Old Books and Old Justices

In my frequent antique store book-hunting excursions, I often seek out old history and law books. The older the better. An old history or law book is like a time machine, zooming a current day reader off to a different world with different social norms, historical assumptions, and methods of thought.

To my delight, I was recently able to find a 1938 copy of professor Jerome Hall's Readings in Jurisprudence law school textbook for just two dollars. In it, along with dozens of well-known essays and articles about legal theory and judicial decision-making, is an excerpt from a 1921 essay by Benjamin Cardozo, at the time a state court judge in New York. Just over ten years later he would become a justice of the United States Supreme Court.

The excerpted article, "The Nature of the Judicial Process," describes Cardozo's multi-faceted approach to judging, an approach that would probably seem far too nuanced and malleable to the far more rigid contemporary schools of statutory and constitutional interpretation. 

Below is the excerpt as it appears in Professor Hall's book:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking a path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.

And, as a bonus relic from the past, I found a brief (and positive) review of Professor Hall's book, published in the 1939 volume of the fledgling Louisiana Law Review. The reviewer concludes:

Bad Judicial Writing: Justice Gorsuch Edition

Today, the Supreme Court handed down its opinion in the case of Henson v. Santander Consumer USA, Inc., dealing with debt collection practices by parties who buy debts from creditors and then attempt to collect those debts themselves, rather than hiring third parties to do the collection work for them.

The Court ruled unanimously that companies like Santander, which buy up defaulted accounts from banks and loan companies and go after the debtors themselves, are not subject to the rules of the federal Fair Debt Collections Practices Act.

Aside from the real-world effect of this ruling - lots of debtors will likely be subjected to nasty debt collection practices with no legal recourse - the opinion is noteworthy because it is the first written by the newest member of the Supreme Court: Justice Neil Gorsuch.

There seems to be a popular consensus among legal observers, lawyers, and even other Supreme Court justices that Justice Gorsuch is a really great writer.

Ross Guberman at Legal Writing Pro took a look at some of Gorsuch's opinions written while Gorsuch was a judge on the Tenth Circuit Court of Appeals. Guberman called Gorsuch a "gifted" writer.

But, as Guberman notes, Gorsuch very obviously strives to be a Great Writer, and thus often goes too far, drafting passages that are real clunkers of unnecessary wordiness, feature misused transitions, lack a needed "that," or are just grammatically bad in general.

So what of his first Supreme Court opinion? Is it "gifted" or is it bad, writing-wise?

My humble and unqualified take: it's pretty bad.

Despite being just over ten pages long, Gorsuch's Henson opinion is full of strange usages, clunky and over-long sentences, and poor phrasing. Below are some of the worst examples.

Before you continue, please note that I do not profess to be an expert on legal, or any, writing. My comments below are based on my own limited knowledge of grammar and other rules of usage and my own personal preferences. Your mileage may vary.

"And more besides"

In the very first sentence of his first opinion, Justice Gorsuch writes this:

Many commentators on Twitter focused on Gorsuch's use of alliteration. Some people like alliteration (me) and others do not (fools). But what stuck out to me was his use of the phrase "and more besides." This phrase is not commonly used by many people. Usually, the word "besides" is used to mean alongside or in comparison with. "So-and-so was the only person besides some other person to do a thing." Gorsuch uses "and more besides" in a technically correct way, but because "besides" is used far more commonly in other situations, it makes the reading awkward. "Besides" what? Writing, "...downright deceit, and other forms of harassment," or something like that would have been clearer and a little easier to digest.

But this isn't the worst example of the phrase in the opinion. Gorsuch actually uses "and more besides" twice. On page 9, he writes this:

This is bad for two reasons. First, it is clunky just like it was the first time he used it. "For these reasons and others, we will not presume," would be more concise and easier to read.*

Second, and more importantly, this leaves a big gap in the Court's explanation of its legal reasoning. "For these reasons" refers to the reasons the Court has already listed above. But "and more besides" refers to other, apparently unstated reasons for the conclusion the Court reaches. It's kind of important for the Court to clearly state all the reasons it has for ruling the way that it does. Why not just write, "[f]or these reasons we will not presume..." and leave it at that?

No Commas

Compared to the dozen-clause behemoths that were sentences in 1800s writing, sentences in American writing today are usually quite short. Excessive comma usage is exceedingly rare. But just because concision and active voice are now the dominant trends doesn't mean a comma can't be a useful tool to create a little rhythm or focus the reader on a major point. Justice Gorsuch does not agree, apparently.

Looking past the awkward use of "haven't much litigated," there is at least a minor argument to be made that this sentence is missing four commas. For example: "But, the parties haven't much litigated that alternative definition, and in granting certiorari, we didn't agree to address it, either."

I'm no writing expert, and I often drop commas that would be grammatically correct yet seem unnecessary, but Gorsuch's lack of commas undercuts his noteworthy point. The way he has written the sentence encourages the reader to speed through it without noting the significance. Perhaps the comma before "either" would be clunky but the others would give the sentence a more dramatic rhythm.

Past Participle

In the very next sentence, Justice Gorsuch writes this:

No, I'm not criticizing his use of the old English seafaring idiom "by the board." It's dated but not obscure. The problem here is his unnecessary use of "much narrowed," rather than "narrower." This is ironic because, in the very next paragraph, Gorsuch begins a multi-page analysis of Congress's use of the past participle "owed" in the statute at issue.

For what it is worth, Gorsuch does use "narrower," rather than "much narrowed," several pages later, just as he should have the first time.

Idioms and Uncommon Words

OK, now I'm criticizing his use of the old English seafaring idiom "by the board." Gorsuch loves old idioms, and he peppers his first SCOTUS opinion with them. "By the board," "cheek by jowl," "constable and quarry;" they're all there.

And Gorsuch also uses uncommon words where common words might make his opinion easier to read. For example, he uses "nub of the dispute," rather than "source of the dispute" or "point of the dispute" or something a little more recognizable to a reader in 2017. Like most of my complaints here, this is a very minor quibble.

A less minor quibble (to me): on page seven, Gorsuch writes "on their view," rather than the far more common "in their view," when referring to the position of the petitioners, the debtors. I don't think I've ever seen that before.

Unnecessary Wordiness

My final quibble with Justice Gorsuch's writing is this: he often writes two, three, four, or even ten words when one will suffice.

The absolute worst example is the following passage, found near the end of his opinion.

That final sentence is a big, clunky mess.

First, the phrase "many and colorable" is awkward. "Many" obviously means lots or several more than one. In legal writing, the word "colorable" means to have at least a semblance of justice or validity. It is also used to mean ostensible, apparent, or plausible.

With his phrasing, Gorsuch creates a distinction where there doesn't necessarily need to be one. He seems to be saying that there were many arguments made, and there were colorable arguments made, but perhaps not all of those many arguments were colorable. Why not just write "many colorable arguments?"

The distinction here seems unnecessary. It only serves to make the parties and the amici wonder among themselves which of their arguments Gorsuch considered colorable and which ones he viewed as irrelevant or unconvincing.

But that's not even my biggest complaint about the sentence as a whole. My complaint is with the section beginning with "a fact that suggests." Here Gorsuch writes eleven words when just one would not only suffice, but be far more readable. Consider:

"We do not profess sure answers to any of these questions, but observe only that the parties and their amici present many colorable arguments both ways on them all, [confirming] that these matters are for Congress, not this Court, to resolve."

Far shorter, far easier to read, and clearer to boot.

In conclusion, I agree with Ross Guberman to an extent. Justice Gorsuch is a good writer. He excels at constructing engaging narratives and articulating his reasoning without legalese. But he tries too hard to be quirky and clever and his writing suffers for it.

Because of their ages, Justices Gorsuch and Elena Kagan will likely work together for several more decades to come. She is easily the best writer on the Court. Hopefully she will exert some influence upon her colleague and help him cut the fluff, sharpen the wit, and err on the side of brevity.

Update: Turns out that Mr. Guberman thought the first Gorsuch opinion was great. For the reasons stated above and more besides, I must respectfully disagree.

Copy Paste

Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.

Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.

Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.

Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.

But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.

Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.

What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.

Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.

In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.

The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:

George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.

The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.

Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:

...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

530 U.S. 290, 318.

Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").

Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.

Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.

Typography for Lawyers 2.0

If there's one thing I'm a casual nerd about, it's typography. I'm aggressively literate and spend most of my time reading and writing. When I read, I prefer a well-crafted page where the words flow smoothly and comprehending the message is not a tiresome task.

Lawyers are notorious for their clunky, cumbersome writing. "Legalese" and unnecessary string citations can obfuscate an otherwise strong argument, and can bore (or worse, confuse) the reader. But lawyers aren't just bad when it comes to content. They're also bad when it comes to format. Legal writing typically appears in the following form:

  •     8.5 x 11 paper with 1 inch margins on all sides
  •     12-14 point Times New Roman or Courier New
  •     Text simultaneously bold, italicized, and underlined for emphasis
  •     Left justification
  •     Confusing hierarchical headings (I. A. i. 1.)

This is fine, as a minimum standard. As long as you write in a language that the reader understands (some of us are actually fluent in legalese), you're at least doing okay.

But typical legal writing could be much, much better. It could actually take the reader's needs into consideration and be organized and presented in a way that assists understanding rather than frustrates it. Unfortunately, most lawyers do not care about this or actively work against any kind of change.

Matthew Butterick is not one of those lawyers. In fact, he's carved out a niche as the lawyer fighting against crappy aesthetics in legal writing. In 2010, the first version of his book Typography for Lawyers was released upon the world. It was well-received, and rightly so. It provided, in a clear and attractive way, useful advice on type composition (punctuation, symbols, signatures, hyphens, line breaks), text formatting, page composition, and fonts (my personal favorite topic).

It wasn't until I read Butterick's book that I started caring a lot about how my court pleadings and correspondence look. Upon his advice, I use bigger margins. I try, whenever possible, to use numerical headings with decimals rather than alternating letters and numbers. I also use better fonts than Times New Roman when I write motions, briefs, and letters. For motions and briefs, I use a font called Eldorado that looks classically bookish and highly readable. For letters, I use the ever-awesome Sabon, which is probably the greatest font ever (sorry, Helvetica). Sometimes court rules or the preferences of my colleagues trump my choices, but, when I'm free to do so, I adhere to better typographical principles.

I also followed Butterick's advice when I designed the layout of this web site. You'll notice that the blog text is very narrow with wide margins, with large, readable fonts for the headings and body. This was done on purpose. There are some really good blogs with really bad layouts that still use tiny default fonts with text that expands to the edges of the screen. With monitor resolutions now as high as 1440 or even 2160, some blogs are almost unreadable. Butterick helped me to avoid being a casualty of new technology by using classic typographical techniques.

Now, Butterick has updated Typography for Lawyers and I just received an advanced review copy of the second edition (free stuff is the best stuff).

Immediately I noticed a big change between the first and second editions: a new font on the cover! Butterick has actually taken the time to craft his own fonts for use in legal writing, and he used his newest one, Advocate, on the cover. His other fonts, Equity, Concourse, and Triplicate are used throughout the book. To be honest, I'm not crazy about Advocate, but it's perfectly bold and readable and gives the second edition a fresh new look.

There are other changes in the new edition. For example, Butterick has removed some of his punctuation advice (regarding question marks and semicolons) as well as a funny "Note to Argumentative Readers" that graced page 44 of the first edition. But the changes are good - he adds new content and context in other sections to bolster his arguments or clarify his advice.

The most noticeable change was a major overhaul of his list of recommended fonts. He has moved Lyon from being a suggested replacement for Georgia to a suggested replacement for Palatino (which is the font used by the Seventh Circuit Court of Appeals in all their decisions). He has also swapped out Starling and Plantin for Tiempos and Verdigris as alternatives to Times New Roman. And speaking of which, he has moved the illuminating "A Brief History of Times New Roman" to a new spot within the font lists, rather than several pages before. It flows better now in its new place and functions as a useful aside.

Two changes are for the worse, however. First, Eldorado no longer makes his list of recommended fonts. Second, Sabon has also been cut, which is an inexcusable mistake that I trust Butterick will rectify in the third edition.

I haven't noticed all the changes from the first to the second edition of Typography for Lawyers, but the changes I've noticed are, for the most part, improvements. Even the changes I don't particularly care for don't really detract from the excellence of the book. The book remains something I will often recommend to other lawyers (and writers in general).

Butterick is here to help. Please, lawyers, fix your barely adequate motions, briefs, and letters and help make the difficult practice of reading the law a little bit more pleasant for everyone.

News and Happenings

Since the Obergefell v. Hodges ruling in June, I've been posting reactions to media coverage of the case as well as to the opinions filed by the dissenters. But a lot more has been going on in the world of Joe Dunman.

Following the defeat of marriage discrimination nationwide, at least two county clerks in Kentucky have refused to issue marriage licenses to anyone, citing their own anti-gay religious beliefs. In Rowan County, a team of attorneys from the ACLU and my firm (including me) has filed suit on behalf of four couples (same-sex and different-sex) to protect their right to marriage. This month, District Judge David Bunning granted our motion for preliminary injunction, ordering the clerk to resume issuing marriage licenses. That order is currently being appealed by the clerk. Meanwhile, the clerk is also seeking a stay of that injunction. Litigation in this case will likely take a long time to resolve.

In other practice news, I have secured favorable settlements for clients in numerous cases this year, most recently a case of pregnancy discrimination against a major restaurant chain. Several of my clients have also won their appeals in unemployment benefits hearings, defeating spurious claims of misconduct by their former employers.

I continue to write periodically for Insider Louisville. My article opposing legislation to excuse county clerks from having to do their jobs was shared over three thousand times on social media. Other pieces, such as a criticism of the local Fraternal Order of Police president's inflammatory language against protesters and a call to help existing residents of Portland transform their own neighborhood (rather than be gentrified by outsiders) were also popular. My most recent piece tackles the futile and troublesome jaywalking crackdown proposed by local police.

The day before the Obergefell decision, I received a first place award in the category of political commentary from the Society of Professional Journalists for my writing in Insider Louisville. I've also been selected, for the second year in a row, as a "Rising Star" by the Super Lawyers professional rating organization. 

I'm also writing academically. I am now in the final revision stage on a law review article tracing how Bowers v. Hardwick - the 1986 Supreme Court case upholding sodomy laws - continues to control judicial decisionmaking despite its overrule by Lawrence v. Texas in 2003. The article will be published in the Thomas M. Cooley Law Review later this year. This will be my second published law review article with more in the works.

And finally, my colleague Dan Canon and I have launched a podcast called The Parade of Horribles. Why? Because we love to hear ourselves talk, of course. But we also love to talk to interesting people doing civil rights work, so each episode features a special guest. In Episode 1 we spoke to attorney Chris Gadansky about defending police in abuse of force cases and his role in extinguishing whistleblower protections for city employees. In Episode 2, law professor Sam Marcosson joined us to talk about Obergefell, gay marriage, and that time he worked for Clarence Thomas. In Episode 3, attorney Becca O'Neill helped us dispel common myths about immigration law in the United States. So far the podcast has been tremendous fun, and has attracted a decent-sized audience despite being brand new and focused on legal issues. The podcast is available at Soundcloud and through iTunes. Subscribe if you don't mind.