Scalia: Legal Writing Doesn’t Exist

U.S. Supreme Court

Posted Aug 9, 2008, 01:31 pm CST
By Edward A. Adams

Justice Antonin Scalia—the U.S. Supreme Court’s great dissenter—stayed true to form as he accepted a lifetime achievement award from the American Society of Legal Writers on Saturday.

“I do not believe that legal writing exists,” he told an audience of approximately 100 at the Harvard Club in Manhattan.

Lest the listeners think the man who recently co-authored a book devoted in large part to how to write effective briefs had had a change of heart, he continued, “That is to say, I do not believe it exists as a separate genre of writing. Rather, I think legal writing belongs to that large, undifferentiated, unglamorous category of writing known as nonfiction prose. Someone who is a good legal writer would, but for the need to master a different substantive subject, be an equivalently good writer of history, economics or, indeed, theology.”

While teaching legal writing early in his career at the University of Virginia School of Law, “it became clear to me, as I think it must become clear to anyone who is burdened with the job of teaching legal writing, that what these students lacked was not the skill of legal writing, but the skill of writing at all. To tell the truth, at as late a stage as law school, I doubt this skill can be taught.

“What I hoped to have conveyed to my charges in those years were merely the prerequisites for self-improvement in writing, which are two things. Number one, the realization—and it occurred to my students as an astounding revelation – that there is an immense difference between writing and good writing. And two, that it takes time and sweat to convert the former into the later.”

The Society—also referred to as the Scribes—holds its annual luncheon during the ABA Annual Meeting.

More on Scalia:

ABA Journal: "A Voice for the Write"

Hear the audio

ABA Journal: Excerpts from "Making Your Case"

Annual Meeting 2008:

See candid photographs of attendees on Flickr.

Comments

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Posted by Nick - 3 months, 2 weeks, 6 days, 21 hours, 10 minutes ago

“it takes time and sweat to convert the former into the [latter]“

He (Scalia) may have a point ...
Posted by E. G. - 3 months, 2 weeks, 5 days, 22 hours, 14 minutes ago

Scalia has a point. Writing takes practice and those who effectively practice improve.
Posted by Al Demeola - 3 months, 2 weeks, 3 days, 6 hours ago

what makes this guy such an expert? Who thinks HE can write? He has 4 clerks that do all his work for him. And before that, he had students in his law school do his writing for him. I get sick when we think these guys are god when theyre no better than anyone else.
Posted by DWD - 3 months, 2 weeks, 3 days, 5 hours, 39 minutes ago

15 listings on Amazon, compared to 2 for me and 1 for Al . . . that might be an objective benchmark to begin quantifying expertise
Posted by Charles - 3 months, 2 weeks, 3 days, 5 hours, 24 minutes ago

Hey Al, I have news for you - he is better than just about everyone else (as are the other Justices on the Court, regardless of ideology). There is a reason why Tiger, Phelps and Jordan are recognized as the best in the world at what they do and its no different in the legal profession. Don’t be bitter, just accept the fact that you’re not as good as the Michael Jordans of the legal world (or Scalias or Ginsbergs for that matter)
Posted by Einstein - 3 months, 2 weeks, 3 days, 5 hours, 19 minutes ago

How writing is determined to be good is very subjective. There are some steadfast rules but almost everything else is open to interpretation. Generally, the person complaining the most about the writing of others is usually a poor writer himself/herself. So many of the archaic rules come from Latin and have no place in English writing.
Posted by Dan - 3 months, 2 weeks, 3 days, 4 hours, 38 minutes ago

How hilarious to see that the big bully of the Supreme Court now taking on legal writing. For Justice Scalia to engage in his attacks on just about all lawyers is ironic given how he conveniently abandons his legal “principles” to produce decisions that fit his political views—the recent Second Amendment gun control decision being the poster boy for Scalia’s intellectual and legal fraud. Mr. “Original Intent” abandons it all to get the decision he wants using an extraordinarily bizarre reading of the Constitution and ignoring the legislative history of the Second Amendment. Shame on him, and shame on the American Society of Legal Writers for bestowing this award on someone as dishonest as Scalia.
Posted by Bird Smack - 3 months, 2 weeks, 3 days, 4 hours, 21 minutes ago

Dan must be a Democrat. Charles? I’m not sure. That I know about one and not the other highlights the difference between Dan and Charles. Dan can only write what he feels - subjectively. Charles can write objectively. Shame on YOU, Dan, for injecting your political beliefs into an article on legal writing, of all things.
Posted by Amy - 3 months, 2 weeks, 3 days, 3 hours, 52 minutes ago

I taught legal writing a few years back. The quality was so dismal that I remember having to go back to basics: the definition and necessity of topic sentences; how to structure a paragraph; how to write a coherent and organized argument. I don’t share Scalia’s pessimism and think that even law students can be taught to write effectively. The question really is whether they have the patience to do what it takes to write well. It doesn’t happen in the first draft, the second draft, or even the third. It takes discipline and a willingness to view work critically and ask the hard question: Am I making any sense and is my argument compelling?
Posted by Fred - 3 months, 2 weeks, 3 days, 3 hours, 15 minutes ago

I knew it wouldn’t take more than a few commentors before someone went off into a screaming meemie hissy fit about what an awful person Scalia is.

Like it or not, the guy probably is the best writer on the court. At least his opinions are interesting and sometimes actually entertaining to read. Take a look at the book titled “Scalia Dissents” for some of his more entertaining opinion writing.

And Dan - why don’t you go breathe into a paper bag for a few minutes? When you’re done hyperventilating you can go back and actually read the history of the Second Amendment and what those who were around at the time and involved in the drafting of the Constitution actually wrote about the right of an individual to keep and carry firearms. In short, don’t drink the Brady Campaign’s Kool-Aid - they consistently lie more than any other “advocacy” group I’ve ever seen. Scalia’s historical exposition in Heller was dead-on. It is clear from the contemporaneous writings, if not entirely from the Second Amendment itself, that the right protected indeed is an individual right and is the right to own arms of a military type.

If anyone was disingenuous in the Heller decision, it was Stevens in his absurd dissent. Scalia completely dismantled and destroyed Stevens’ semantical argument, which was pretty weak and transparent. Also, compare Stevens’ approach in his dissent in Heller to the opinion in Kennedy v. Louisiana, which he joined just the day before. In Kennedy, the majority invalidated a state statute allowing the death penalty for chlid rape. In Heller, Stevens cries that the court shouldn’t invalidate local statutes because they represent the will of the people. Well which is it, your honor? Apparently the answer is knock down statutes that don’t fit your political stance but defend those that do.
Posted by Liz - 3 months, 2 weeks, 3 days, 1 hour, 52 minutes ago

This is the first time I have found myself in agreement with Justice Scalia.

Clarity of thought and expression, effective organization, and economy of language are the hallmarks of good writing in any field, including the law. To achieve these qualities, authors must be able to edit their own work attentively and critically, a task that involves both skill and patience. As the foundation for this task, however, authors must already possess an acute sense of what is and what is not good writing.

I believe that the best and perhaps only way of developing a sense of the characteristics of good writing is to be a voracious reader from childhood onwards. Exposure to literature and the works of masters of expository writing gives the reader models to emulate in his own drafting efforts. Remedial instruction for poor writers, even in high school, is likely to be too little too late.

We must be readers before we can be writers. Unfortunately, very few children are receiving adequate encouragement from their parents or their schools to become avid readers.
Posted by Rick - 3 months, 2 weeks, 3 days, 1 hour, 15 minutes ago

I was a teaching assistant for Legal Research and Writing last year. Perhaps one of the best things I could have ever done for my writing was to have the opportunity to see my own errors magnified in the writing of others: my students were foreign LLM students, so the first pass was almost always focused on getting the language right and the thoughts articulated. Subsequent revisions focused on structure and argument, but the need to be attentive to the language throughout forced me to be very careful and thorough when editing. My own writing improved considerably, especially with regard to what Liz called economy of expression. (My first drafts are always far too verbose and detail-laden.)

In years (30+) of teaching and tutoring English, I would make the broad observation that the biggest obstacle to good, effective writing for most students who have graduated high school is having done so without truly mastering an *understanding* of English. While I’ve always been told I was “a wordsmith,“ I believe that my mastery of English owes much to having studied other languages as an adult, and being forced to grasp how English works in order to create those mental structures necessary to bridge to another language.

I truly believe that learning multiple languages improves mental flexiblity. (And recent studies show that it appears to stave off Alzheimer’s, too.)
Posted by prosecute1966 - 3 months, 2 weeks, 3 days, 34 minutes ago

I have had the opportunity to read some truly awful pleadings and memoranda, and one of the conclusions that I have reached is that our public and private school systems are not effective in teaching good writing. Grammar/syntax, punctuation, spelliing and organization are all suffering at the hands of a great many attorneys and judges that I have read. I struggle as a writer, so I keep Strunk & White’s “The Elements of Style”, a dictionary, and a thesaurus on a shelf above my desk; I consult them frequently. I don’t believe anyone, whether attorney or lay person, can write well without those (or some similar) tools.
Exacerbating poor writing is that we (attorneys) tend to use legalese and too many words to convey what should be simply written arguments or points of law. I have spent a fair amount of time scratching my head while reading a court decision or a brief, trying to figure out what is really being said. It is pathological in our profession.
Our school systems should definitely move away from teaching so-called “whole language” learning and return to phonics and grammar for K-12. Then colleges should up the writing basics for undergraduates.
Posted by John Buso - 3 months, 2 weeks, 2 days, 21 hours, 20 minutes ago

I also struggle as a writer. Evidently, most writers do not struggle. If they did, we might spend less energy trying to figure out what they intended to say.

Frankly, there may be no reason to bother trying to teach legal writing. How would we spend our time if we were constantly confronted with understandable decisions by our courts and well written arguments by our opponents?

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