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Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
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Sunday, November 28, 2004
Heavy with Footnotes

Arnold S. Jacobs "holds the world's record for the law review article with the most footnotes (4,824 footnotes, to be exact)." See http://www.proskauer.com/lawyers_at_proskauer/atty_data/0225.

With due all respect to Mr. Jacobs, I wish to note that judgments about scholarly fame -- or disgrace -- depend in part on how one measures such things. For example, one of my footnotes runs for 31 pages (in ten or eight point single-spaced type). See IA Wigmore on Evidence Section 62, at p. 1261-1295 n. 11 (Peter Tillers rev., 1983) (most of this footnote is my doing rather than Wigmore's). This is not an isolated example. See, e.g., I Wigmore on Evidence Section 5 n. 11 (Tillers rev., 1983)(29 pages; my doing entirely). Indeed, it might fairly be said that large portions of my revision of the first volume of Wigmore's Treatise consist of footnotes with text added.

N.B. A word of advice for aspiring legal scholars: If you wish to hide your light under a bushel, there is no better example to emulate than mine -- i.e., you should revise a major treatise (and, ideally, put your own work and thoughts in footnotes in very small print). Doing this will practically guarantee three things:

(i) people will regularly give the original author of the treatise that you have laboriously revised, credit for your insights and your work (see, e.g., Castillo v. E.I. Du Pont de Nemours & Co., 854 So. 2d 1264, 1280, at 1282 (Fla., 2003)(Pariente, J., concurring) (quoting "Wigmore" in Section 41 of the 1983 revision);
(ii) as you approach senescence (and frequently not before), some of the interesting things you wrote will (finally) be discovered -- and you may, perhaps, take some satisfaction in this even though such belated discoveries come too late to boost your career prospects or your income; and
(iii) belated public recognition (here and there) of the things you said (lo! those many years ago in those footnotes) will remind you that some thoughts touted as original by other legal scholars in your field sometimes 'tain't original 'tall (but this sort of reminder is a pleasure available to authors of law journal articles and treatises as well as to revisers of treatises).

On a serious note: It is simply a fact that prior important scholarship often goes unacknowledged. This may be lamentable. But, given the sheer volume of U.S. legal scholarship (and pertinent scholarship by people in other fields), such failures to acknowledge prior relevant work are practically inevitable. One can only hope that in time later laborers in the scholarly vineyards will detect and correct such oversights. But I worry a bit about the adequacy of this sort of corrective mechanism in some cases: I worry that legal scholars are less prone than other kinds of scholars to correct the historical record in scholarship because perhaps it is true that in the legal academy institutional affiliation counts more than in many other sectors of academia and perhaps diligent legal scholars are therefore less willing to publicly take note of the errors committed by some of their colleagues who occupy positions in high or higher places. But perhaps this problem of the corrosive power of status is no more severe in the law school world than it is in most other parts of the academy.
Posted by Peter Tillers at 11:59 AM
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Professor Peter Tillers

"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.

In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.

Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).