Wednesday, March 22, 2006

Scalia Opens Mouth, Inserts Foot(notes)

I've been playing catch-up with Andrew Sullivan over the last day or so and ran across this priceless gem from a few days ago. It's worth reposting:

"I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally," - Supreme Court Justice, Antonin Scalia.

I don't know about the rest of you law school grads, but my Professors used to structure entire exams around footnotes. One of them failed a classmate for his consistent refusal to read them. And I didn't even go to Harvard. Or any place close to Harvard, literally or figuratively.


At 10:49 AM, Blogger Jabawacefti said...

Ah. Footnotes.

The irony of footnotes is that law school professors love to harp on them because it's the easiest and quickest way to find out of your students have been reading carefully.

But you'll find that in the practice of law you cannot rely on footnotes to make your argument. In fact, if one asserts an argument only in a footnote, with no reference in the body of that argument, the argument can be considered waived in many jurisdictions.

At 11:28 AM, Blogger codemorse said...

Of course. But the origin of some of our most important law originates in footnotes. Overall judicial persuasiveness aside, they exist for good reason.

At 4:40 PM, Blogger Jabawacefti said...

Well, the only real big one I can think of is Footnote 4 in Carolene Products. For my part, I just liked them because you can fit more information on less pages. As a clerk, I hated them. And I advocated the waiver of an argument for raising it only in a footnote whenever I could.

At 8:03 AM, Blogger codemorse said...

I did the same thing, both at Cahill/Farrell, and in all Moot Court competitions.

Truth? I just like watching Scalia squirm.

At 9:31 AM, Blogger Jabawacefti said...

I actually have a soft spot in my heart for Scalia for no other reason than he made reading cases more entertaining in law school with his snide remarks.


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