For the love of legal writing

BY GREG LIPPER

Thus far unable to inspire even a single nasty letter to the editor, I was relieved to see that my column had landed a coveted mention in Fenno. Even better, Fenno was providing free editorial advice: law school columnists shouldn’t write about “law,” Fenno opined. I eagerly jotted down the suggestion. After all, Fenno is a true journalistic role model whose column last week tackled the novel, important and original topic of OCS recruiting, complete with hip references to the bad weather and the remote location of the Charles Hotel. Now if only I can identify Fenno from a lineup of Law Review editors, I will exact revenge for having been forced to devote valuable seconds of my life to discovering the meaning of “Iphgenia” [sic].

Fenno, however, may have been on to something — at least unwittingly. Why is it that the mere thought of reading an article about a Supreme Court case or a legal issue produces vigorous yawns, glazed facial expressions and narcoleptic episodes beyond even Starbucks’ competence to remedy? Fenno’s malaise may reflect an unfortunate reality of modern day legal education: nobody teaches students the practice of good legal writing. Aside from the obligatory 1L FYL debacle, in which eager young solicitors learn the art of leading with a conclusion, and the typical professorial admonition that “concise answers will be rewarded in grading,” our erstwhile instructors neglect the legal craft.

This omission is unfortunate, for two reasons. First, effective legal argumentation requires more than pure substance. A clever soundbite or artful turn of phrase conveys the underlying substantive point far more persuasively than does formalistic legal jargon. That a constitution is more than a legal code is memorialized by Chief Justice Marshall’s caution that “We must never forget that it is a constitution we are expounding.” That schools are not rights-free zones is illustrated by Justice Fortas’s rejection of the notion that “Students or teachers shed their constitutional rights… at the schoolhouse gate.” That drug testing for extracurricular activity participants is unnecessary is enlivened by Justice Ginsburg’s skepticism over the threat of “out-of-control flatware, livestock run amok, and colliding tubas.”

Second, the practice of law can transcend rote debate and procedural haggling. Attorneys should be artists, not just practitioners. A well-crafted legal word can endear a bleeding heart to the words of Justice Scalia and allow a neo-Fascist to savor the prose of Justice Jackson. A beautifully written brief or opinion reinforces that law is not just a hyper-technical parsing of statutory provisions and common law doctrines but also a creative process that can be fun both to perform and to observe.

Yet the academy seems oblivious. The curriculum tends to provide standard fare — large classes that go heavy on the doctrine, or seminars that talk scholarship and policy. Writing seems easily dismissed as “practical,” lumped with the other redheaded stepchildren of the law school curriculum, such as negotiation and trial advocacy.

Doctrine and policy are important, no doubt, and I am the first to dismiss “practice-oriented” classes (and often those that teach them) as dumbed-down. But the one practical thing that most of the faculty can do — even if they have never litigated a case or even taken the bar — is write. The school embraces efforts to teach its students how to seal contracts and cross-examine witness — skills that cannot be taught in a semester, let alone a career. Wordplay, perhaps most appropriately taught in an academic setting, ought to receive at least as much attention.

Fenno’s allergic reaction to reading about the law may have reflected more than diminished intellectual curiosity, excessive subciting, or bitterness over back-to-back banishments to the back page. Rather, it may signal a Pavlovian association between legal writing and tired prose. Although doing so may cause Kingsfield and Perini to shrivel, perhaps it is time to replace Law and Economics with Law and Literature, and swap Hart & Wechsler for Strunk & White. Legal writing ought to do more than gather dust.

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