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Thursday, July 10, 2008

Taking Law Lightly

Howard’s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I’m not alone in thinking that most legal writing, however smart and insightful it might be is … well, rather dry. That’s not to say the subject matter is necessarily dull, and if you’re interested in what you’re reading, it may engage you regardless of tone and style. On the other hand, if you’re reading a paper or an opinion because you have to, it can seem like a real chore, and I think this is in large part because the standard tone of legal writing tends to be ruthlessly expository—or less charitably, as arid as the Sahara. (And this is certainly something of which I have been guilty, as I often realize when going back over my own work.)

So does this mean humor is the way to vivify what can be a moribund style of writing, in opinions, or briefs, or articles? For a couple of reasons, I am skeptical. For one thing, judges may be able to get away with it because they’re often the final word on any given subject, but lawyers writing briefs and academics writing papers can’t take that chance, because there’s every chance that the judge or colleague whose evaluation is crucial to their success will find the humor inappropriate, and take a dim view of the work. (Especially true given the risk-averse breed that law folks are.)

There’s another reason it may not be a good idea, as some commenters in Howard’s thread gestured at. There’s something invariably demeaning about having an authority crack wise while also rejecting or challenging your position. So even if that overly long complaint really is frivolous, to set it aside with a joke means not only that you’ve lost, but that you haven’t even merited being taken as seriously as other litigants. I experienced a variation on this during this past year, when I found that students liked my sense of humor okay when I was making fun of the litigants in a case or, better, of myself (easy targets are always appealing). By contrast, any wisecrack made when I was answering a student’s question tended to meet with a chilly reception. Even though I never made a joke at a particular student’s expense, the idea that I was being even a little facetious gave some students the (mis)impression that I wasn’t taking their inquiry seriously. So perhaps there are contexts in which humor, however humane and well-meaning, just doesn’t work (e.g., “Your death penalty appeal merits only rejection/Go get in line for your lethal injection.”).

But the final, and in my mind the most compelling, reason to avoid humor in legal settings is that it’s usually just awful. One familiar form of legal humor isn’t really humor at all, but more a form of self-identification. Putting a Death Cab lyric (or Star Trek reference or Lebowski quote) into the footnote of your latest article on Hamdan is usually a stretch, and is less funny than merely a way to signal to your audience that you’re a hipster (or Trekkie, or Lebowski fan). As for the rest—the opinions written as Dr. Seuss rhymes or what have you—they generally seem to me more corny than actually funny. To use an Office analogy, they’re more in the vein of Michael Scott than Jim Halpert. It may be because in most legal writing there’s no room for the kind of twisted ironic sensibility that makes humor work. Really good humor has to be surprising and weird and not terribly serious, while law is, at its core, a pretty serious endeavor. The reasoning is often challenging, and a lot hangs in the balance (for lawyers and judges, though perhaps not for academics), so briefs and opinions and articles have to be crystal-clear first and foremost, and the best way to do that is to be expository and nothing more. Plus, the plain truth is that humor is not the gift of most law folks, just as most poets would likely not pass the bar and most comedians would struggle to write a passable villanelle.

And yet this is all unhelpful in thinking about the problem of legal writing’s lack of zazz. (Or am I wrong in thinking this? Is there zazz there that I just don’t see? Perhaps others are sufficiently entranced by their love for law that the love itself is zazz enough for them.) To be fair, some writers manage to persuade but do so with grace and style. I invariably find Carol Rose’s writing a delight to read, and Kozinski’s opinions are undoubtedly full of life (regardless of whether one agrees with him). What these authors share seems to be a willingness to deviate a bit from the traditional strictures of legal writing (admittedly a scary prospect for a pre-tenure academic, or a lawyer composing a brief for a yet-to-be-named panel of judges) as well as a willingness to infuse their work with something of their personal style (rather than blindly imitating the expository style that sucks most legal writers in like a tractor beam). This approach takes some courage and extra effort, but then again, as the man says, no guts, no glory.

Posted by Dave_Fagundes on July 10, 2008 at 11:50 AM in Odd World | Permalink


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Dan, I actually think the cf. to Seinfeld both would have been funny and provides a helpful and non-legal illustration of your point. So maybe with one example you've shown that using humor in law review articles is, as Dave H., suggests, not such a bad idea (as long as the joke is written by someone like Larry David who is actually funny).

Calvin, I completely relate to the irritation of the judge faced with a horribly long and basically frivolous complaint. But I still think a facetious dismissal is unwarranted, regardless of the merits of what is being dismissed. This is why I raised the example of teaching; in class, I think it's never the right move to jokingly dismiss even a bad (i.e., not well thought out) question. I think it's certainly appropriate to tactfully indicate that the question is wanting, but to give the impression that you don't take the underlying issue seriously may erode your effectiveness as an authority figure by sending the impression that you aren't taking student concerns seriously. Much the same is, I think, true for a judge faced with an overly long complaint.

Posted by: Dave | Jul 11, 2008 1:17:41 AM

Good point about the power imbalance of this--litigants are not supposed to joke before the court, as it often gets taken as a message of disrespect. And I agree w/ Dave Hoffman that humor (especially in titles), even bad humor, often feels appropriate in legal scholarship.

Posted by: Howard Wasserman | Jul 10, 2008 8:16:02 PM

Thought-provoking post. I think Professor Horwitz's and Professor Hoffman's responses are just about right. There is no doubt that the limerick (Judge Leighton's) is somewhat lame (too cute by half?), but I think the point is that a lawyer who files a 465-page complaint in a federal district court does *not* deserve to be taken seriously. If ever there was a situation where it is acceptable to be blithe, this was that occasion.

To my mind what is concerning about humor in judicial opinions--I see no problem with humor in academic writing, Jack Balkin's and Sandy Levinson's "How to Win Cites and Influence People" made me laugh-out-loud a number of times (though that may say more about me than anything else)--is that perhaps the humor is being used as a crutch/substitute/mask for a lack of analytical rigor. Many judges especially have a tendency to take themselves too seriously, so it is nice to see some lightheartedness when appropriate, the key is knowing when, and when not, to invoke humor.

Posted by: Calvin TerBeek | Jul 10, 2008 7:56:30 PM

Good post. I guess I'd try to distinguish more between writing by judges, comments by professors in class, and articles, with humor & irreverence being less inappropriate the further you move from authority.

Judges shouldn't sass. Indeed, they shouldn't emote much either. I heard a good story once about a well-respected district judge and former academic who, in his first sentencing, got off the bench and apologized to the defendant for the heavy time he'd imposed. The defendant, understanding better than the judge that an apology was an inappropriate attempt to cross-boundaries, told the judge to @#$@# off. This seems about the right response to empathy in that circumstance. I love Kozinski's opinions, but I don't know that I'd appreciate being a litigant in front of him. (Cf. Posner, who writes beautifully but doesn't joke so much.)

Similarly, jokes in class about students need to be extremely carefully measured. The reasons are obvious, and the temptation omnipresent, especially for students who challenge.

But joking in law review articles? Why not? I mean, except for the "not funny" objection, I think that there is no reason that such articles have to be pedantic, plodding, and grave. Dan's right: you should always gut check a joke. I've removed lots of bad puns, terrible asides, and stupid quotes from articles. I haven't caught them all, of course, and there are one or two I regret (but not my half-way funny titles, which I can't help but love). Basically, when I read other people's bad jokes, I usually just smile and appreciate the effort.

Posted by: dave hoffman | Jul 10, 2008 5:42:30 PM

Dave, reading this, I agree with you entirely. Indeed I usually groan when I see pop culture references in scholarship. I recently thought I had an exception, which i'll share as my own little "learning" moment. In drafting Punishing Family Status, I was making a point about how "When the state makes choices regarding families, and uses the criminal justice system to send normative signals about those choices, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state or other institutions." This seemed like the perfect opportunity to use a "cf." footnote to Seinfeld, the episode where after the hospital orderly says only “family” is permitted into the OR, George exclaims: “I’m family. I’m having sex with the cousin."

But now that I've gotten that reference out of my system on a comment to a blog post, I will wisely capitulate to my co-authors' request to remove the reference. phew. big sigh of relief :-)

Posted by: Dan Markel | Jul 10, 2008 2:02:12 PM

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