As Professor Shmoe Says:

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).

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