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Are Footnotes Verboten?

Last week, Broc Romanek posed the question "whether it’s okay to use footnotes when you write".  My question for today is whether it is legal to use footnotes.  

It turns out that this is a question that the California legislature has actually addressed in statute.   For example, Section 1363(c) of the California Health & Safety Code provides:  "Nothing in this section shall prevent a plan from using appropriate footnotes or disclaimers to reasonably and fairly describe coverage arrangements in order to clarify any part of the matrix that may be unclear." 

In other cases, however, the legislature discourages, but doesn't prohibit, footnotes.  See, for example, Insurance Code Section 10509.950 that provides:

"Insurers should, as far as possible, eliminate the use of footnotes and caveats and define terms used in the illustration in language that is understandable by a typical person within the segment of the public to which the illustration is directed."

The SEC's Regulation S-K includes numerous references to footnotes and in some cases actually requires footnote disclosure.   See, e.g., Instruction 1 to Item 402(c)(2)(v) and (vi) 

"Gibbon lived out his sex life in his footnotes"1

One cannot write about footnotes, however, without mentioning the English historian Edward Gibbon and his magnum opus, History of The Decline and Fall of the Roman Empire.  He was one of the first historians to make extensive use of footnotes.  In fact, he  included thousands of them.  Most are in English, but a very large number in French, Greek and Latin without translation. 

For me, most of the fun in reading The Decline and Fall is found in Gibbon's footnotes, for it is there the reader finds cutting sarcasm, gore, and sex.  In many instances, the use of a foreign language allowed these delicate subjects to be "veiled in the obscurity of a learned language".  The Decline and Fall, ch. XL.

The Decline and Fall may have been a pioneer in footnoting, but Gibbon didn't write the book on footnotes.  That was left to Princeton University Professor Anthony Grafton who om 1997 wrote The Footnote: A curious history.

1.  Attributed to Philip Guedalla.

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...