik M. Jensen, The Shortest 
Article in Law Review History, 50 J. LegaL educ. 156 (2000) (seven words to Jensen’s nine).
458 Journal of Legal Education
as to be meaningful to those truffula trees. See generally dR. SeuSS, The LoRax 
(1971).
  How far we have fallen. In its first edition in 1891, the Yale Law Journal used 
letters to indicate footnotes, “apparently not being able to imagine an article that 
required more than twenty-six footnotes.” The Under-Theorized Asterisk Footnote,* at 
5. By 1987, greed was good, and we hit our record of 4,824 footnotes in a single 
article. Arnold S. Jacobs, An Analysis of Section 16 of the Securities Exchange Act of 1934, 32 
N.Y.L. Sch. L. Rev. 209 (1987).
  Lawyers are taught early on that we have no original thoughts. We may from 
time to time have an original argument, but everything else—everything else—derives 
from another, and we must cite our sources, or else face the consequences. Neither 
judicial notice nor common sense prevails when the dogs of “accusations of 
plagiarism” and “burdens of proof” bark at our heels. As an example, I wrote the 
entirety of the text of this article on my own, then in the course of researching this 
footnote, found that someone else had written half of my sentence while I was still 
a freshman in high school. Ergo, the direct citation.
  The origins of our habits being understandable, and utilitarian considerations 
aside, we find in the footnote a willing coconspirator in our efforts to show our 
humor, cleverness, wit, and—above all—our general superiority to our colleagues. 
Most certainly a sarcastic remark in a serious article can hold no water, but perhaps 
we can sneak one by a bedraggled student editor in footnote 297 of a last-minute 
submission. See generally Thomas E. Baker, A Compendium of Clever and Amusing Law 
Review Writings: An Idiosyncratic Bibliography of Miscellany with In-Kind Annotations Intended 
as a Humorous Diversion for the Gentle Reader, 51 dRake L. Rev. 105 (2002) (describing 
dozens of law review articles with witty footnotes). The majority will not explicitly 
sign on to a certain key proposition, so a justice moves it to a footnote buried 
on page 152 of the opinion, leaving its significance and weight to be argued by 
their brothers and sisters at the Bar for years on end. United States v. Carolene 
Products, 304 U.S. 144, 152 n.4 (1938). And who, pray tell, who would argue 
with the author of an article that has more than 1,000 footnotes supporting the 
propositions? Surely (don’t call me that), aiRpLaNe! (Paramount Pictures 1980), 
such persons knows whereof they speak.
  Still, we all seem to instinctively know that we have a problem. See Joan Ames 
Magat, Bottomheavy: Legal Footnotes, 60 J. LegaL educ. 65 (2010), and articles cited 
therein. Even top-level law school journals at times wrestle with the import of the 
footnote:
  The footnote is inconsequential, inessential, an intellectual bauble that one 
could, in theory, do without. That is why it is excluded, marginalized, banished 
to the bottom of the page or the end of the book. Moreover, it is a dangerous 
inconsequentiality, infecting the purity and coherence of legal argument.
  J.M. Balkin, The Footnote, 83 Nw. u. L. Rev. 275 (1989) (article contains 104 
footnotes). 
  It is widely understood that the first step in addressing a problem is to 
understand and accept that the problem, in fact, exists. To demonstrate the 
overdependence on our beloved “intellectual bauble,” I propose a simple metric 
to guide our steps: the ratio of footnotes to pages, which generates an FPP 
(footnotes-per-page) score for an article. For example, I have published two law 
review articles before this one. My most recent has an FPP of 5.73; the article is fifty-
six pages long and has 321 footnotes. Lori McPherson, The Sex Offender Registration 
and Notification Act (SORNA) at 10 Years: History, Implementation, and the Future, 64 DRake 
L. Rev. 741 (2016) [hereinafter (SORNA) at 10 years]. My first published piece had 
an FPP of 5.34; it was twenty-three pages long and had 123 footnotes. Lori M. 
McPherson, Note, Liteky v. United States: The Supreme Court Restricts the Disqualification of 
Biased Federal Judges Under 455(A), 28 u. Rich. L. Rev. 1427 (1994). 
  Let us, then, consider the relative FPPs from the five top-ranked law reviews: 
459
Harvard, Yale, Stanford, Columbia, and Penn. Bryce Clayton Newell, 2016 
Meta-Ranking of Flagship US Law Reviews, pRawfSBLawg, (April 4, 2016), http://
prawfsblawg.blogs.com/prawfsblawg/2016/04/2016-meta-ranking-of-flagship-us-
law-reviews.html. From their most recent full-year published volumes, there are 
two scores to behold: (1) the highest number of footnotes in any article; and (2) 
the highest FPP in any article. May it be noted here that I controlled neither for 
typeface nor margin size, and leave the task of truly accurate analysis to those 
better-qualified in time and talent to handle it. See Bottomheavy at 65 (analyzing 
footnotes by lines of text rather than by number).
  The high footnote scores in every journal all marked at 500 or above. Andrew 
D. Bradt, ‘A Radical Proposal’: The Multidistrict Litigation Act of 1968, 165 u. pa. L. Rev. 
831 (2017) (586 footnotes); Dov Fox, Reproductive Negligence, 117 coLuM. L. Rev. 
149 (2017) (569 footnotes); Daniel E. Ho, Does Peer Review Work? An Experiment of 
Experimentalism, 69 STaN. L. Rev. 1 (2017) (500 footnotes); Anna Lvovsky, The Judicial 
Presumption of Police Expertise, 130 haRv. L. Rev. 1995 (2017) (544 footnotes); Douglas 
NeJaime, The Nature of Parenthood, 126 YaLe L.J. 2260 (2016) (546 footnotes). 
  While the race to the “most footnotes” title was won by faculty across the 
board, students brought their own in the fight for the highest FPP score. In all 
but one case it was the students—not the faculty—who scored the highest FPP in 
each journal’s most recent volume. Note, Clarifying Kiobel’s ‘Touch and Concern’ Test, 
130 haRv. L. Rev. 1902 (2017) (222 footnotes in twenty-two pages, FPP: 10.09); 
Grace E. Hart, Note, State Legislative Drafting Materials and Statutory Interpretation, 126 
YaLe L. J. 438 (2016) (280 footnotes in forty pages, FPP: 7.0); Ashley Robertson, 
Note, Revisiting Turner v. Rogers, 69 STaN. L. Rev. 1541 (2017) (434 footnotes in 
forty-nine pages: FPP 8.85); Nicole E. Smith, Note, The Old College Trial: Evaluating 
the Investigative Model for Adjudicating Claims of Sexual Misconduct, 117 coLuM. L. Rev. 953 
(2017) (244 footnotes in thirty-seven pages, FPP: 6.59). The lone faculty victor 
in our sample was David Marcus, The Short Life and Long Afterlife of the Mass Tort Class 
Action, 165 u. pa. L. Rev. 1565 (2017) (280 footnotes in thirty-two pages, FPP: 8.75). 
  How much is too much? How high is too high? At what point do our string 
citations and references to the Star Chamber become so much puffery? Does that 
appellate court judge really care that I booked legal history (I did), or would my 
client best be served if this brief in response used that space for a substantive 
argument? Are we so esoteric that only the most brilliant of the most brilliant of 
the most brilliant could ever understand us? 
  Yes, there is a time and place for any skill, and the art of deeply reasoned 
legal arguments is one we should continue to hone. But perhaps we would be 
well to also remember some common wisdom: If you have something to say, say 
it with your chest. That is, be neither afraid nor retiring in your advocacy. Refine 
your words. Say what you mean and mean what you say; the present example 
notwithstanding, don’t hide your light under a footnote. See Luke 8:16; Matthew 
5:15; Mark 4:21. If possible, cite to a source that has already compiled the sources you 
would otherwise cite individually. If that collective source does not exist, then 
by all means let yourself become the source that others might utilize. One of my 
proudest moments as a legal writer was compiling a string citation that, until the 
moment I wrote it, existed nowhere else. (SORNA) at 10 Years, 64 dRake L. Rev. at 
778 n.211. There will always be room for that kind of scholarship. That being said, 
realize that very little of what we do is new. Someone else out there really has done 
a lot of the work already. Give that person the credit, add your piece, and get on 
with it.
  A quick note to the long-suffering editors out there: If an article is “too long,” 
don’t just shift everything into the footnotes; break it into two (or three) parts, or 
facilitate the publication of a special issue. If it’s important enough to publish, 
then let it be said. 
  Much as the kind editors, here, have done.
Law Review Articles Have Too Many Footnotes


Law Review Articles Have Too Many Footnotes

Schulz, Jennifer L.

Expanding the Pie or Slicing the Bug?  ADR Education via Animated Short

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