Today I offer you a few morsels from an article entitled “Goodbye to Law Reviews” by Fred Rodell, Yale Law School, published in 1936. My question is, how much has changed? 😉
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.
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Suppose a law review writer wants to criticize a court decision. Does he say “Justice Fussbudget, in a long-winded and vacuous opinion, managed to twist his logic and mangle his history so as to reach a result which is not only reactionary but ridiculous”? He may think exactly that but he does not say it. He does not even say “It was a thoroughly stupid decision.” ‘What he says is – “It would seem that a contrary conclusion might perhaps have been better justified.“
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One of the style quirks that inevitably detracts from the forcefulness and clarity of law review writing is the taboo on pronouns of the first person. An “I” or a “me” is regarded as a rather shocking form of disrobing in print. To avoid nudity, the back-handed passive is almost obligatory: “It is suggested…” “It is proposed…” “It would seem…”. Whether the writers really suppose that such constructions clothe them in anonymity so that people cannot guess who is suggesting and who is proposing, I do not know. I do know that such forms frequently lead to the kind of sentence that looks as though it had been translated from the German by someone with a rather meager knowledge of English.
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So far as I can make out, there are two distinct types of footnote. There is the explanatory or if-you-didn’t-understand-what-I-said-in-the-text-this-may-help-you type. And there is the probative or if-you’re-from-Missouri-just-take-a-look-at-all-this type.
Any article that has to be explained or proved by being cluttered up with little numbers until it looks like the Acrosses and Downs of a crossword puzzle has no business being written.
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If I have given you a taste for more, the whole paper can be found here.