Yeager on Discursive Footnotes

Daniel B. Yeager, California Western School of Law, has published Discursive Footnotes. Here is the abstract.

This essay offers a comprehensive account of the past forty years of scholarship on footnotes within law. Not just any old footnotes, but footnotes that are discursive in form, that is, those with an expressive rather than bibliographic function. After contrasting the function of discursive footnotes in judicial opinions with those in academic legal literature, this essay identifies and decodes a comparatively hidden avant garde footnotes literature. Borrowing from techniques of literary criticism, that literature, properly understood, provides a foundation for our making more subtle judgments about both the relation of primary to secondary texts and the allocation of responsibilities between readers and writers.

Download the essay from SSRN at the link.

Boling on What Is "The Rule"? Quotation Marks and the Role of Courts and Lawyers as Performers of the Common Law

Kathryn Boling, Seattle University School of Law, is publishing What Is 'The Rule'? Quotation Marks And The Role Of Courts And Lawyers As Performers Of The Common Law in volume 64 of the Duquesne Law Review. Here is the abstract.

Must lawyers and judges use quotation marks when they recite legal rules verbatim from a cited source in their legal practice documents? It is a question that lawyering skills faculty hear often when training first-year students to enter the legal writing genre. The advice of many is to use quotation marks to avoid plagiarism, but that advice arises from a conflation of academic and legal writing and a small number of inapplicable cases in which courts have issued reprimands (or worse) to attorneys caught copying large portions of other sources without sufficient "attribution." This Article, therefore, undertakes a rigorous defense of the verbatim recitation of a rule from a cited source without quotation marks in legal practice documents. As this Article shows through a multidisciplinary exploration of linguistics, professional ethics, speech act theory, and neuroscience, that choice is legitimate and often desirable. What is often forgotten about legal rules (particularly in the common law) is that it is the day-to-day recitations of rules by lawyers and judges in the handling of cases that perpetuate the rules from the past into the present and thereby keep them in force for use in the future. Through an application of J.L. Austin's speech act theory to this activity, the Article explains why the social offense of plagiarism is not applicable, distinguishing the genre of academic writing from legal practice writing in multiple respects. It also explains how, with fear of plagiarism out of the picture, a legal practitioner in certain circumstances can harness rhetorical benefits from reciting a verbatim rule from an authoritative (and cited) source in their own written "voice," without quotation marks. By preserving the wording verbatim, the practitioner ensures the integrity of the rules themselves and enjoys a sense of belonging from verifying a communal understanding of the common law. Moreover, doing so through indirect quotation (i.e., without quotation marks) conveys the concepts with more ease for the reader, more seriousness by the writer, and more efficiency than direct quotation can.

Download the article from SSRN at the link.

Keyes on the Evolution of Legislative Drafting Style in English

John Mark Keyes, University of Ottawa Faculty of Law, has published Evolution of Legislative Drafting Style in English. Here is the abstract.

This paper reviews the evolution of legislative drafting style in English beginning in the Middle Ages in England through to modern reforms adopted by the national drafting offices of Canada, the UK, Australia and New Zealand. It concludes there is remarkable similarity in the styles adopted by these offices with the exception of some of the more debatable techniques proposed to enhance the readability of legislation.

Download the article from SSRN at the link.

Boyd on Storied Pleadings: The Power of Narrative Introductions @LadyLegalWriter @GeorgiaStateLaw

Megan Boyd, Georgia State University College of Law, is publishing Storied Pleadings: The Power of Narrative Introductions as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

This article sits at the intersection of civil procedure, professional responsibility, and legal writing. Narratives, or stories, are essential to the human experience and thus essential to law. While storytelling has typically been reserved for motions practice and trial, lawyers are now beginning to include narrative techniques in complaints and, specifically, in complaint introductions. Narrative Introductions, which employ multiple narrative techniques to paint a more complete and persuasive picture of the plaintiff’s factual or legal contentions, seek to persuade the reader from the outset that the plaintiff’s claims are worth paying attention to. Part I of this article outlines the importance of first impressions in legal writing. Strong first impressions are created through a concept known as priming in which the writer uses narrative techniques to present a particular view of the plaintiff’s case through which all subsequent information will be filtered. Part II of this article considers Narrative Introductions in 12 complaints filed in federal and state courts across the country and demonstrates the ways the complaint drafters use narrative techniques to frame the facts and legal claims that follow. Part III of this article outlines the requirements of Rules 8, 9, 10, 11, and 12 of the Federal Rules of Civil Procedure and considers whether the use of Narrative Introductions is consistent with or violates those rules, using the Narrative Introductions studied as examples. Part III also considers certain Model Rules of Professional Conduct and addresses ethical issues that may arise in the use of Narrative Introductions. This article concludes by explaining why lawyers should not be concerned that well-researched and carefully written Narrative Introductions violate any procedural or ethical rules and advocating for their use more widely. Funder Statement This article was made possible by a grant from the Legal Writing Institute, the Association of Legal Writing Directors, and LexisNexis.

Download the article from SSRN at the link.

Simon on More True Confessions of a Legal Writing Professor @uarizonalaw

Diana Simon, University of Arizona College of Law, is publishing More True Confessions of a Legal Writing Professor: Down the Rabbit Hole with Doe in Arizona Attorney. Here is the abstract.

This, at times, irreverent, article is about the practice of using Doe parties in litigation. First, the history of the practice is covered. Second, expansion of the practice is covered along with the reasons why it is disfavored and what the legal test is for allowing fictitious names in litigation, Finally, the article addresses the wide range of names used for pseudonyms beyond just Jane and John Doe.

Download the essay from SSRN at the link.

Abrams on Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions at 79 Journal of the Missouri Bar 172 (July-August 2023). Here is the abstract.

This article surveys the indelible mark that the Beatles (Paul McCartney, John Lennon, George Harrison, and Ringo Starr) continue to leave on courts in the United States more than half a century after the quartet burst onto the American scene. By highlighting references to Beatles songs in state and federal judicial opinions, this article continues a theme that I have presented in several prior “Writing It Right” articles. The theme begins in some courts, which in recent years often accent their written opinions’ substantive or procedural rulings with references citing or quoting well-known cultural markers from sports, popular entertainment, or literature.

Download the article from SSRN at the link.

Simon on More True Confessions of a Legal Writing Professor: The Continuing Study of Legal Writing Should Be Deemed a Required Part of Our Professional Responsibility @uarizonalaw

Diana Simon, University of Arizona College of Law, is publishing More True Confessions of a Legal Writing Professor: The Continuing Study of Legal Writing Should Be Deemed a Required Part of Our Professional Responsibility in Arizona Attorney (2023). Here is the abstract.

This, at times, irreverent, tongue-in-cheek article is about how the Arizona State Bar should award professional responsibility continuing legal education credit for a seminar on legal writing. First, the article addresses the rules of professional conduct in Arizona. Second, the article discusses why effective legal writing should be included as an explicit part of a lawyer’s duty of professional responsibility. Third, the article discusses examples where courts have chastised lawyers for incomprehensible writing and tied that into a lawyer’s professional responsibility. Finally, the article contains recommendations to better encourage lawyers to continue learning about effective legal writing.

Download the article from SSRN at the link.

Culver on The Rhetorical Profile @sjquinney

Leslie Culver, University of Utah College of Law, has published The Rhetorical Profile. Here is the abstract.

This essay is a pedagogical companion piece to my article (Un)Wicked Analytical Frameworks and the Cry for Identity. The Rhetorical Profile is a contemporary method for teaching legal analysis that pushes against IRAC’s rigidity and dominance. First, it teaches students to view and understand legal writing as genres (e.g., judicial opinions or motions) and conventions (e.g., governing rules, analogical and deductive reasoning). Second, it develops conscious decision-making to provide depth and effective legal analysis. Its hallmark feature is to situate and give space to the existing questions students should consider at each stage of legal analysis. The result is conscious and confident legal analysis.

The full text is not available from SSRN.

Frohock on Reading Lolita as a Sentencing Memorandum @frohock_c @AlbanyLawReview @MiamiLawSchool @umlawschool

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

Download the article from SSRN at the link.

Kimble on Scouring Dictionaries: Their Overuse and Misuse in the Courts @ProfJoeKimble @WMUcooleylaw

Joseph Kimble, WMU-Cooley Law School, has published Scouring Dictionaries: Their Overuse and Misuse in the Courts at 41 Dictionaries: Journal of the Dictionary Society of North America 249 (2021). Here is the abstract.

Under the influence of textualism, courts have increasing turned to general dictionaries when interpreting the meaning of contested terms. This resort to dictionaries is suspect for two main reasons: as practiced, it’s arbitrary and unsystematic; and it’s linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point—the courts’ arbitrariness when picking which definition they choose to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker’s common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute’s purpose.

Download the essay from SSRN at the link.

van Domselaar on "Plain" Legal Language by Courts" Mere Clarity, an Expression of Civic Friendship or a Masquerade of Violence? @AdamLawSchool

Iris van Domselaar, Amsterdam Law School, has published ‘Plain’Legal Language by Courts: Mere Clarity, An Expression of Civic Friendship or a Masquerade of Violence? in The Theory and Practice of Legislation (2022). Here is the abstract.

In the Netherlands over the last decade, a range of initiatives have been launched by individual courts, mostly on their own initiative, to make court rulings more comprehensible to average citizens. At the outset, at least from the ‘internal point of view’ of legal practitioners, it might seem striking that these initiatives predominantly address the comprehensibility of legal language as an exclusively linguistic matter, independent of any jurisprudential stance as to what ‘doing law’ should consist of in this context. However, this linguistically-oriented approach is far from eccentric: it dovetails nicely with the dominant approach adopted by the plain legal language movement to make the law more comprehensible to citizens. Against the background of a language as activity view, this article analyses and evaluates the use of comprehensible legal language by courts. To do this, an integrative legal–ethical approach is employed, according to which the content and style of court rulings are inextricably linked. More specifically, the Aristotelian concept of civic friendship is introduced as having potential explanatory force for the practice of plain legal language use by Dutch courts. With reference to actual court rulings, it is argued that this concept allows us to conceive of a ‘plain’ court ruling as a potential expression of a civic-friendly attitude by the judge. In addition, the main dilemmas that civic-friendly judges will be likely to face when writing a comprehensible court ruling are identified. Finally, and on a more critical note, a fundamental concern is raised regarding the practice of plain legal language use by Dutch courts.

Download the essay from SSRN at the link.

Abrams on Shakespeare in the Courts @MizzouLaw @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published Shakespeare in the Courts 77 Journal of the Missouri Bar 132 (May-June 2021). Here is the abstract.

Professor Abrams authors a column, Writing it Right in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity.

Download the essay from SSRN at the link.

Abrams on References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy at 76 Journal of the Missouri Bar 212 (Sept.-Oct. 2020). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

Download the essay from SSRN at the link.

Simon on The Power of Connectivity: The Science and Art of Transitions @uarizonalaw

Diana Simon, University of Arizona College of Law, is publishing The Power of Connectivity: The Science and Art of Transitions in volume 18 of the Legal Communications & Rhetoric: JALWD (Fall 2021). Here is the abstract.

Do transitions really matter? Yes. This article explores the impact of transitions in legal writing beyond simply improving flow and readability. First, with the help of cognitive psychologists and neuroscientists, the science behind transitions is addressed, because science shows that transitions increase comprehension and improve processing times. Second, the omnipresence and significance of transitions is addressed with the help of singer-songwriter Justin Timberlake and his song, “SexyBack” and comedian Brian Regan and his stand-up bit, “I Walked on the Moon.” Third, various types of transitions in legal writing are addressed with a special focus on the “magic of three” in persuasion in both legal writing and beyond.

Download the article from SSRN at the link.

ICYMI: Emerson on An Ode to the Missive-Writer of the Law Review Rejection

ICYMI: Warren Emerson, Savannah Law School, has published An Ode to the Missive-Writer of the Law Review Rejection. Here is the abstract.

Law and rejection go hand in hand. Litigators must explain to their clients why a claim failed and transaction attorneys describe why a deal fell through. Communicating failure has become a trade par excellence in the study of law. This short piece suggests that the rhetorical tradition of the love sonnet may be helpful in unpacking the mechanics of how communicating legal rejections can be improved. Drawing on exhaustive empirical study of the author’s personal law review rejection letter, for which the author has many, this short piece provides a detailed study of human cognitive emotions at the intersection of labor-based rejection.

Download the essay from SSRN at the link.

Davis on [Classical] Lawyers as [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary @MyLegWriting

Kirsten K. Davis, Stetson University College of Law, is publishing [Classical] Lawyers As [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary in the Nevada Law Journal. Here is the abstract.

Arguably the contexts of speaking and writing for lawyers of ancient Greece and Rome and lawyers of today could not be more different. But, classical rhetorical theory, developed 2,000 years ago for face-to-face interactions in public squares and courtrooms, can be productively applied to improve our understanding of modern lawyers’ digital communication practices. This article first argues that lawyers have an ethical responsibility to write as “citizen lawyers” and provide legal commentary in the digital public sphere. Then, applying classical rhetorical theory, this article explores the problems and possibilities of lawyers’ digital rhetoric. The article is not a handbook of rhetorical techniques; rather it offers lawyers a rhetorical perspective on public commentary in a digital environment.

Download the article from SSRN at the link.

Call For Proposals: The Utopia/Dystopia Project: A Writing Workshop, UNLV School of Law, Feb. 13-14, 2020 @UNLVLaw @elmacdowell @ljewel

CALL FOR PROPOSALS

The Utopia/Dystopia Project: A Writing Workshop 

February 13-14, 2020

William S. Boyd School of Law, University of Nevada Las Vegas

There is no end / To what a living world / Will demand of you.

Octavia Butler, Parable of the Sower 

In these days of hate politics and urgent need, there is a great need for countervailing narratives and envisioning. The Utopia/Dystopia Project seeks to engage the legal imagination with utopian and dystopian art forms to decolonize mental space, reframe critical consciousness, and engender deep resistance. Project organizers believe that this art has much to teach the legal academy about understanding contemporary politics and re-organizing and re-envisioning what comes next. Popular utopian and dystopian narratives may illuminate truth and sharpen our vision. Indeed, the most critical articulations of these genres struggle with basic questions while expressing alternative visions of what could be. Speculative texts urge us to think from a different perspective than the ones we normally occupy, to live differently than we are, and to dissent from the status quo. They teach us to resist against what scares or enrages us, and to build and engender what we hope for and love. They show us that alternative possibilities for empathy, recognition, and joy may be as near as the next frame or the turn of a page. 

This Workshop follows the powerful Utopia/Dystopia Project Conference held at Tulane University School of Law in April 2019, and panels at critical legal conferences in 2018-19. Guiding questions addressed at these events included: What is law? What is justice? What are our obligations to one another? What is sacred? What is profane? What is a person? What is gender? What is sex? What is race? Must our answers be linear, inevitable, binary? Participants also engaged questions about ethics, power, and the realm of the political: How should we treat one another? What does it mean to live a good or just life? How does power structure our interactions and inevitabilities in our lives? Could power structures be other than they appear to be? How? What institutions shape our life chances/choices? What does it mean to belong or to exclude? What is self,  community, nation, other? 

Please join us for an intimate workshop to support the development of a rich, interdisciplinary legal scholarship that engages these themes. This Workshop will continue this vital dialogue with a focus on developing the participants’ ideas and scholarship toward the goal of publication. Participants will share working drafts before the Workshop and receive intensive feedback at the Workshop, as well as participate in discussions of cross-cutting ideas and issues, in a supportive environment. 

We are seeking proposals for participation. 

Participation may include academic and artistic written materials that engage socio-legal themes, storytelling in the critical race theory tradition, and speculative, utopian and/or dystopian materials, themes, or ideas. Proposals of 250-500 words should be emailed to elizabeth.macdowell@unlv.edu by Dec. 19, 2019 and include the author’s resume. Selected participants will be notified by Dec. 27. 

Working drafts will be due Jan. 24, 2020. Inquiries may be sent to Elizabeth MacDowell or another organizing committee member: Cyra Akila Choudhury, FSU College of Law;  Atiba R. Ellis, Marquette University Law School; Anthony Farley, Albany Law School; Marc-Tizoc González, St. Thomas University School of Law; Lucy Jewel, University of Tennessee College of Law; Brant Lee, University of Akron School of Law; Saru Matambanadzo, Tulane University Law School; Christian B. Sundquist, Albany Law School; and Matthew Titolo, West Virginia University College of Law.

McMurtry-Chubb on Still Writing at the Master's Table @genremixtress

Teri A. McMurtry-Chubb, John Marshall Law School; Mercer University School of Law, has published Still Writing at the Master's Table: Decolonizing Rhetoric in Legal Writing For a 'Woke' Legal Academy at 21 Scholar 255 (2019). Here is the abstract.

When I wrote Writing At the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession almost 10 years ago, my aim was to bring a Critical Race Theory/Feminism (CRTF) analysis to scholarship about the marginalization of White women law professors of legal writing. I focused on the convergence of race, gender, and status to highlight the distinct inequities women of color face in entering their ranks. My concern was that barriers to entry for women of color made it less likely that the existing legal writing professorate, predominantly White and female, would problematize the ways students are taught legal reasoning, analysis and writing. I argued: “If the traditional [dominant] legal analytical process is normalized and passed off as objective, both in the content of the legal writing curriculum and in the body of the person teaching the curriculum, most students unwittingly will continue to replicate racist and elitist legal structures as they learn the very process of legal reasoning and analysis in law school and as they undertake the practice of law.” I pick up that major theme in this article by focusing on how law professors of legal writing are forced to serve as handmaidens of hierarchy in the maintenance of the legal academy as an elite and closed discourse community. It considers how in teaching students how to “do” law - employ legal reasoning and analysis through written communication - legal writing curricula provide for no critique of the colonized formal rhetorical structures in which critical thinking, reading, analysis and writing skills are grounded. Part I problematizes the relationship of the five canons of rhetoric, specifically Invention and Dispositio, to Western/European epistemologies. Part II introduces Indigenous, African and Asian Diasporic Rhetorics, and Latinx Rhetorics as critiques of the canons of rhetoric and the Western concept of canonicity; examines them as new sites for Inventio and Dispositio; and considers the implications for teaching legal reasoning, analysis, and communication. Part III explores how de-centering Western epistemologies as the sole acceptable source of rhetoric opens possibilities for decolonizing the legal academy, and for preparing law students to become change agents in the practice of law.

Download the article from SSRN at the link.

Culver on (Un)Wicked Analytical Frameworks and the Cry For Identity @UCILaw @CWSL_News

Leslie Culver, University of California, Irvine, School of Law; California Western School of Law, has published (Un)Wicked Analytical Frameworks and the Cry for Identity

Heralded as a cultural phenomenon, the musical Wicked — the untold story of the Witches of Oz — transformed the way we view the classical Wizard of Oz. Wicked not only narrated the Wicked Witch’s identity from her perspective, it also provided a revealing reflection on the Good Witch’s identity, her privileged life and superficial rise to popularity. Using Wicked as a contemporary framework, this Article juxtaposes identity discourse with legal writing to broaden law students’ understanding of the depth of legal analysis. Often law students feel the tension between the supposed freedom of a creative legal writing process, and replicating rigid and reductive analytical paradigms, such as IRAC. And inasmuch as the legal academy has recognized IRAC’s inability to generate depth and creativity in legal analysis, law students do not similarly see its shallowness. IRAC’s very presence is a legal writing identity crisis. To cure this wicked ill, this Article models Wicked narration of the life of the Wicked Witch of the West, and tells the untold narrative of the Analytical Framework that undergirds IRAC. This illustrative approach demonstrates how legal analysis can reveal the human experience, bridge cultural gaps, give voice to the voiceless, dismantle power and make the law accessible, particularly for those who exist at the margins. Such transformative power frames the process of legal writing, not as an affront to their authentic identity, but as further development of it. In the end, the audience loved Wicked — not because it outshined the Wizard of Oz — but because Broadway finally shared with the world the identity formation of the “Wicked Witch of the West.” Her name is Elphaba, and she’s not so wicked.

The full text is not available for download from SSRN. Curses.

Oseid on What Lawyers Can Learn From Edgar Allan Poe @USTLawMN

Julie A. Oseid, University of St. Thomas (Minnesota) Law School, has published What Lawyers Can Learn from Edgar Allan Poe at 15 Legal Comm. & Rhetoric: JAWLD 233 (2018). Here is the abstract.

Treat yourself to a spine-tingling Edgar Allan Poe sensation by reading about the synergy between stories of horror and legal writing. Poe defined a short-story writing technique and named four qualities — brevity, unity, focus, and brilliant style — as critical. These exact same qualities are familiar to lawyers because they are just as critical for persuasive briefs. This article examines Poe’s critique of Nathaniel Hawthorne’s Twice-Told Tales, reviews some of Poe’s own work, and applies Poe’s advice about great short-story writing to legal writing.

Download the article from SSRN at the link.