Wednesday, January 23, 2008

Time to Lose the Parentheticals
Mike Rappaport

As the author of law review articles, I have a question for the law review editors of the world.  Why does every citation require a parenthetical?  For those who don't read law reviews, let me give you an example.  The text of the law review article may say something like, "Judicial review was first exercised by the Supreme Court against a federal statute in Marbury v. Madison."  One would then have a citation to Marbury v. Madison, such as 100 U.S. 35 (1803).  But instead of leaving it at that, the law reviews often require that one add a parenthetical at that point explaining the cite.  So one would add here, after (1803) (exercising judicial review against a federal statute).  Now, an ordinary person would immediately understand the pointlessness of this exercise.  Plus, it makes law review articles longer, and less readable.  They already contain long footnotes, so why make them even longer?  There has been an effort, in recent years, to make these articles shorter and more readable.  Why, then, keep the parentheticals?

When I was a law review editor some two decades ago, only a small percentage of citations required parentheticals.  Somewhere along the line, some legal genius decided that most citations require parentheticals.  Innovations like this are enough to make you a conservative.      

I sometimes ask law review editors about this and they explain that the parenthetical helps the law review editors determine whether the source actually supports the point for which it is being claimed as authority.  Maybe it does, but if that were its sole function, one could use it solely as part of the editing process and then eliminate it before publishing the piece.  In that case, one might wonder whether the benefits of the parentheticals are worth the costs, but at least the law review articles would not become less readable.  But as far as I can tell there is absolutely no reason to leave the parentheticals in the articles.  So, to the law review editors of the world, how about it?  Can we lose the parentheticals?

https://rightcoast.typepad.com/rightcoast/2008/01/as-the-author-o.html

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Mike Rappaport
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Comments

I was an articles editor for the San Diego Law Review not too long ago. If I encountered the Marbury example you give, I would not have required a parenthetical, let alone a completely redundant one. Are law review editors really taking it that far? If so, I say you stand on your poetic license (and common sense) and refuse to capitualate.

Posted by: usdgrad | Jan 23, 2008 1:47:59 PM

"Somewhere along the line, some legal genius decided that most citations require parentheticals. Innovations like this are enough to make you a conservative."

I would say there is an equally good chances that whatever legal genius came up with this was a conservative as a liberal. I don't quite understand your point, unless you are positing that conservatives are against all innovations .

Posted by: USD Law Student | Jan 23, 2008 6:16:55 PM

I was taught that brief parentheticals are encouraged when doing Cf. (Compare) cites, so that the reader can see how the cited case supports the proposition being asserted. In that limited context, I think parentheticals can be helpful. But even if so limited, when there is a string cite full of parentheticals, the document becomes almost unreadable, and it's just not effective or persuasive writing.

Posted by: Tim K | Jan 24, 2008 8:40:27 AM

Would it not be a duty of an editor to look at the reference and SEE if it supports the point being made?

Posted by: JohnS | Jan 24, 2008 6:28:29 PM