The Volokh Conspiracy

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. . .

He probably meant pedantic.

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.

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.

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.

There's someone I'd like Anonymous #1 to meet: she's called Judith Butler...

I don't understand why people often treat neologisms as categorically unclear. In context they are often lucid.

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.

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%).

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.

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?

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.

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.

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.

Oh, so people who represent primarily civil defendants and prosecutors, although their they “do” trials and are attorneys are not “trial lawyers.”

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.

Karla, zero points for comprehension, the same for wit. Your comprehension being of a piece with PL's.