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Leiter on American Legal Thought:
Over at Legal Theory Blog, Larry Solum recommends as his pick of the week a 1997 book review by Brian Leiter on strands of American legal thought: Is There an American Jurisprudence? The 31-page review was just posted to SSRN a few days ago, and it's a pretty good read if you're interested in jurisprudence.
Anonymous:
Leiter's writing style amazes me. Like most philosophers and professors of jurisprudence, his is ridiculously convulted and pedagogical.

As a side note, his commentary on American foreign policy is pretty radical; towards the end of his article he asserts, with no proof, that the U.S. was bent on world domination after WW2. I had heard that law professors were radical. I didn't realize that they were so .... ignorantly radical.
7.16.2005 7:13pm
Craig Oren (mail):
Thanks,Orin, for posting this. I learned a lot about jurisprudence from reading this clearly-written piece But maybe that's because I'm a . . . . law professor. . .
7.16.2005 9:09pm
Mike G:
Leiter's writing style amazes me. Like most philosophers and professors of jurisprudence, his is ridiculously convulted and pedagogical.

Yeah. . . nothing worse than a pedagogical professor.
7.17.2005 12:01am
Anonymous Law Student:
He probably meant pedantic.
7.17.2005 1:07am
Anonymous:
Haha, yes, I meant pedantic.

But seriously, doesn't it ever bother professors that their work is read by a tiny audience? Don't people ever think that they could reach more people by writing in a more accesible style? Leiter's work, however brilliant it may seem to a few people, seems pretty out-there to 99% of the population.

Sorry, I guess readers of this website won't agree with me on this. I'll stop.
7.17.2005 12:10pm
frank cross (mail):
Anonymous, you have a point, but it is misdirected. Amongst the jurisprudence/philosophy types, Leiter is a strong advocate for clarity of language. If you think he is inaccessible, you should realize that he is more accessible than the vast majority of those in the field.

But people use different writing styles for different audiences and there is a reason for this. You wouldn't expect a paper on higher mathematics to be accessible to 99% of the population, so don't assume that an academic paper in other fields should be. In fact, one basis for at least some of the inaccessibility is the very sort of rigor of analysis that academics demand (though this is more true in math than in law). When addressing a broader audience, in an op-ed, professors use a more accessible style but also typically weaker arguments.
7.17.2005 12:38pm
Michael B (mail):
Proof that Leiter can write with probative and mature grace and unmaliced clarity. To state the obvious, this is why blogs like VC are intriguing, refreshing and lacking guile. Leiter's blogging style is itself guile laden, sneeringly dismissive and arrogating in the manner of a bully who's rhetorically efficient and capable of Begala-esque intellections, but is also blithely self-blinded to his formidable shortcomings. But that fact need not reduce to a blanket dismissiveness of all things Leiter, though it does require the temptation to do so to be overcome.
7.17.2005 4:38pm
Anonymous:
Here is a better way to explain what I felt. Orin wrote a series of posts describing good legal writing style. I feel that Orin's legal writing style would lable 90% of Leiter's article as "throat-clearing."

Ok, now I really will stop.
7.17.2005 4:49pm
Atty in Chicago:
Ditto "Michael B", well said.
7.17.2005 4:51pm
PL:
There's no need for Leiter to write blog entries like he writes academic pieces given the different intended audiences. If you found Leiter's article difficult to read, perhaps it's because you know very little about jurisprudence or legal realism. That's not a crime, but it's not Leiter's problem. You wouldn't submit something to the Harvard Law Review intended for a lay audience either.

It's a tragedy that more law students, lawyers, and law professors don't make an effort to understand legal philosophy. The blogosphere is full of political hacks using philosophical vocabulary without being able to philosophically defend their viewpoint. If I have to read another conservative blogger (or poster) write about Originalism, I'm going to be sick. Here's a hint: if you haven't every heard of Joseph Raz or H.L.A. Hart, you probably don't know what you're talking about.

I've read a number of Leiter's articles on legal philosophy and find him to be clear, concise, and witty. (I find that his blog shares those qualities too.) If you'd like to learn more about legal philosophy, several of his articles are certainly a good place to begin.
7.17.2005 7:53pm
Larry (mail):
Pick up an anthology of jurisprudential writings in which Leiter has a piece. Leither is usually one of the easiest to read -- if not the easiest of the bunch. Anyway, PL is right, there really isn't a market in the blogosphere for people who want to engage in serious jurisprudential discussion. Everyone seems to very race to the bottom. If you have a blog, ask yourself if you started that race.
7.17.2005 9:38pm
anonymous coward:
There's someone I'd like Anonymous #1 to meet: she's called Judith Butler...
7.17.2005 9:56pm
Karla Rove:
Heh, Michael B. That was supposed to be an argument in defense of clear writing? Just for starters, you seem to be using the transitive "arrogate" incorrectly, and while "unmaliced" is interesting, it's almost certainly a neologism. 10 points for originality, 4 for clarity.
7.17.2005 11:06pm
Mike G:
I don't understand why people often treat neologisms as categorically unclear. In context they are often lucid.
7.17.2005 11:29pm
Robert Schwartz (mail):
"You wouldn't expect a paper on higher mathematics to be accessible to 99% of the population, so don't assume that an academic paper in other fields should be."

Law isn't math. Its something we all have to live with. If we lawyers, and yes I am one, cannot explain ourselves to ordinary intelligent citizens, we are in a heap of trouble.

And law professors do not get a special pass. None of them are doing something that is so refined that ordinarily intelligent layman should not be able to understand it, if terms of art are properly explained to him.

And I cut no slack for law professors who claim to work on jurisprudence, what ever that may be, although I suspect it is mostly baffelgab designed to prove to the uninitiated how smart the spouter is.
7.18.2005 3:01am
Anonymous Law Student:
What R. Schwartz said.

A lot of that trash (and most of it is, in fact, trash) is no different than the gobbledegook that passes as scholarship in the humanities these days- it's made purposely unreadable to obscure the fact that little is actually going on.

Don't forget the lesson of the famous Social Text hoax.
7.18.2005 3:15am
Justice Fuller:
Robert,

I'm not sure I understand your point. Leiter's writing is much clearer than most writing in jurisprudence. Are you intending to criticize Leiter for still not being clear enough? And while I agree that law should be clear, do you think that a book review on jurisprudence that appears in the Oxford Journal of Legal Studies has to be intelligible to the layman? If so, why?
7.18.2005 3:26am
Larry (mail):
I learned early in law school that calling someone an "unclear writer" is a political statement. People who liked me called me a "good writer" and people who didn't like me called me a "bad writer." In fact, it has come out during discovery that some firms only called the African-Americans "bad writers."

So, since I like Leiter, he is a good writer. Everyone else has a pedantic, boring, writing style and doesn't communicate his ideas well. They really need to work on "basic writing skills" and "communicating their ideas" "clearly."

(By the way, I have never met an exception to the above rule. Everyone does this, and it only explains the importance of sucking up to professors -- including the ones on this board -- in law school. If you don't do it -- and do it so well that people don't know that you are sucking up to them -- then you can forget about being in the top 10%).
7.18.2005 6:59am
PL:
The issue isn't whether you can explain the law or philosophy to a layperson, but whether the layperson is your intended audience when you write in a journal. If in every article, the author laid out the definition of every term of art used, article length would triple. There's no need to explain what a "summary judgment motion" is. If the reader doesn't know, then perhaps he or she should do some background reading first. It's the same thing with jurisprudence. Is this really that controversial?

Robert, if you think jurisprudence is "bafflegab," then I sure hope you're not one of those people whining about judges departing from the original meaning of the constitution. I'm also a bit surprised that you think how judge do and should decide cases aren't subjects worth examining.
7.18.2005 9:40am
LArry88 (mail):
There are a few articles I have read recently in jurisprudence anthologies that do not define the terms they use. Usually these are written by non-lawyer philosophers who seem to like doing this. Indeed, some of the terms are used nowhere else.

But, as bad as it seems, the next article will be written by a lawyer who has been trained to always define terms.

Leiter, to his credit, always defines his terms, even in fairly technical pieces. This might be because most AMerican lawyers write for generalist judges who can't be assumed to understand technical jargon.

Heck, even in administrative practice lawyers define their terms.
7.18.2005 10:14am
anonymous coward:
I'm amazed--and a bit alarmed--at the suggestion that Leiter's clearly written article belongs in the same class as the Social Text hoax. Other than the unsexy subject matter and a couple terms of art, what's difficult about the article? (I'm not even a lawyer, incidentally.)
7.18.2005 10:20am
Anderson (mail) (www):
This thread illustrates the unfortunate phenomenon that, when someone reads something &doesn't understand it, he usually attributes the deficiency to what he's read.

I have a background in lit theory, and even the prize gobbledygook of Judith Miller that op-eds would quote was usually comprehensible to me, though not necessarily very profound. Why does it surprise people that other people in different fields should turn out to have their own jargon?
7.18.2005 1:22pm
Anderson (mail) (www):
Also, it's helpful to read what Leiter actually writes. Instead of

towards the end of his article he asserts, with no proof, that the U.S. was bent on world domination after WW2

what Leiter actually wrote was

An opposed "materialist" history of post-WWII American legal thought might, for example, examine the use of "policy science" at a time when ruling elites were intent on maximizing American opportunities for world domination and exploitation after the war had destroyed both the European colonial empires and the European economies.

This is not quite the same thing. Familiarity with, say, National Security Counsel papers will leave little doubt that "maximizing American opportunities for world domination" was indeed pursued by "ruling elites." The zero-sum theory at the time was that either the U.S. would dominate, or the USSR would, and that the former was clearly preferable--a fair conclusion, given the premises.

Leiter's clearly sympathetic to the materialist approach he describes, which is a "radical" one (cf. his easy citation of Hobsbawm); but that doesn't make him "ignorantly radical."
7.18.2005 1:53pm
Larry (mail) (www):
Consider also that lawyers often sometimes speak in terms of rules or statutes which have numbers associated with them. As lawyers, we know what 12(b)(6), Cohan, Miranda, Chevron, 60(b), "Rule 11" (even though there are two important Rule elevens), Sec. 1983, "cram down," "estoppel," and 30(b)(6) all mean. Heck some people use these things as verbs. Non-lawyers they say it is jargon. (I actually put all these things into a single sentence once, but I was told to break it up.) But all lawyers will explain what it means, provide a citation to the full rule, or provide its text in a footnote.

Of course, a lawyer is likely to construe these things in his favor if he has to explain it to someone whose interests differ from his, but that is the nature of life.
7.18.2005 2:21pm
Paul Gowder (mail):
That essay is about as un-convoluted as you can get. I offer, for comparison (admittedly, a translation from German), Habermas's "Moral Consciousness and Communicative Action," which took me weeks to read. (Or perhaps "Between Facts and Norms," which is more legal-philosophical than MCCA.)

I can read Leiter's piece at approximately normal speed for reading academic stuff, perhaps even a little faster. There's certainly no comparison with the critical theory stuff or the like.
7.18.2005 4:21pm
Robert Schwartz (mail):
Justice Fuller:
"Leiter's writing is much clearer than most writing in jurisprudence. Are you intending to criticize Leiter for still not being clear enough?"

I have no criticism for Leiter as a writer or stylist. My view of him as a man and of his politics, leads me to an utter disinterest in what he has written. I wouldn't waste the electrons to download one of his articles.

Nonetheless, saying that he is much clearer than other writers on jurisprudence is like saying that double espresso is much clearer than Turkish coffee. It is, to use a term of art, a confession and avoidance. Both coffees are opaque.

"And while I agree that law should be clear, do you think that a book review on jurisprudence that appears in the Oxford Journal of Legal Studies has to be intelligible to the layman? If so, why?"

Look, its a free country, the Oxford Journal of Legal Studies can publish what they like. If it is a series of coded messages for a coterie or merely a display of academic plumage for other academics, fine. Just don't expect outsiders to acknowledge that anything worthwhile is going on their. My own attitude is that if I can't understand it, its the author's problem, not mine. The author's job, any author is to communicate with his audience. If the potential audience is 15 academics, the author has to accept that his light will be hidden by a bushel. If the author wants to influence anything outside of his little world, he needs to reach out to it, because the world will not reach out to him.

Lawyers, who write about the law, which binds every citizen, have a professional obligation to communicate with an audience larger than than their tenure review committee. The audience may only be other lawyers outside his sub-specialty, but communicate they must.

PL:
"Robert, if you think jurisprudence is "bafflegab," then I sure hope you're not one of those people whining about judges departing from the original meaning of the constitution."

I am a hard-core conservative, if you think that invalidates what I say, that is your problem. What I don't understand is why you think there is correlation between being a conservative or an originalist (if the two categories do not overlap in your mind) and disdaining law professor babble. I have known lots of trial lawyers who have hated law professors and who were not at all conservative.

"I'm also a bit surprised that you think how judge do and should decide cases aren't subjects worth examining."

Knowing how judges decide cases is a core skill of being a practicing lawyer in this time and place. The question is whether academic jurisprudence has anything to do with that skill. My casual observation from 30 years of practice is that it does not. I have never talked to another practicing lawyer who has said that reading the Oxford Journal of Legal Studies is absolutely indispensable to his professional success. I have talked to a bunch of them who have said that academic legal writing is at best useless.
7.18.2005 4:42pm
Larry (mail):
What I don't get is why being a "trial lawyer" and a "hard core conservative" are mutually exclusive. Granted, I rarely talk to non-lawyers, so maybe I am missing something.
7.18.2005 5:10pm
Paul Gowder (mail):
Robert Schwartz:

Respectfully, are you nuts?

You implicitly characterize Leiter's piece as either "a series of coded messages for a coterie or merely a display of academic plumage for other academics" in the same breath as you admit you haven't read it? You seem to suggest that merely because Leiter is a law professor who teaches jurisprudence his articles will have that quality. You deductively reason from the fact of Brian Leiter's academic post to the predicted incoherence of his crystal clear article. That's insane. There's a world of difference between totally clear law professor writing (Larry Lessig, Richard Posner) and totally obscure opaque law professor writing (I'll be generous and leave off any examples).

I guess self-confessed "hard-core conservative[s]" believe they have the ability to infer that downloading articles from certain persons will be a "waste [of] electrons." Where is the hard-core conservative crystal ball shop? Do you let liberals shop there too? Because I'd really like to know what texts will be a waste before I read them. It would save me a LOT of effort.
7.18.2005 5:21pm
Stephen M (Ethesis) (mail) (www):
Leiter's writing is much clearer than most writing in jurisprudence.

Well, how many posters read the article? I did.

Now I don't agree with much of what Leiter writes, though I'm sure he has changed my mind more than I've changed his (since he has changed my thoughts on some things), but this article is very clear, easy to understand and well written.

I can see why it was recommended.


why being a "trial lawyer" and a "hard core conservative" are mutually exclusive -- that is because "trial lawyer" is generally used to describe only Plaintiff's lawyers and only when they are being attacked by the right.
7.18.2005 9:08pm
Larry (mail):
Oh, so people who represent primarily civil defendants and prosecutors, although their they "do" trials and are attorneys are not "trial lawyers."
7.18.2005 9:18pm
Robert Schwartz (mail):
Paul Gowder: Take a deep breath and read what I wrote.

Stevphen M.: you too, deep breath, and read what I wrote. Some trial lawyers are conservatives. Some trial lawyers are liberals. I know both sorts. I have not classified them on the basis of the relation between their practice and their politics.
7.18.2005 10:00pm
Stephen M (Ethesis) (mail) (www):
I'm guessing you meant me ... though that is a different spelling of my name ;)

I was explaining why so many think that


being a "trial lawyer" and a "hard core conservative" are mutually exclusive


Not saying that they are. Big, big difference. I was trying to explain the perception, not endorse it as reality.


Some trial lawyers are conservatives. Some trial lawyers are liberals. I know both sorts.


I'm a litigator, so I know a fair number, meet new ones every week -- and I'd agree. Not to mention, "trial lawyer" may be a short hand, but there are plenty of people who try cases on boths sides of the bench.
7.18.2005 11:48pm
Robert Schwartz (mail):
Stephen M: My appologies on the typo.
7.19.2005 1:26am
Michael B (mail):
Karla, zero points for comprehension, the same for wit. Your comprehension being of a piece with PL's.
7.19.2005 1:00pm