LANGUAGE AT LAW SCHOOL.

Mark Liberman at Language Log has an interesting and depressing post about how lawyers pick up crazy ideas about language. He quotes John W. Brewer:

… a key part of law review culture is a hyperlegalistic concern with details of style and usage, and an almost pathological fear of exercising discretionary judgment among plausible alternatives. For any style/usage issue, the notion is that there must be a rule, and you can look the rule up in an authoritative source, and once you’ve done that you should follow the rule strictly, both in your own writing and especially in seizing opportunities to make petty corrections to the writing of others. The so-called “Blue Book” provides most of the obsessive-compulsive detail on matters of abbreviation and the like (should the U.S. Court of Appeals for the Second Circuit be abbreviated “(2d Cir.)” or “(2nd Cir.)”? For God’s sake, don’t guess! Look it up!). But it doesn’t deal directly with many issues of prose style where people like this intuitively sense that There Must Be a Rule. For that, many law review types use as their authoritative source the Texas Law Review Manual of Usage and Style (MoUS), which I dimly recall from unhappy encounters with it circa 1990 as having a particularly obsessive and wrongheaded view of the that/which issue…

While as an editor I certainly object to the idea that looking up matters of style is “obsessive-compulsive,” it is unfortunate that so many style manuals take prescriptivism to absurd lengths, and apparently this is worst than most. But that’s not the half of it; Mark quotes Richard Posner’s “Against the Law Reviews,” where I learned the horrid truth about how law reviews work:

With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length. Their staffs are large, but the members, being students, are inexperienced both in law and in editing. With such abundant manpower and no reliance on peer review, law reviews do not forbid simultaneous submission or insist on brevity, and the interval between initial submission and final publication is much shorter than in other scholarly fields. The size of law review staffs enables them not only to check the author’s citations but also to make many substantive comments and to engage in line-by-line copyediting…
The system was not ideal. Because the student editors spent, at most, two years as law review staffers, all part-time, they did not become experienced editors. And since no self-respecting law school could afford not to have a law review, competitive pressure among law reviews were weak. There was no fear that a review that did not perform well would be driven from the market. So law review editors could indulge their whims…
Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers (including law professors). According to an article written by James Lindgren at Northwestern Law School in the Chicago Law Review, one law review editor “thought that many uses of the word ‘the’ in an article were errors. Following this bizarre rule of thumb, he took as many ‘thes’ out of manuscripts as he could, thus reducing many sentences to a kind of pidgin.”

John Brewer sums up: “In my experience, the law review experience may intensify preexisting tendencies toward bogus prescriptivism among well-educated young people, with longlasting negative effects.”

Comments

  1. Falconetti says:

    As someone currently in his second (2d? 2nd? Actually, it is 2d per the Bluebook) year of law school and on a law review I can attest to how depressing it is to have to deal with the oppressive strictures of article editing. There is a very strong ingrained bureaucracy that through its inertia makes it impossible to ease up on The Rules. There is a lot of beautiful writing found in judicial opinions though (luckily, law students do not edit judges’ opinions).

  2. Falconetti, all I can think of when you speak of the witing of judicial opinions is the episode of West Wing with the opinions in different verse forms.

  3. IndigoJones says:

    Conversation overheard between two soon to be graduates of Columbia Law School:
    “So, how did your interview go?”
    “It could not have went any better.”
    No word on whether he got the job.
    For really nice prose in a legal vein, try to dig up a copy of Joseph Bishop’s 1971 book, Obiter Dicta; Opinions, Judicious and Otherwise, on Lawyers and the Law.

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