The Volokh Conspiracy

Back in April, Eugene blogged this book, written by my friend, fellow Justice Kennedy alumnus, and fellow Rolling Stones fan Ward Farnsworth, who is a law professor at Boston University.  I have since been able to read the book, and add my enthusiastic endorsement. 

The book is divided into eighteen chapters, each of which analyzes a classical rhetorical technique, explaining how to use it effectively and providing many examples from literature.  There are six chapters on using the repetition of words (e.g., simple repetition/repetition at the start of a sentence, the end, or both/repetition of the root); six chapters on sentence structure (parallel structure/reversal of structure/inversion of words); and six chapters on dramatic devices (rhetorical questions/correcting oneself/breaking off in midstream/saying things by not saying them). 

I have always been a big fan of parallel structure (which I now know is “isocolon,” although I will promptly forget it).  But I had no idea of the breadth of ways it has been used.  Thus, for example, the book discusses the ways the device can be used to make two claims about the same subject.  They can be consistent claims:

He was a morose, savage-hearted, bad man: idle and dissolute in his habits; cruel and ferocious in his disposition. (Dickens, The Pickwick Papers (1837))

But parallel structure can also be used to make comparisons and emphasize contrast (the second example is my particular favorite).

Married in haste, we may repent at leisure. (Congreve, The Old Bachelor (1693))

The louder he talked of his honor, the faster we counted our spoons.  (Emerson, Worship (1860))

All-strong without, he is all-weak within. (Churchill, radio broadcast to the United States (1938))

The book’s use of examples makes reading it doubly enjoyable.  It is not only an interesting book on a fascinating subject (and surprisingly readable given the academic nature of the subject); it is also a collection of great writing that is well edited and organized.  There are many passages that beg to be read aloud—and which, indeed, I have read aloud to my wife—a hallmark of great writing.  The examples both aptly illustrate the principles they exemplify, and also simply entertain. 

Law students and young lawyers sometimes ask me how they can become better writers.  The first thing I tell them is to practice, and to work on becoming a critical reader and self-editor.  The other thing I tell them is to read good writing.  As the Chief Justice told Bryan Garner (p.39), “[t]he only good way to learn about writing is to read good writing.”  Both this book and the excerpts it contains fall into that category. 

My one complaint is the dearth of Stones lyrics in the book.  But I guess you have to leave something for the Second Edition.

One of the commenters to Eugene’s write-up expressed his wish that it were available in electronic form.  It apparently now is, as a Google eBook here (don’t know if it works for Kindle, but apparently works for iPad).

You know there’s trouble ahead when you see, in an early footnote to a law review article (31 U. West Los Angeles L. Rev. 257 (2000)),

Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis hereunder have been italicized, bolded or capitalized accordingly.

When my kids were small , both took music lessons (and as many of you know, my son Sam is forging ahead with a career as a pianist), and, as a result, I heard an enormous amount of really badly-played music; I probably went to 75 or 100 school-wide recitals and performances, and while they were all immensely delightful and uplifting – there is simply nothing more magical than watching kids make music, no matter what it sounds like – the musical bottom line is that 9 year old kids, even really talented 9 year old kids, can’t be expected to make beautiful music, and by and large they don’t. I realized, though, that I learned an enormous amount about music and music performance from listening to it badly-played, because it helped me to think about, and to appreciate, exactly what it is that is involved in playing music beautifully.

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing):

Judge Greenlights Cell Phone App Copyright Claims
Shannon P. Duffy
The Legal Intelligencer
January 07, 2011

THE TEXT OF THIS ARTICLE HAS BEEN REMOVED, AS A RESULT OF A DMCA TAKEDOWN NOTICE THAT WE RECEIVED FROM AMERICAN LAWYER MEDIA. I’LL POST SOMETHING ABOUT THAT SEPARATELY – IT’S A RIDICULOUS COPYRIGHT INFRINGEMENT CLAIM, IN MY VIEW, BUT I’M NOT WILLING TO HAVE ALM TAKE US TO COURT OVER IT. BUT YOU’LL JUST HAVE TO TAKE MY WORD FOR IT THAT IT’S LOUSY LEGAL WRITING …. SEE BELOW.

So – what makes it lousy legal writing? To begin (and to end) with: I have now read this through 3 or 4 times, and I still can’t figure out what the hell happened here. The first thing Ms. Duffy tells us is that Judge Jones “found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.” Now, I haven’t read Judge Jones’ opinion, but I would bet that this dog-bites-man “finding” – cell phone apps are a burgeoning and lucrative enterprise!! no kidding! — has absolutely nothing to do with the legal issues that he was resolving. So I’m off on the wrong foot at the very start.

There’s a pretty standard formula for writing about legal issues, and it’s a good one: start with the facts, describe the claims the parties made on the basis of those facts and the arguments they made in support of those claims, tell me what the court ruled, and then tell me why it ruled that way. Here, though, I don’t know the basic facts of who did what until paragraph 7, where the apps are described; then I have to go back and re-read the earlier paragraphs to figure out what the claims were; then I have to go forward again, to figure out what the court did, where I’m told that it dismissed Hershey’s counterclaims for infringement, “finding that [Hershey’s] team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.” Aaargh. That doesn’t really help me at all; I can sort of figure out what it means, but you’re making this awfully hard. And then, after that, Ms. Duffy goes on to tell me what arguments the parties made in support of their claims – requiring me to retreat once again and see how this new information helps me understand what the court ruled. It’s all horribly out of order and, as a consequence, it is incredibly difficult for the reader to understand what is, in fact, a very, very simple story. C minus, at best.

Though I’m not that much of an NFL football fan, I can’t help but noticing the extraordinarily good writing of Mike Tanier, who writes for FootballOutsiders.com (and the New York Times from time to time). Here are some examples, from his discussion of this week’s games:

On the Jets v Browns: “Eric Mangini is on a cross-country quest to silence his doubters, joined by a ragtag company of spunky rookie quarterbacks, castoff veterans, fleet-footed punters and other misfits. Having conquered the defending champion Saints and vanquished his mentor Bill Belichick, Mangini hosts the Jets, whom he coached through his metamorphosis from Boy Genius to baby-faced Machiavelli before being ripped apart by the tectonic forces of Big Apple expectations and Brett Favre egocentrism.”

And even better, Seahawks v. Cardinals: “The N.F.C. West stages one of its sad little round robins this week to see who gets to go 8-8 and lose, 31-7, to the Saints or Eagles in the playoffs. It’s like a college basketball-style play-in. In fact, don’t give the N.C.A.A. any ideas, or the winner of this game will face the winner of Canisius versus Towson University.”

And Eagles v. Redskins: “All of the campaign strategists who produced effectively virulent political smear advertisements went straight to Washington after the election and, with nothing else to do for 11 months, started writing the copy for Mike Shanahan’s news conferences. Shanahan & Son (you can picture the truck and junkyard in your head, can’t you?) stopped just short of accusing Donovan McNabb of shipping jobs overseas, but they effectively created a divisive, rancorous environment that will make it impossible to get anything done. In other words, our nation’s capital gets the football it deserves.”

Really terrific stuff.

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible.

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.”