The Volokh Conspiracy - Bad Legal Writing -- In This Case, My Own:

I was looking through some old articles recently, and I came across a reprint of my first law review article. It was an empirical study of the Chevron doctrine in administrative law, written when I was a law student and published the year after I graduated. My judgment today: interesting ideas, but terrible writing. Take this doozy of a paragraph:

The large body of literature on the Chevron doctrine draws primarily from three distinct models of how the doctrine functions in practice. Each model presents a jurisprudential paradigm in which a particular set of factors is believed to alter the chances that reviewing courts will uphold agency interpretations of statutory law. Because more than one set of factors can affect the outcomes of Chevron cases, these models are not mutually exclusive: Several might be needed to explain patterns of judicial outcomes accurately. However, despite their ability to function simultaneously, the three paradigms are conceptually very different. This part discusses the three models in detail, focusing on the theoretical assumptions that inform them and the empirical claims that these assumptions produce.

Why was I saying everything twice? Can I get any wordier? And did I actually write the phrase "jurisprudential paradigm"? Eeks.

If I could rewrite it today, I think I would replace it with something more like this:

The Chevron literature offers three descriptive models of what factors influence the outcomes of the Chevron test. This part explores the three models, focusing on their assumptions and the results they predict judges will reach.

Still not great, but better.

(link)

GMW:

In a decision released today, Judge Terry Evans of the Seventh Circuit complained about a document "written in the usual mumbo-jumbo of lawyer-speak."

Good legal writing is good writing, period.

--G.

2.17.2006 2:25pm

Dave Friedman (mail) (www):

I've seen worse.

Derrida, et al.

WB:

Now might be a great time to remind readers of the VC that Eugene Volokh's Academic Legal Writing would make an excellent "sorry I forget Valentine's Day" gift to that special law student or aspiring lawprof in your life.

Contact Prof. Volokh if you would like a personalized copy.

2.17.2006 2:26pm

That Guy (mail):

I occasionally read something I wrote years ago and wince. It's somewhat encouraging to hear that people I admire have similar reactions to their own work.

2.17.2006 2:28pm

DNL (mail):

Why was I saying everything twice? Can I get any wordier?

Apparently, you can. :)

2.17.2006 2:32pm

Traveler:

Why were you saying everything twice? Too much exposure to legal academia pomposity while in law school...

OrinKerr:

Awesome comment, DNL. Really awesome.

2.17.2006 2:33pm

Roger (mail):

My guess is, Professor Kerr, that you were forced into such pretension by a need to sound smart, and professors that over-edited your work. It takes a big man, however, to admit that he is a “bad writer” (or was, at one point). Most of the time, “bad writer” is codeword for “person of a race I don’t like” or ... well, let the plig do the talking

http://plig.schtuff.com/writer_bad
http://plig.schtuff.com/writer_good

2.17.2006 2:39pm

Wrigley:

Now might also be a great time to remind readers of the VC that Eugene Volokh's Academic Legal Writing would make an excellent Arbor Day, Earth Day, Flag Day, Black History Month, Administrative Professional's day, or Diabetes Awareness week gift for that special law student or aspiring lawprof in your life.

2.17.2006 3:00pm

David C. (www):

student writing, from any school, is almost always terrible. Yet they see it so differently.

2.17.2006 3:08pm

tdsj:

yes, I think it's time for us to ban the noun "paradigm" (and also the adjective "paradigmatic") from academic writing forever.

2.17.2006 3:09pm

Shelby (mail):

I read the excerpt and wondered where your editor was. Which may be because I was an editor before attending law school. I gotta wonder though, Roger, what makes you think of race when you see the term "bad writer" -- that seems no more likely than being a codeword for "dresses funny".

2.17.2006 3:11pm

I think Roger might be referring to Harry Reid's comments about Clarence Thomas. Or at least the material to which he refers might be.

I wonder far into one's career this phenomenon goes. Do 70-year-old lawprofs look at pieces they wrote when they were 58 and say "wow, what was I thinking when I wrote this?"

If so, the more rabid critics of certain Justices on the Supreme Court should consider the role of youth and inexperience before they complain too loudly. Don't like Raich? Well, Scalia's only 69, almost 70... when he's 80, he might look back and say "why did I write that?"

Justice Kennedy turns 70 this year too, and I certainly hope he looks back with regret on many of his recent opinions. As Justice Stevens might say, live and learn.

2.17.2006 3:26pm

Dave Hardy (mail) (www):

"jurisprudential paradigm"? I think they have a couple of them at the zoo here. You have to keep going back, because they change often.

There was a time (maybe still is) when Justice Department could not write a motion or brief without using the word "quintessential." And every one had to end: "CONCLUSION. For the reasons set forth above, the Court should ____"

I suggested they try something different, like

CONCLUSION

And darkness, and decay, and the Red Death reigned supreme over all.

Respectfully submitted this __ day of ____....

2.17.2006 4:10pm

John Beukema (mail):

Ending a brief with a formal "Conclusion" starting "For the foregoing reasons ..." may seem hackneyed, but it serves a useful purpose. It should force the writer to think about and address exactly what it wants the court to do. I've been at a surprising number of CLE seminars on appellate practice at which panels of judges have complained that too many briefs don't tell the court what relief the party wants the court to grant.

2.17.2006 4:21pm

Kovarsky (mail):

and why is every law student's idea of "editing" roughly equivalent to "purge the paper of the passive voice?"

TallDave (mail) (www):

"Jurisprudential" sounds like a law degree bestowed by an insurance company.

2.17.2006 4:40pm

Steve:

I don't think law schools teach legal writing very well, in general. Students come in with a preconception that legal writing uses lots of big words and that you always have to dance around your point 12 different ways, and the law schools do little to dispel that notion. Effective legal writing says what it means, and then stops.

Ending a brief with a formal "Conclusion" starting "For the foregoing reasons ..." may seem hackneyed, but it serves a useful purpose. It should force the writer to think about and address exactly what it wants the court to do.

I quite agree--seen a lot of that, too (more often in motion practice). In the context, tho, Justice was absolutely refusing to modify it to something along the lines of "As we have shown, plaintiffs bear the burden of proving A, B, and C, and have failed to prove any one of them. For these reasons, the Court should _____"

As to dancing around the point, I am particularly proud of a two-page response (including caption, signature, and certificate of service) I once filed in a FOIA case. Later heard that the judge's clerk had exclaimed "Why don't the other attorneys write like this? He said exactly what he had to, and shut up."

The gov't's motion had been the full 15 pages, arguing that the recording in question contained garbled sections, which if deciphered, might be properly withheld, and they were not duty-bound to decipher them since FOIA does not require them to create a new document.

The response was simply that the gov't bears the burden of proving exemption from FOIA. They haven't. In fact they refuse to. They lose.

2.17.2006 4:53pm

Pete Freans (mail):

My suspicion is that your edit today would have never past muster with your editors then.

2.17.2006 5:28pm

Tom952 (mail):

If then was now, I'll bet you would use "tipping point" in there somewhere.

2.17.2006 7:28pm

jgshapiro (mail):

Your edit loses the concept that the models are not exclusive to one another (and can therefore be applied concurrently).

2.18.2006 4:24am

I went to a fundraiser 5 years ago for a private middle school I had attended from 6-8th grade. My homeroom teacher from way back when (now long since retired) was there and had saved at least one paper for each of us that had RSVP'd. Mine was a 5-page biography, I think of Tolkien.

Anyway, I jumped to the end of the paper to see the comments, and I was both amused and embarassed. The first comment was, "good paper, but next time, try to use more than one paragraph." The second was "you need to cite your sources somewhere."

Live and learn.

2.18.2006 4:30am

Allison (www):

You probably wrote that way because you had a goofy page limit to meet. Then there's the 1:3 text to footnote ratio (we were told to meet that, anyway). Student law journals would do the world a favor if they tried to get students to write a la Constitutional Commentary or Green Bag instead of generating bad facsimiles of tenure pieces.

2.18.2006 7:31am

John Shaw (mail) (www):

And did I actually write the phrase "jurisprudential paradigm"? Eeks.

You know what they say about paradigms. "Shift happens"

2.18.2006 12:14pm

countertop (mail):

I actually moderated a conference for business leaders last fall on legal developments they need to be aware of in my area of practice. One of the speakers - a rather well known and highly respected partner at a top firm here in DC - titled his power point presentation The New Paradigm: ******** and the Paradigmatic Enforcement Shift (case name hid to protect the guilty - he was talking about the fallout from his own victory)

2.18.2006 5:53pm