The Volokh Conspiracy

State v. Willan (Ohio June 12, 2013) involves statutory construction; the court rules, 4-3, that the statute under which defendant was convicted unambiguously applies to defendant, but the dissent argues that the statute is ambiguous and that defendant should prevail because of the Rule of Lenity. The statute reads as follows:

Except when an offender commits a violation of section 2903.01 or 2907.02 of the Revised Code and the penalty imposed for the violation is life imprisonment or commits a violation of section 2903.02 of the Revised Code, if the offender commits a violation of section 2925.03 or 2925.11 of the Revised Code and that section classifies the offender as a major drug offender and requires the imposition of a ten-year prison term on the offender, if the offender commits a felony violation of section 2925.02, 2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, or 4729.61, division (C) or (D) of section 3719.172, division (C) of section 4729.51, or division (J) of section 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender, if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of section 2907.02 of the Revised Code and, had the offender completed the violation of section 2907.02 of the Revised Code that was attempted, the offender would have been subject to a sentence of life imprisonment or life imprisonment without parole for the violation of section 2907.02 of the Revised Code, the court shall impose upon the offender for the felony violation a ten-year prison term that cannot be reduced pursuant to section 2929.20 or Chapter 2967. or 5120. of the Revised Code.

Acting Chief Justice Pfeifer’s dissent reads, in its entirety:

I join Justice Lanzinger’s well-reasoned dissent, but write separately to highlight the General Assembly’s failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put.

In my First Amendment Amicus Brief Clinic this Fall, students will naturally be told to write clearly, concretely, and precisely, with sound reasoning and in a calm, credible tone. But while that’s important, it does help to have some flair, some wit, and even some eloquence, if it doesn’t undermine the other requirements.

Naturally, this sort of thing doesn’t come easily even to experienced writers, much less to students Indeed, attempts at wit and eloquence often backfire, for instance if they sacrifice a precise description for a more colorful but imprecise one, or if they make the brief seem strident or exaggerated. They also risk distracting the reader instead of winning him over. At the same time, a colorful and memorable way of putting something, especially when it captures the moral or practical truth at the heart of the argument, can help move the reader to see things your way.

I’d therefore like to show students some particularly effective passages, from briefs filed in court, that have a suitable (which I think in this case must mean subtle) wit or eloquence. Can any of you recommend some examples? Please post the relevant passages in the comments, together with a citation to the brief itself. I am not looking for such passages from judicial opinions; judges can get away with things that lawyers cannot. I’m also not looking for entire briefs — I’ll have my students read several briefs that are generally quite effective, but for this part of their education I’d like to give them just short excerpts. Many thanks to those of you who can help with this.

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m not sure why Justice Scalia thought it necessary to make such a point in this case; maybe he’d seen similar things in other briefs and hadn’t mentioned them then, but this time he thought he ought to say something. But my sense of his point is simply, “Counsel, make things easy on us — if you use a term we don’t know, define it.”

UPDATE: For a related complaint about overuse of abbreviations, see this Legal Times item quoting Judge Laurence Silberman.

Law review editors: If you publish the abstracts to your articles in italics, please stop. Big blocks of italics are harder to read than ordinary Roman text; that’s why you don’t see books, articles, or newspapers printed all in italics.

There are many ways that you as publishers can use to set off the abstract from the rest of the article — spacing, indentation, borders, and more. There’s no reason you have to use italics for this, and there’s ample reason not to use italics. Nor is there some deeply entrenched custom of using italics: many law reviews indeed don’t print abstracts in italics, but unfortunately quite a few still do. If you’re on the Dark Side of this, come over to the right side.

Some time in the next several months, I’ll be putting together the fifth edition of my Academic Legal Writing book. If you’ve used the book in your writing, or supervised students who have, are there any additions, changes, or other improvements that you could recommend? Many thanks!

I just stumbled across the following in a law review article: “[so and so] recently published a book-length project.” This book-length project is otherwise known as a “book.” The author of the offending phrase is generally an excellent writer, so it happens to the best of us.

Back in April, Eugene blogged this book, written by my friend, fellow Justice Kennedy alumnus, and fellow Rolling Stones fan Ward Farnsworth, who is a law professor at Boston University.  I have since been able to read the book, and add my enthusiastic endorsement. 

The book is divided into eighteen chapters, each of which analyzes a classical rhetorical technique, explaining how to use it effectively and providing many examples from literature.  There are six chapters on using the repetition of words (e.g., simple repetition/repetition at the start of a sentence, the end, or both/repetition of the root); six chapters on sentence structure (parallel structure/reversal of structure/inversion of words); and six chapters on dramatic devices (rhetorical questions/correcting oneself/breaking off in midstream/saying things by not saying them). 

I have always been a big fan of parallel structure (which I now know is “isocolon,” although I will promptly forget it).  But I had no idea of the breadth of ways it has been used.  Thus, for example, the book discusses the ways the device can be used to make two claims about the same subject.  They can be consistent claims:

He was a morose, savage-hearted, bad man: idle and dissolute in his habits; cruel and ferocious in his disposition. (Dickens, The Pickwick Papers (1837))

But parallel structure can also be used to make comparisons and emphasize contrast (the second example is my particular favorite).

Married in haste, we may repent at leisure. (Congreve, The Old Bachelor (1693))

The louder he talked of his honor, the faster we counted our spoons.  (Emerson, Worship (1860))

All-strong without, he is all-weak within. (Churchill, radio broadcast to the United States (1938))

The book’s use of examples makes reading it doubly enjoyable.  It is not only an interesting book on a fascinating subject (and surprisingly readable given the academic nature of the subject); it is also a collection of great writing that is well edited and organized.  There are many passages that beg to be read aloud—and which, indeed, I have read aloud to my wife—a hallmark of great writing.  The examples both aptly illustrate the principles they exemplify, and also simply entertain. 

Law students and young lawyers sometimes ask me how they can become better writers.  The first thing I tell them is to practice, and to work on becoming a critical reader and self-editor.  The other thing I tell them is to read good writing.  As the Chief Justice told Bryan Garner (p.39), “[t]he only good way to learn about writing is to read good writing.”  Both this book and the excerpts it contains fall into that category. 

My one complaint is the dearth of Stones lyrics in the book.  But I guess you have to leave something for the Second Edition.

One of the commenters to Eugene’s write-up expressed his wish that it were available in electronic form.  It apparently now is, as a Google eBook here (don’t know if it works for Kindle, but apparently works for iPad).

You know there’s trouble ahead when you see, in an early footnote to a law review article (31 U. West Los Angeles L. Rev. 257 (2000)),

Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis hereunder have been italicized, bolded or capitalized accordingly.

When my kids were small , both took music lessons (and as many of you know, my son Sam is forging ahead with a career as a pianist), and, as a result, I heard an enormous amount of really badly-played music; I probably went to 75 or 100 school-wide recitals and performances, and while they were all immensely delightful and uplifting – there is simply nothing more magical than watching kids make music, no matter what it sounds like – the musical bottom line is that 9 year old kids, even really talented 9 year old kids, can’t be expected to make beautiful music, and by and large they don’t. I realized, though, that I learned an enormous amount about music and music performance from listening to it badly-played, because it helped me to think about, and to appreciate, exactly what it is that is involved in playing music beautifully.

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing):

Judge Greenlights Cell Phone App Copyright Claims
Shannon P. Duffy
The Legal Intelligencer
January 07, 2011

THE TEXT OF THIS ARTICLE HAS BEEN REMOVED, AS A RESULT OF A DMCA TAKEDOWN NOTICE THAT WE RECEIVED FROM AMERICAN LAWYER MEDIA. I’LL POST SOMETHING ABOUT THAT SEPARATELY – IT’S A RIDICULOUS COPYRIGHT INFRINGEMENT CLAIM, IN MY VIEW, BUT I’M NOT WILLING TO HAVE ALM TAKE US TO COURT OVER IT. BUT YOU’LL JUST HAVE TO TAKE MY WORD FOR IT THAT IT’S LOUSY LEGAL WRITING .... SEE BELOW.

So – what makes it lousy legal writing? To begin (and to end) with: I have now read this through 3 or 4 times, and I still can’t figure out what the hell happened here. The first thing Ms. Duffy tells us is that Judge Jones “found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.” Now, I haven’t read Judge Jones’ opinion, but I would bet that this dog-bites-man “finding” – cell phone apps are a burgeoning and lucrative enterprise!! no kidding! — has absolutely nothing to do with the legal issues that he was resolving. So I’m off on the wrong foot at the very start.

There’s a pretty standard formula for writing about legal issues, and it’s a good one: start with the facts, describe the claims the parties made on the basis of those facts and the arguments they made in support of those claims, tell me what the court ruled, and then tell me why it ruled that way. Here, though, I don’t know the basic facts of who did what until paragraph 7, where the apps are described; then I have to go back and re-read the earlier paragraphs to figure out what the claims were; then I have to go forward again, to figure out what the court did, where I’m told that it dismissed Hershey’s counterclaims for infringement, “finding that [Hershey’s] team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.” Aaargh. That doesn’t really help me at all; I can sort of figure out what it means, but you’re making this awfully hard. And then, after that, Ms. Duffy goes on to tell me what arguments the parties made in support of their claims – requiring me to retreat once again and see how this new information helps me understand what the court ruled. It’s all horribly out of order and, as a consequence, it is incredibly difficult for the reader to understand what is, in fact, a very, very simple story. C minus, at best.

Though I’m not that much of an NFL football fan, I can’t help but noticing the extraordinarily good writing of Mike Tanier, who writes for FootballOutsiders.com (and the New York Times from time to time). Here are some examples, from his discussion of this week’s games:

On the Jets v Browns: “Eric Mangini is on a cross-country quest to silence his doubters, joined by a ragtag company of spunky rookie quarterbacks, castoff veterans, fleet-footed punters and other misfits. Having conquered the defending champion Saints and vanquished his mentor Bill Belichick, Mangini hosts the Jets, whom he coached through his metamorphosis from Boy Genius to baby-faced Machiavelli before being ripped apart by the tectonic forces of Big Apple expectations and Brett Favre egocentrism.”

And even better, Seahawks v. Cardinals: “The N.F.C. West stages one of its sad little round robins this week to see who gets to go 8-8 and lose, 31-7, to the Saints or Eagles in the playoffs. It’s like a college basketball-style play-in. In fact, don’t give the N.C.A.A. any ideas, or the winner of this game will face the winner of Canisius versus Towson University.”

And Eagles v. Redskins: “All of the campaign strategists who produced effectively virulent political smear advertisements went straight to Washington after the election and, with nothing else to do for 11 months, started writing the copy for Mike Shanahan’s news conferences. Shanahan & Son (you can picture the truck and junkyard in your head, can’t you?) stopped just short of accusing Donovan McNabb of shipping jobs overseas, but they effectively created a divisive, rancorous environment that will make it impossible to get anything done. In other words, our nation’s capital gets the football it deserves.”

Really terrific stuff.

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible.

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.”