January 19, 2006

posted by Daniel J. Solove

Great post, Dan. I'd only add one more thing--when we try to write our aticles only to impress the audience of law review articles editors, solely for the purpose of improving the article's perceived placement, I think we miss the point of investing the time and energy into writng in the first place. Eric.

I don't disagree with you, Dan. Although part of my point in my too-lengthy post (and my add-ons in the comment section) on Prawfsblawg is that there are certain conventions, and certain accepted fora, for participation in the conversation among legal academics, I don't think of the worst aspects of legal writing as being a necessary part of those conventions. Present evidence to the contrary, I think law professors should write clearly and well, and that instead they often write in a needlessly ornate, impersonal, and encrusted style. By all means we should challenge this. Posner, I freely admit, is my favorite legal writer, and a model example. What a pleasure to read someone in law whose sentences contain few commas, few qualifying clauses!

But these conventions resist challenge, and the sources of resistance are varied. As you've noted and as Eric suggests, often we, and our desire to suit what we think law review editors want, are our own worst enemy. The editors, too, often suggest changes that add needless complications to the writing and depersonalize it. And our own colleagues can be another source of pressure, especially to the untenured. I had a colleague comment on a recent draft by saying I used the first person singular too much. As it turns out, the colleague was right: I did, and I cut a number of them out. But the reasoning was more disturbing: it was that 1) law review editors don't like it and, perhaps more ominously, that 2) avoiding the first person adds more "authority" to the writing. In a broader sense, much of what is wrong with much legal writing is precisely that it uses language to lend a -false- air of authority to what we write -- to lend seeming authority and objectivity to writing that is either normative, or tendentious, or tentative, or simply personal. So, as should be unsurprising, we are bound by gossamer chains of convention that come from multiple sources and that often resist change even when everyone agrees that legal writing could be different and better.

Paul's comment regarding Posner reminded me of a recent article Posner had written on this topic and it is available at the following link:

http://www.legalaffairs.org/issues/November-December-2004/review_posner_novdec04.msp

Speaking as someone who has been both a professor (although not at a law school) and a practicing lawyer, the audience which this post omits, is the audience for whom law review articles should be written: The practicing bar and the part of the judiciary which is constrained by precedent.

Scientific journals are, to a great extent, written not just for academic scientists, but also for individuals who are actively doing research work in private industry and government.

Yet, few law review articles offer anything of practical use to a practicing lawyer, a trial court judge, or a judge in an inferior appellate court that is bound by precedent. They are primarily of interest to U.S. and state supreme court law clerks, to fellow academics, and to legislative staffers, as most ultimately go to policy issues that rarely actually come up in practice. There is nothing wrong with writing articles for this audience, and law schools have to a great extent evolved into policy schools, but it is too narrow.

This isn't entirely the fault of the professors. Professors at law schools, by and large, have little practical experience as lawyers and do not currently maintain law practices. There is an institutional bias against hiring attorneys on the strength of their practical experience, as opposed to their publication record that helps to make this so. They teach appellate court opinions and law review articles because that is what they most easily have access to from their own positions. But, those teachers also have only so much that they can offer to their students about the finer aspects of dealing with clients or the less visible parts of legal practice, and obviously can't write about it either, as it is not part of their experience, at least not to the level of real mastery.

The expected scope of a law review article is beyond the available time and computerized legal research resources of most practicing attorneys, and their submissions, even when made, tend to bring puzzlement to editorial boards, so practicing lawyers rarely submit articles to law reviews, and information of use to the practicing bar instead ends up being published in less pretentious bar journals, continuing education coursepacks, and specialty practice news letters.

The formats favored by practicing lawyers (some even write at book length in this style, Colorado has a large multi-author set of treatises in this style) typically feature shorter articles, fewer footnotes, more of a "just the facts" attitude, as opposed to advancing a policy thesis, and a less than exhaustive review of the outstanding authority in all fifty states on an issue. But, they are regularly read and referred to by practicing attorneys, albeit, often without attribution. They are valuable because they inform the reader, not because they provide delightful quotations to hang on one's wall or place in a brief. Judges in their opinions provide enough of those to go around, and judges appreciate quotations of a fellow judge's wit more than that of a law professor or practicing attorney.

Dan wrote: "Does Scholarly Writing Have to Be Tedious?"

It's funny that in a post about tedious writing, the title itself is a bit tedious. Couldn't you have been more economical, entitling your post: "Must Scholarly Writing Be Tedious?" ;^>

While Bluebooking is tedious (though law review editors have to endure more of the tedium than professors in this regard), what does Bluebooking have to do with tedious writing? What Bluebook rule would, if eliminated, lead to more engaging writing? The Bluebook does not "mandate the litany of unnecessary footnotes" -- professors put the footnotes in and law review editors often ask for more of them (oftentimes for good reason (e.g., to expose an author who's saying something that is clearly unsupportable) and sometimes not). For the most part, the Bluebook only tells you how to format the footnotes. To see how to have law review articles be more useful to more readers and less tedious to read, professors need only look themselves in the mirror!

Josh's defense of the Bluebook is well founded. The problem with law review articles is not footnotes with citations. It is "talking footnotes" that contain far more than citations.

A Bluebook rule simply banishing explanatory text or off topic meanderings from footnotes would do the genre a great service.

I think the Bluebook is partly responsible. It does (or at least the last version I'm familiar with did) require citation at the close of each assertion or quotation. This form will endlessly gum up the printed page and distracts the reader and the writer. And until the iron bands of mindless conformity are broken many junior faculty will persist in maximizing the number of footnotes as a misbegotten shorthand for showing off erudition. Why not have law review articles collect citations and attributions in a single footnote for each page or each paragraph?

Still, it is true that much legal academic writing is at best difficult to read. I think it's because the market for academic legal writing doesn't use the product in the way a judge might use a legal brief. Because the consumers aren't actually expected to do anything with the product there's just no penalty for poor writing, or thinking, for that matter. I'm not suggesting that law review articles should be useful in the sense that a treatise is, but I do think the highly stylized form of many articles is a conceptual dead end.

If you want it to be cited (by judges) it does have to be tedious (very well researched, thorough, on a specific not-so-exciting topic and well footnoted). On the other hand, we could do without the Latin and other formalities that just discourage the general public and other professions that intersect with the law.