The Role of the Audience in Legal Writing

In an interesting post on the goals of legal scholarship, Marc DeGirolami writes:

[It] doesn’t particularly matter to me who is or is not interested in my ideas. It probably is true that I hope vaguely that someone, somewhere, now or in the future, will be interested in them. If no one ever thought them at all interesting, I would likely find that regrettable. But I do not write with the purpose to address a particular audience. Even when something I write addresses a particular scholar’s claims, I do not take that scholar, or his epigones, to be my audience. In fact, I usually give no thought at all to whom I am writing “for.”

When I write, I don’t really care who cares, or why they care, or whether someone will care in the future for reasons I cannot guess. I am not writing with the practical aim of influence in mind, or with an ulterior motive, or with the hope that I will make it easier, or harder, for pastry chefs to frost cakes with greater velocity or skill. This is different, I think, than saying that one ought not care if one’s ideas are put to deeply harmful use, or that one ought to be utterly indifferent to the consequences of one’s ideas. Rather, it is to say that one should not have as one’s conscious writing object the excitement of anyone’s cares.

I look at this differently. I think that inherent in legal writing is writing for an audience. Legal writing is a type of argument, and arguments are made with audiences in mind. Of course, that doesn’t mean you know exactly who the audience is, or that you write with a specific reform in mind. And it doesn’t mean that you express an idea you don’t actually believe in just to please or influence the audience. But I think it does mean that a sense of the audience is inherent in the enterprise.

Imagine yourself as an author sitting down to start a new law review article. At the most basic level, you need to choose a language. You need to pick a level of complication in your language. You need to know how much to explain concepts, and how much to take things for granted. You need to have a sense of what claims readers will find obvious, what claims readers will find arguable, and what claims readers will find simply batty. You need to have a sense of how the reader is likely reacting to your argument as the reader delves into it, so you can take the reader on a clear path through the argument.

All of these steps require at least a vague sense of who the readers are. It requires the author to have a sense of how likely readers will experience reading the article so the author can try to help them understand the claim and persuade them that it is true. The sense of readers can be very general, of course. Perhaps it is just “law school hiring committees,” or “other lat-crit professors,” or “the kind of people who read law review articles about insurance contracts.” And perhaps, for some writers, the audience is really just themselves. They want to read over their work when it’s done and feel that the article genuinely reflects their own experience with the argument. But I think that’s an audience, too, albeit a small one.

Anyway, these are big issues, and no doubt others have expressed these views far better than I have. But I did want to briefly post about the issue — written, of course, with the readership of the Volokh Conspiracy in mind.

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