Legal Writing and Research Commons^™

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.

Transferability: Helping Students And Attorneys Apply What They Already Know To New Situations (Part 1), Edward R. Becker

Articles

Every fall, I work with my first year law students to begin developing their legal writing skills. They work hard learning how to analyze cases objectively, predict how a court might resolve a dispute, and convey their assessments to an experienced attorney. Their improvement from September to December is noticeable. They have only one semester of law school behind them and still have much to learn, but they’re on their way…In the second semester, we begin focusing on advocacy. The first assignment asks students to draft a pretrial brief. When I review the drafts, I’m struck by how many problems …

Research Resources For Michigan Criminal Law, Kate E. Britt

Law Librarian Scholarship

Few areas of the law are as consequential to the personal lives of those involved as criminal law. The law can, and does, change quickly, and attorneys need to stay abreast of the latest developments to effectively represent their clients. Thankfully, modern government bodies publish current primary law (and many useful secondary sources) online. The sites outlined below will take users to reliable sources of Michigan criminal law and procedure.

Review Of Draft No. 4, Beth Hirschfelder Wilensky

Reviews

"Draft No. 4" is an essay collection by John McPhee about his long career as a journalist for The New Yorker. This book review uses the essay collection as a jumping-off point to discuss the similarities and differences between legal writing and long-form journalism, and what legal writers can learn about the writing process from journalists like McPhee.

Books, Debate, Specificity, Neal Kumar Katyal

Michigan Law Review

Foreword to Volume 117, Issue 6 of the Michigan Law Review.

Social Freedom, Democracy And The Political: Three Reflections On Axel Honneth's Idea Of Socialism, Stephen W. Sawyer, William J. Novak, James T. Sparrow

Articles

Axel Honneth’s Idea of Socialism is an important clarion call for an urgent rethinking of the possibilities of a socialism for the twenty-first century. One of the most surprising and satisfying aspects of Axel Honneth’s timely new book is its recovery of the continued vitality of John Dewey’s pragmatic democratic philosophy. These reflections on Honneth’s use of John Dewey for democratizing social freedom, take stock of and explore the political limits of Honneth’s social reconstruction.

The Most Revealing Word In The United States Reports, 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 …

Review Of Rights And Demands: A Foundational Inquiry, Nicholas B. Cornell

Reviews

No abstract provided.

Buckets, Kincaid C. Brown

Law Librarian Scholarship

Inspired by “‘A Day in My Law Library Life,’ Circa 1997,” this compilation collects descriptions of a day in the lives of law librarians in 2018. The descriptions provide a current snapshot and historical record of the law library profession, with similarities to, and differences from, the profession of 1997.

How Many Copies Are Enough Revisited: Open Access Legal Scholarship In The Time Of Collection Budget Constraints, Kincaid C. Brown

Law Librarian Scholarship

This article discusses the results of a study into the open access availability of law reviews, followed by a discussion of why open access has such a high rate of adoption among law reviews, especially in comparison to the journal literature in other disciplines.

When Law Calls, Does Science Answer? A Survey Of Distinguished Scientists & Engineers, Shari Seidman Diamond, Richard O. Lempert

Articles

Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation’s most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant …

Collaboration With Doctrinal Faculty To Introduce Creac, Beth Hirschfelder Wilensky

Articles

When legal writing professors introduce CREAC (or IRAC, TREAT, etc.), our examples necessarily use some area of substantive law to demonstrate how the pieces of legal analysis fit together. And when we ask students to try drafting a CREAC analysis, they also have to learn the relevant substantive law first. Students might be asked to analyze whether a worker is an employee or independent contractor or whether the elements of a tort claim are satisfied. But that means that students need to learn the relevant substantive doctrine while they are also grappling with the basics of CREAC. In the language …

The Rule Of Three, Patrick Barry

Articles

Judges use the Rule of Three. Practitioners use the Rule of Three. And so do all manner of legal academics. Yet although many people seem to have an intuitive feel for how useful this rhetorical move is, no extended explanation of its mechanics and variety of forms exists. This essay offers that explanation. It begins with an introduction to the more straightforward form of the rule of three, which simply involves arranging information not in twos or fours or any other set of numbers-but rather in the trusty, melodic structure of threes. It then moves on to a closer look …

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 …

Alliteration, Restraint, And A Mind At Work, Patrick Barry

Articles

Alliteration is great—until it’s not. You can pretty quickly overdo it, though I don’t think any major professional sports franchise has yet. The Boston Bruins, the Seattle Seahawks, the Cleveland Cavaliers: these names all have a nice ring to them. As do countless others, from the Washington Wizards to the Tennessee Titans to the Buffalo Bills. The sounds run quickly off your tongue and not unpleasantly into the air. They’re not irritating or obnoxious—unless maybe you’re a fan of the opposing team.

Show And Tell, Patrick Barry

Articles

“Show don’t tell.” Teachers preach these words. Style guides endorse them. And you’d be hard pressed to find any editor or law firm partner who hasn’t offered them as feedback in the last year, month, week, maybe even day. There’s only one problem: “Show don’t tell” is bad advice. Or at least, it is incomplete advice.

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.

Using Appellate Clinics To Focus On Legal Writing Skills, Timothy Pinto

Articles

Five years ago, I went to lunch with a colleague. I was teaching a legal writing course to 1L students, and he taught in a clinic in which 2L and 3L students were required to write short motions and briefs. Several of his students had taken my writing class as 1Ls, and he had a question for me. "What the heck are you teaching these students?" he asked as we sat down. He explained that several of his students were struggling with preparing simple motions. They were not laying out facts clearly. They were not identifying key legal rules. In …

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 …

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 …

Books Have The Power To Shape Public Policy, Barbara Mcquade

Michigan Law Review

In our digital information age, news and ideas come at us constantly and from every direction—newspapers, cable television, podcasts, online media, and more. It can be difficult to keep up with the fleeting and ephemeral news of the day.

Books, on the other hand, provide a source of enduring ideas. Books contain the researched hypotheses, the well-developed theories, and the fully formed arguments that outlast the news and analysis of the moment, preserved for the ages on the written page, to be discussed, admired, criticized, or supplanted by generations to come.

And books about the law, like the ones reviewed …

The Infinite Power Of Grammar, Patrick Barry

Articles

Good lawyers know that effective advocacy requires more than just choosing the right words; it also requires choosing the right word order. The formal term for this choice is “syntax.” But perhaps a better description comes from a 1976 essay by Joan Didion called “Why I Write.”

In it, Didion draws a helpful parallel between the arrangement of a photograph and the arrangement of a sentence. “To shift the structure of a sentence,” she notes, “alters the meaning of that sentence, as definitely and inflexibly as the position of the camera alters the meaning of the object photographed.” Didion refers …

Debating Is The Constitution Special?, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe

Articles

In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology …

Judge Kozinski Objects, Beth H. Wilensky

Articles

Sitting judges don’t get to practice law. So although they often opine on the dos and don’ts of effective advocacy, we rarely get to see them put their advice into practice. But a few years ago, a class-action lawsuit provided the rare opportunity to witness a federal judge acting as an advocate before another federal judge—if not in the role of attorney, then certainly in as close to that role as we are likely to see. Given the chance to employ his own advice about effective advocacy, would the judge—Alex Kozinski—practice what he preaches? Would his years of experience on …

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 …

An Invisible Crisis In Plain Sight: The Emergence Of The "Eviction Economy," Its Causes, And The Possibilities For Reform In Legal Regulation And Education, David A. Dana

Michigan Law Review

Review of Evicted: Poverty and Profit in the American City by Matthew Desmond.

Justice Scalia And The Idea Of Judicial Restraint, John F. Manning

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Foreword: The Books Of Justices, Linda Greenhouse

Michigan Law Review

For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. To begin with, I should define what I mean by “books". For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like …

Digging Into The Foundations Of Evidence Law, David H. Kaye

Michigan Law Review

Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …