Here's a tentative conjecture I have about effective legal writing: Legal writing tends to be better if you give scholars you quote credit in footnotes, not in the text. Thus, for instance,
Professor X has insightfully expressed the argument that the disruption inquiry subjects speech to a "heckler’s veto"; that is, the "content- or viewpoint-based listener reactions" of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.
is generally better written just as
The disruption inquiry subjects speech to a "heckler’s veto"; that is, the "content- or viewpoint-based listener reactions" of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.
(I assume of course the quote from X is attributed in a footnote, and I don't want to discuss how else, if at all, this sentence can be improved.)
Why do I say this?
1. The reader wants to see what you're arguing. Who said it first generally doesn't matter. What matters is the argument that's being made; and while "Professor X has insightfully expressed the argument that" is not a vast digression or distraction, it is something of one.
2. The reader also wants to know what you are arguing. Whether deliberately or not, "Professor X has insightfully expressed the argument that" is unclear on whether you fully endorse the statement. It looks like you are, but it's not completely clear. "As Professor X has argued," is less ambiguous, and seems to commit the author more clearly to what comes after; but even that's not as clear as just saying what you're asserting, and giving the credit in the footnotes.
3. Especially when a lot of people are credited, the article begins to look more like a literature survey, a summary of what others are saying. You want the article to come across as what you are saying. Of course, give credit where credit is due, but footnotes take care of your obligations just fine.
Now there are some exceptions to this general suggestion. Professor X's statement may be important precisely because he says it, for instance if he's a very big gun (e.g., what Nimmer of Nimmer on Copyright says is important because he's Nimmer), if he's a judge whose opinions are therefore especially likely to be influential, if he has special knowledge of the underlying facts (e.g., if he's writing about his own experiences dealing with some case), or if his view may seem surprising for him (e.g., "even Professor Laurence Tribe has endorsed the individual rights of the Second Amendment"). The statement may also be so closely associated with some concept or viewpoint that mentioning the professor may help remind people about the concept. And there are doubtless some other situations in which naming the scholar in the text is a good idea: In some fields or subfields, the "Professor X says .... And Professor Y argues ...." style is so common that it might be expected by at least some readers, though my sense is that general legal scholarship (or for that matter briefs addressed to courts) is not such a field.
But in general, my sense is that mentioning professors' names is needlessly distracting. The motive may well be laudable -- graciously give credit to those who have influenced your thinking -- but the result is less effective than if you stick with the substance, and give credit in the footnotes.
I likewise wouldn't encourage people to name authors of arguments that you want to rebut, for instance,
Professor X has argued that the disruption inquiry subjects speech to a "heckler’s veto"; but this is mistaken because [argument].
Here, the alternative is something like (with all the appropriate footnotes that cite X)
Nor does the disruption inquiry subject speech to a "heckler's veto." [Argument.]
or, better yet, something that frames the argument affirmatively but that rebuts the "heckler's veto" argument in the process. Here too the alternative is somewhat briefer and less distracting; but, as importantly, it depersonalizes the disagreement as much as possible. Especially if your argument is very effective, there's no reason to make it look like an attack on Professor X (something that X or his friends may be unusually sensitive to). Focus on what you're saying, and on why the contrary views are mistaken, and not on who holds the contrary views.
Now again there are exceptions to this rule. Sometimes, for instance, if X is well-known, you may want to make clear that you're taking him on, because that shows that you have the guts and ambition to take on the top people. But this rarely works, and in any event, even if that's reason to take on some of the big guns by name, the rule should still remain: Leave the text for the substance, and put people's names in the footnotes.
I should stress that this is a conjecture about what is most effective. It is not a theory about what's "wrong," or even a conjecture that the approach I counsel against is highly ineffective.
At the same time, I hope it's more than just an esthetic preference of mine. I'd love to hear your views on it (at least in part because I'm contemplating adding it to the third edition of my Academic Legal Writing book, and I'd like to vet it with my blog readers first).
One reason is that it would seem to be most relevant when talking about professors, as opposed to judges writing opinions, especially when they are concurrences or dissents. (However, I suspect that's an unstated premise of the original post.)
Another reason is that the style would depend on the specific arguments used in the paper. For example, if there are similar but distinguishable arguments that one wishes to address, it might be easiest and briefest to identify them by their author (Professor X's theory, Professor Y's theory, Professor Z's theory) in the text later on when making reference to them. A quick example that comes to mind is the need to distinguish among various theories of originalism.
A further reason lies in the nature of how the footnote would be written. One might need to write the footnote along the lines of "For a differing view, please see Professor X's paper" in order to make it clear that Professor X is not saying exactly the same thing that you are saying.
The original post makes some valid points. But there might be too many exceptions for the suggestion to become an effective rule of thumb.
However, this may very well not be relevant in law which may not have the same difficulty deciding if two ways of stating the same position are the same.
For professional legal writing, however, I think footnotes should be minimized. If the author isn't worth attribution in the text, why cite to her at all?
My focus is on practical legal writing (for judges and clients), but I think your reasoning is sound - particularly the point that a discussion usually makes more progress toward enlightenment if arguments are depersonalized. I think this instinct is also one of the unconscious drivers behind the deplorable overuse of passive voice, which you have commented on before. Your solution, using footnotes, is far better.
In fact, I believe that footnotes should generally be *confined* to citations and giving credit, like you illustrate. [fn. credit Richard Posner]. The convention for writing briefs is, alas, contrary.
(More seriously, your article on Medical Self-Defense was quite informative in sections of my thesis. Thank you!)
In one situation, the professor (or other author) is mentioned for no purpose except to lend prestige to some argument that the writer is advancing. That may not impress the reader, who is probably mainly interested in the argument itself, as opposed to the roster of luminaries who may concur in it (as Professor Volokh has sagely noted).
In another situation, though, an argument is being evaluated, rather than made, and the argument under consideration may be quite author-identified and text-specific. Thus we speak, for example, of Justice Stevens's dissent in Scheffer, or Professor Rawls's arguments for the minimax principle. To purge the original arguer's identity from the text could be a distracting fetish in such a situation.
These two situations may define a spectrum, with hybrid cases in between.
Often, though, mentioning that somone has proposed a counterargument, especially one that is not obvious or not very persuasive, provides valuable context to explain why you're choosing to rebut it. For instance, a weak counterargument deserves rebuttal if someone credible has proposed it, but without that piece of information it may look to the reader as though you're just setting up a straw man.
Frankly, an argument I've been making and winning is to use more footnotes in court briefs. Start shoving your citations down below. Your judge's clerk won't hate you and your writing will increase in potency.
My 2 cents....
propagandaargument or as review.In some of those cases, specifically reciting the name of the person whose position/argument is being discussed, e.g. Professor X, in the text is more important when the position/argument is being discussed at some length. Why? It helps the reader by identifying a major player in the piece. If the position/argument is dealt with in passing because it isn't such a big thing, regardless of the
egoprominence of the person who proposed it, just put it in the footnote. Why? It helps the reader by not cluttering up the article with a bunch of negligibilities.It seems to me that footnotes are great things, because they allow the author to clear out underbrush and deal directly with the forest and the path through it. The default should be, put it in a footnote, with specific justification being required to put it in the text.
As for stuff such as this, which appears all too often:
That is, to me, just stupidly self absorbed. Who gives a rat's buttocks whether the author believes X was insightful or not. We the readers will decide, and that kind of stuff prejudices the argument that it was insightful - if you have to say it is, it isn't.
I think it is a good rule of thumb: it is an excellent rule of thumb to address the logic of the situation, and not the persons, so one should only mention a person in the body if it adds to the passage (which it does in the exceptions noted).
Several years ago, the state appellate division in which I worked adopted the citations-in-the-footnotes approach pushed most notably by Brian Garner. Our court of appeals asked us to stop and return to using in line citations. Their rationale was that in line citations made it much easier to see which cases we were relying upon for our arguments (and, although they did not state this explicitly, they were much more interested in the authorities supporting our arguments than our arguments themselves). Fair enough.
I suppose it might be accurate to say that citations in footnotes tend to privilege the argument over the authorities (because the argument is relatively easier to follow not being interrupted, while the authorities are slightly more difficult to follow, being separate); in line cites have the opposite effect.
At least with in line citations, though, one should avoid marshalling 12 cases for every proposition, however non controversial.
I am also not completely happy with how footnotes are rendered online - although I recognize that software changes may make this less of an issue.
But my general sense is that an article should be about the arguments, not the arguers. In most situations, the reader wants to know what you're saying, and why the counterarguments are wrong. He usually doesn't need to know who's making the counterarguments (though usually isn't never, and indeed if some argument comes from someone who's a field-shaper, the arguer's identity may be unusually important).
a. If someone is taking on a "big name,"
b. If someone wants to invoke the authority of a "big name," and
c. If someone wants to outline several schools of thought in a field in order to show where the new work fits.
I would expand "c" to include situations where there is only one school of thought -- the paper still has to fit in somewhere.
I like to see this "context" section pulled out on its own relatively early in the paper, not broken up into little tid-bits throughout. This may be a hold-over from other fields, but it's a useful way of organizing information.
Using at least a few names in the text can be an efficient way to present the information in such a section, but this doesn't mean that the author has to keep using names throughout the whole paper. Once the other people's arguments have been introduced, they can be referred to by any terms the author establishes. Case names, people's names, names related to geography or specific institutions, and key words from the theories themselves are especially good, but I don't care if an author decides to use Roman numerals to keep the different schools of thought straight. Just explain the system, whatever it is, and use it consistently.