When I read most law review articles, I wonder if the authors subconsciously believe
- that the truth is not important,
- that good organization of the writing is something nobody wants, and
- that thinking the ideas through thoroughly is not necessary.
These authors think that it is enough to set forth an interesting new idea, no matter whether half-baked or based on misunderstanding. They assume that nobody will jump down their throats if they make a mistake. And of course they know that there is little danger that a student law review editor will know enough to recognize mistakes. (More peer review would help, provided the peers were practitioners with excellent writing skills. Peer review by other legal academics will not necessarily do very much, for the reasons set forth below.)
Legal academics may have accurately gauged their readership. Few people read law review articles word for word. Most, whether other scholars, litigators or judges, word search for something specific and read no further. But for hiring and promotion, someone may read from page one to the end. For that reader, substandard work could be a problem for the author.
But legal academics, especially younger ones, are hampered by the people to whom they go for help: their own law professors.
Unfortunately, law professors may not have had adequate training in good writing. Some may have had excellent legal writing courses as 1Ls, wonderful high school English teachers, or a college professor who taught them to write. But my observation is that most were not so lucky.
In addition, legal academics rarely have the opportunity to learn good legal writing from a great practicing lawyer. Usually their own law practice has been limited to a couple of years in a large firm. Working on research memos and document production does not make for excellence in writing. Even a judicial clerkship may not be the best preparation, especially if the former clerk does not view scholarship as requiring the same high standards as nis judge expected . Then, too, a judicial opinion can borrow from the parties' briefs and has an inherent organization: there is a question in the motion or appeal that must be answered. A law review article author must develop nis own structure to present nis new idea in the most persuasive and compelling way.
The best writing training I received was when I wrote drafts of briefs for top litigators who demanded the highest standards. This group included Eric Woglom, Ken Herman, Bob Morgan, and David J. Lee, all partners at Fish & Neave in the 1980s, and earlier, David Hartfield at White & Case in the 1970s. The other major source of my confidence about writing comes from what I learned from my husband, Phil Bucksbaum, who in turn learned from his Ph.D. adviser, Eugene Commins, whose father, Saxe Commins, had been an editor for such famous writers as Eugene O'Neill and William Faulkner. Saxe taught Gene taught Phil, and I have always taken Phil's advice to heart. I know of few academic authors who were as lucky as I in their writing mentors.
Of course, I have also always been a serious reader. When I read, I hear. No, I don't read audiobooks. I mean that when I see words on a page or a screen, they somehow come through my ears rather than my eyes. I find that people who write poorly do not hear their own writing. Once they train themselves to do that, their writing improves. See an upcoming post on the TALK METHOD for good writing, too, because that uses what we instinctively do when we speak to make our writing better.
A law professor given a draft of a student paper or article may try to catch the basic idea, but is not likely to see nis role as instructing on structure, paragraphing, and other basic aspects of writing. Law professors may also lack the time, if not the inclination, to train young scholars to write right. True, it is a very time-consuming undertaking.
That is why I have started this series, Advice to a Young Would-Be Patent Law Scholar. Now, when someone asks me for comments, at least some of my reply can be in links.
8/20/11 rjm
rev 11/6/11
