Law Commons^™

Numbers, Patrick Barry

Articles

Numbers can be numbing. Depend too much on them to make your case, pitch your product, or tell your story, and you risk losing your audience. This essay offers a way to way to use numbers—both large and small—in a manner that is at once more compelling and more concrete.

Errors And Insights, Patrick Barry

Articles

In Seeing What Other's Don't, the psychologist Gary Klein suggests that only focusing on reducing errors limits our ability to improve. We also need to spend time increasing insights. This short essay applies Klein's approach to writing and editing.

Rhetorical Repetition, Patrick Barry

Articles

When it comes to persuading judges, boardrooms, or even just co-workers, many lawyers shy away from repetition. They remain committed to the idea, often developed in college, that good writing is associated with having (and showing) a big vocabulary. They mistakenly think the best thesaurus wins. This essay explores that error and offers ways to correct it.

On Lawyers And Copy Editors, Jonathan I. Tietz

Michigan Law Review

Review of Benjamin Dreyer's Dreyer's English: An Utterly Correct Guide to Clarity and Style.

Corresponding Ideas In Corresponding Forms, Patrick Barry

Articles

Don’t make the mistake of thinking that content always comes before structure. You don’t need to figure out all your ideas before you decide how to organize them. Much value can come from going in the opposite direction: first figure out how you are going to organize your ideas—their appropriate structure—and then determine the appropriate content. I often offer law students the following suggestion: “Once you find the right structure, perhaps it will be easier to find the right content.”

Uselessly Accurate, Patrick Barry

Articles

There is an accuracy that defeats itself by the overemphasis in details," Justice Benjamin Cardozo wrote in his 1925 collection Law and Literature and Other Essays and Addresses. The problem hasn't gone away, as any reader of legal briefs, contracts, and memos can attest. This essay offers a few ways to help.

Good Sentences, Patrick Barry

Articles

To write good sentences, you need to read good sentences. Skilled writers and editors know this, so they seek out good sentences wherever they can find them—the short stories of Alice Munro, the political essays of William F. Buckley, even well-crafted cartoons, speeches, and advertisements. They read not just with voracity but also with an eye toward larceny, always on the lookout for moves that they can learn and repurpose.

The Most Revealing Word In The United States Report, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

Shot Selection, Patrick Barry

Articles

One of the more common pieces of writing advice in our post-Hemingway world is to keep sentences short. Experts on legal writing are particularly fond of this Position — and for good reason. Few judges look at the sentences that appear in briefs, memos, statutes, and contracts and say, "You know what each of those could use? More words." Professor Noah Messing does a particularly good job making the case for short sentences. Brevity, he explains, "reduces the risk that your writing will confuse or irk readers," especially given that "empirical studies show that writing verbosely makes writers sound dumber …

Paragraphing, Patrick Barry

Articles

Consider treating the word paragraph as a verb. Think of it as something you can do well or poorly, with major consequences for your readers. Good paragraphers, for example, help readers. They make it easy to navigate and absorb information. They don’t flit around, hastily moving on to the next point before fully supporting their first. Nor do they get stuck for too long in one place. Instead, they give a lot of thought not just to the ideas but also to their arrangement—their shape, their balance, their pace.

Editing And Empathy, Patrick Barry

Articles

Design begins with empathy.” I recently wrote that on the board during a class for students in the Child Welfare Appellate Clinic at the University of Michigan Law School. I thought it might help them write better briefs. I got the idea from Ilse Crawford, whose work as an interior designer can be seen all over the world—from airport lounges in Hong Kong, to fancy restaurants in London, to pear-shaped stools at IKEA. In Crawford’s view, “empathy is a cornerstone of design.”1 She thinks it is important to understand the spaces and products she creates from the perspective of the …

What We Still Don't Know About What Persuades Judges – And Some Ways We Might Find Out, Edward R. Becker

Articles

Over 25 years ago, in his foreword to the first volume of Legal Writing, Chris Rideout nailed it: legal writing as actually practiced by lawyers and judges needs to improve, “[b]ut more fundamental inquiry into legal writing...is needed as well.” The intervening decades have seen many laudable efforts on the latter front, as our collective scholarly discipline, then in its infancy, has matured. But one particular question that Rideout identified remains largely unaddressed by our discipline, although recent developments suggest a welcome increase in attention to the topic. Specifically, Rideout explained that our field did not know as much as …

The Words Under The Words, Patrick Barry

Articles

The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%” — even though a survival rate of 90% is exactly the same as a mortality rate of 10%. They’ve also found that having to pay a “surcharge” for using a credit card rankles people (especially people in the credit card lobby) more than if they were simply told …

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Michigan Journal of Environmental & Administrative Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

Jack Sammons As Therapist, Jospeh Vining

Articles

Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.

What Is "Good Legal Writing" And Why Does It Matter?, Mark Osbeck

Articles

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a solid conceptual framework to ground the individual rules and suggestions. This Article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal …

The Imagination Of James Boyd White, Lee C. Bollinger

Michigan Law Review

For several decades, James Boyd White has been a unique voice in the law. It is a voice of extraordinary intellectual range, of erudition and of deep commitment to a life of self-understanding and of humane values. His point of access is language - all language, in every context. Armed y a lifetime of thought about words, he justifiably has regarded no field or discipline or communicative activity as foreign and outside his ken. Whoever reads him must feel his sense of intellectual empowerment that our world, sectioned as it is by expertise, would deny us.

Speech, Silence, And Ethical Lives In The Law, Robin West

Michigan Law Review

As his many appreciative readers know, James Boyd White brought his learning to bear on the relation between ethical living and ethical speaking, and particularly as it pertains to how we live and speak in law. His prodigious writing, teaching, and speaking career, as far as I can tell, was motivated by a singular, passionate belief: that the human capacity for language can and should serve as a bridge from mind to mind and spirit to spirit, so that we might cohabit the earth not only peaceably, but with the pleasures and grace of each other's company. Language, White taught, …

Educative Friendship - A Personal Note, Jeanne Gaakeer

Michigan Law Review

In 1992, when I started my doctorate research in the interdisciplinary field of Law and Literature, The Legal Imagination was one of the first books I read. To European eyes, it was a most unusual book since in continental legal theory in those days, the Anglo-analytical tradition was predominant, and French deconstruction had for some time been the up-and coming stream. Fascinated as I became with Professor White's works, I decided to try to get in contact with him in order to ask him about the genesis of his ideas. So much for the dangers of the intentional fallacy Whimsatt …

Interview With James Boyd White, James Boyd White

Michigan Law Review

The occasion of the following interview was the Montesquieu Lecture at the University of Tilburg, which Professor James Boyd White delivered in February 2006. In the lecture, entitled "When Language Meets the Mind," Professor White discussed the manner of interpreting and criticizing texts, both in the law and in other fields, that he has worked out over his career. The heart of this method, as described in the lecture, is to direct attention to three sets of questions: - What is the language in which this text is written, and the culture of which it is a part? How are …

A Teacher, H. Jefferson Powell

Michigan Law Review

James Boyd White is, above all, a teacher. Of course, that is in fact an inexact statement: Jim White is many things, some of them of greater or more central human importance - husband, father, friend, person of faith. But in this essay my concern is with Jim as an academic, and in that context I believe the title teacher captures best his goals and his achievement.

Restyling The Civil Rules: Clarity Without Change, Edward H. Cooper

Articles

Devoted fans and casual users of the Federal Rules of Civil Procedure will feel mixed emotions on contemplating the Style Project that aims to rewrite every rule from Rule 1 to the end. Well they might. The Style Project's purpose is simply stated. The Civil Rules, created in an inspired fit of creativity, have been amended repeatedly over the years. Experience has shown that even inspired initial drafting could not avoid all misadventures and that amendments drafted by successive generations wielding different drafting tools do not always fit well. The present rules can be reworked to say more clearly what …

The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Michigan Law Review

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …

Where Is My Body? Stanley Fish's Long Goodbye To Law, Richard Delgado

Michigan Law Review

Stanley Fish, author of Doing What Comes Naturally, Is There a Text in This Class?, There's No Such Thing as Free Speech, and It's a Good Thing, Too, and other paradigm-shifting books, and who recently left law teaching for a position in university administration, has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or …

Fuller And Language, Joseph Vining

Book Chapters

His style made him distinctive. His substance made him distinctive. The two crossed, were genetically related as we now say. Style and substance each drew on and was implied by the other. One point of their crossing was his sense of the nature of human language; what language was and could be, what it was not and could never be. In 1930, early in his work, Fuller took up the problem of language in a series of articles. Toward the end of his time he republished this initial ground-establishing effort as the little book we now have, Legal Fictions, …

Some Examples Of Using Legal Relations Language In The Legal Domain: Applied Deontic Logic, Layman E. Allen

Articles

The fundamental concept of the LEGAL RELATIONS Language (LRL) is the recursively-defined notion of LEGAL RELATION (LR). As LR is defined here, there is an infinite number of different LEGAL RELATIONS, and LRL is a language for precisely and completely describing each of those infinite number of dfferent LEGAL RELATIONS. With its robust collection of dfferent names, one for each of the different LEGAL RELATIONS, LRL provides adequate vocabulary for (1) describing every possible legal state of affairs, (2) accounting for every possible change from one legal state of affairs to another, (3) representing every possible legal rule, and (4) …

Pomobabble: Postmodern Newspeak And Constitutional "Meaning" For The Uninitiated, Dennis W. Arrow

Michigan Law Review

A parody of postmodern writing.

Why I Write, James Boyd White

Articles

It is a great honor for me to speak to you on this occasion, celebrating the publication of such an original and important book. It is a pleasure of a different kind as well, for Lash LaRue is an old and good friend, and I welcome the chance to join with others in congratulating him.

What's An Opinion For? (Special Issue: Judicial Opinion Writing), James Boyd White

Articles

The question the papers in this Special Issue address is whether it matters how judicial opinions are written, and if so why. My hope here is to suggest a way of elaborating the ques­tion that may provide the reader with a useful point of departure for reading the more extensive papers that follow.

Controlling Inadvertent Ambiguity In The Logical Structure Of Legal Drafting By Means Of The Prescribed Definitions Of The A-Hohfeld Structural Language, Layman E. Allen, Charles S. Saxon

Articles

Two principal sources of imprecision in legal drafting (vagueness and ambiguity) are identified and illustrated. Virtually all of the ambiguity imprecision encountered in legal discourse is ambiguity in the language used to express logical structure, and virtually all of· the imprecision resulting is inadvertent. On the other hand, the imprecision encountered in legal writing that results from vagueness is frequently, if not most often, included there deliberately; the drafter has considered it and decided that the vague language· best accomplishes the purpose at hand. This paper focuses on the use of some defined terminology for minimizing inadvertent ambiguity in the …