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Wednesday, December 02, 2009

On Writing "Simply" or "Incomprehensibly"

This is one of those evergreen topics for academics, and for those who love to hate academics.  (Or, in some cases I suppose, who hate to love them.)  Ann Althouse links to an article by an economist who confesses that he has deliberately written "to impress rather than inform," and writes, "I lost my patience with unnecessarily complicated writing a long time ago."  Orin Kerr writes about this as well, adding that "the problem in legal scholarship is that complex and sophisticated words create the impression of complex and sophisticated arguments."  At The Faculty Lounge, Eric Muller offers his succinct agreement.  But our own Marc DeGirolami, in the comments to Eric's post, says, in effect, hold the phone: "If this is merely a call for elegant writing, then I suppose I agree (who could be against that?). But if it is a rallying call for simplicity for its own sake, then I think it misguided. Simple and clear is not the only way to express ideas -- especially complex ideas -- in a way that can be academically edifying."

Those of us with memories that extend a couple of weeks back may recall some discussion of who Marc writes for (somewhere between no one and himself), and that he was criticized for this in some corners.  Those of us who have actually read Marc's work know that it is pellucid and enjoyable.  So what gives?  Is he giving ammunition to his critics?  The commenters above have clearly staked out the popular position, and the cognoscenti can certainly fill in the missing snipes at Judith Butler et al.  But is there some justice to Marc's position?

You betcha, although there is also justice in the standard position.  The original article by the economist describes deliberately making writing obscure in order to win influence.  That is a cardinal sin of academic writing, or any other kind of writing.  My sense is that a still larger group of legal academics probably fall into obscurity without this kind of malicious intent; they're aping what they see around them, or they're just not taking the time to think about what they're writing and boil it down.  That's a sin too, although perhaps a venial rather than a mortal sin.  

But the key is the idea of making writing unnecessarily obscure.  Technical writing can be "obscure" to a general audience, but that writing can also be necessary to put thoughts down precisely in a way that will be understood by the relevant audience.  Non-technical writing should certainly try to avoid obscurity, but not at all costs.  If an idea is difficult to express clearly without boiling away some of its essence, or if it expresses ideas that are obscure because they are ineffable, or if some of its obscurity is also part of its grace and beauty, we shouldn't view that as a fatal blow against it.  There is more in heaven and earth than can be expressed in a "see Dick run" style.  One of my favorite writers is Norman Maclean, and he is often cited, often in a somewhat hostile register, as a model of breathtaking simplicity of style.  But some of his greatest writing can be returned to again and again because it lives in its absences and silences, in meanings that are far from plain from the face of the text.  It's simple writing, but it's not always clear.  That's called poetry, bub, and there can be a place for it -- even in academic writing.  

Orin is surely right that too much academic legal writing is neither poetic nor clear, but just dresses up basic and often trite ideas in ten-cent diction.  By all means let us avoid that.  But I think the fear that Marc expresses is that these kinds of common-sense views about what writing should be can become anti-intellectual dogma -- that they can be used by, say, blog commenters to sneer at academic or difficult writing in general without bothering to look at the writing itself.  "Write simply" is a pretty good rule of thumb.  "Write appropriately" is even better.  

Incidentally, not all of the blame for this tendency toward obscurity (although most of it, to be sure) lies at the feet of the writer.  The article Althouse references discusses how the economist in question did worse when he submitted clearly written articles to (peer-reviewed) journals than when he submitted the same article in a more obscure form.  On the whole, and perhaps contrary to popular belief, I think legal academic articles place better if they are clearly written than if they are written in a jargon-ridden fashion.  (Look at guest-blogger John Greenman's great article On Communication, which was both incredibly readable and very well-placed -- but was technical when it had to be.)  But it is probably also true that the law review selection process can sometimes give a little extra weight to submissions whose unnecessarily obscure or jargon-ridden language conveys the illusion of substance and authority.  Legal academics, even junior ones, should have enough moral backbone to disregard this moral hazard; but law review editors should certainly remind themselves to be part of the solution, not the problem.    

Posted by Paul Horwitz on December 2, 2009 at 04:49 PM in Paul Horwitz | Permalink


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"and hurts rather than helps when taken to ofar."

What does Ofar have to do with this? (Is he related to Orin?)

Posted by: Mark D. White | Dec 3, 2009 12:02:41 PM

Marc, I'm not sure there is a real difference between our views. I think we all agree that clarity and simplicity are not the only virtues of writing, and that it would be bad for a writer to obsess over clarity and simplicity while sacrificing all other virtues. That's especially true if the author has a gift for writing. Put another way, I think we all agree that most good advice can be taken too far -- and hurts rather than helps when taken to ofar.

Posted by: Orin Kerr | Dec 3, 2009 11:11:34 AM

I cannot match Orin's grace and self-deprecation, and I more than suspect it would go poorly for me if, in the spirit of counterpoint, I subjected the readership here to selections of my writing that I think absolutely fantastic.

Instead, here is a portion of the conclusion to Philip Hamburger's 'Law and Judicial Duty,' offered as an example of writing that I find deeply elegant and cultivated, but far from simple and not at all "plain":

"The power above human law, however, has not remained in the people. The attribution of this absolute power to the people avoided some of the dangers of its being concentrated in government, but the people have been no more divine in their exercise of will than their kings and legislatures, and many Americans, in their desire to prevent the people from abusing the power above law, have invited their judges to exercise it. Thus, after the power above the law of the land finally shifted from government to the people, it has come to be at least partially relocated in the judges. In taking up this power, the judges have found sophisticated support in the old academic sensibilities, and not unlike some kings and Parliament when they claimed to be the final arbiter, American judges have acquired a taste for power above the law. Perhaps every society needs this sort of pwoer, but in denying absolute power to Parliament, Americans did not give it to the judges, and although it is questionable whether the people, being merely human, will always act wisely and justly in exercising their power above the law of the land, it is even more doubtful whether the judges or any other persons in government can be trusted with such a power."

A few things I notice about this paragraph. (1) Several sentences have an almost Ciceronian complexity -- take the second, for example. That does not make them any less elegant and artful. (2) There is at least one ambiguity: Hamburger says first that Americans invited judges to use the power above law, and then later he says Americans did not give absolute power to their judges. Unclear! Inconsistent! Perhaps so, but it seems to me that Hamburger might be making two sorts of subtle points that are in tension -- that Americans, through history, simultaneously have wanted and have not wanted their judges to wield the power above the law. Speaking of which: (3) What exactly is the "power" above human law? Why can't Hamburger be more specific and clear -- why can't he "say what he really means?" Perhaps the reason is that Hamburger is here being intentionally obscure. It would alter significantly, as well as banalize, the point that he is trying to make by talking specifically about what that power might be.

I grant that this is a book, written by a seasoned and skillful veteran, whereas the subject of these arguments seems to be law review writing by comparatively inexperienced scholars. Still, it takes years of practice to develop a personal style like the one in this book -- one of which the reader can say, without knowing the author, "That's definitely X writing." But that type of unique style will have difficulty developing if one remains permanently fixed on the virtues of clarity and simplicity.

Posted by: Marc DeGirolami | Dec 3, 2009 9:23:08 AM

Marc asks:Very few academics I know of strive to be actually unintelligible, even if that unintelligibility can be passed off as depth to people who are so dazzled by fancy locutions that they overlook meaninglessness. Who, exactly, is the "audience" for a point like that? Certainly no academic that I have met.Let me amend the point just a tiny bit. The problem isn't so much intending to be unintelligible as it is intending to use big fancy academic words with little sense of what they mean in order to *seem* academic, with reckless disregard for intelligibility. If that is the standard, lots of academics are guilty, no?

To avoid pointing the finger elsewhere, let me quote from my own first article, written when I was a 3L and published when I was a law clerk. In the article, I am describing the significance of an empirical study of administrative law cases I have conducted. I drop the following footnote:This study also has broad implications for those interested in jurisprudence, particularly hermeneutics and interpretation. Although the three models question the integrity and stability of the Chevron doctrine in particular, they implicitly question the integrity and stability of all legal doctrines generally. Each model is the product of a distinct jurisprudential paradigm, which claims its own insights into how legal doctrines function (or malfunction) within judicial decisions. Evaluating how the three models succeed or fail in describing one doctrine provides a case study of how these paradigms succeed in describing the role of doctrine throughout law.Talk about bullshit! I mean, did I really use the phrase "jurisprudential paradigm"? And "hermeneutics and interpretation" instead of just, well, "interpretation"? And what was that paragraph supposed to mean, anyway? Yikes, Kerr.

With appropriate shame, I vaguely recall writing that paragraph. I remember thinking that I had to use words like that to convince readers I was a sophisticated legal thinker. I was intentionally sprinkling in some Ph.D. sounding words to give the article an appearance of intellectual heft. (I should add that the article actually had a lot of heft, at least I thought so; what's interesting is that I felt the need to use big words anyway to feel like I fit in.)

Perhaps I was just more anxious than most budding scholars. Perhaps few other people have felt the same as I felt or did as I did. But I would guess I'm not alone in having felt that urge, or in reading law review articles and feeling that other authors felt it and gave in, too.

Posted by: Orin Kerr | Dec 3, 2009 1:35:09 AM

Ack. There's a typo in that post which Prawfs' comment system is preventing me from fixing.

"No, the worse and more common sin is to attempt drama for the sake of relevance and publication but to present arguments that are logical and persuasive: it's that flaw which law student editors arguably encourage. (Also, Cardozo's model doesn't help.)"

Should read:

No, the worse and more common sin is to attempt drama for the sake of relevance and publication but to present arguments that neither logical nor persuasive: it's that flaw which law student editors arguably encourage. (Also, Cardozo's model doesn't help.)

Posted by: dave hoffman | Dec 3, 2009 1:27:28 AM

Yikes. After all that, there's a key typo in my comment that makes it unintelligible. Change "present arguments that are logical and persuasive" to "present arguments that are neither logical nor persuasive."

And in defense of the students, that's precisely the kind of careless error that they would have caught. Sometimes it's the obvious stuff that gets you.

Posted by: dave hoffman | Dec 3, 2009 1:25:21 AM

It's lovely when we all agree, though reduces the chance that we'll have a flamewar that drives traffic to Prawfs.

Clive James has a good book of essays that contains a tough swipe at Gibbon for writing that sounds beautiful but which is unnecessarily hard to read. Since I love Gibbon but can't finish his books, that point has stuck with me. Indeed, the greatest sin of law review authors isn't complexity for the sake of purported sophistication. To the extent that exists, I think it just reflects insecure people who are pompous in life as well as on the page. No, the worse and more common sin is to attempt drama for the sake of relevance and publication but to present arguments that are logical and persuasive: it's that flaw which law student editors arguably encourage. (Also, Cardozo's model doesn't help.)

But you can't really deny that law review articles are, on the whole, much easier to read than those in the other disciplines. And that's putting to one side technical modeling work or statistics. Just read the first few paragraphs of a random article in any recent good psych journal. It's a stream of deadening passive prose with no clear organizational theme and no sense of scope.

Posted by: dave hoffman | Dec 3, 2009 1:22:07 AM

Lovely comment, Marc. But -- Henry James! Yes, he was the Master, but I hope not too many lawyers or law students are emulating his style. Ditto for Proust, although I admit I would be charmed by a law review article written in Proustian prose, and I am sure I have read some exams that aped the length of Proust's sentences and paragraphs -- but without the madeleine.

Posted by: Paul Horwitz | Dec 2, 2009 10:25:53 PM

Paul (and Dave!), I agree with what you both say. Part of the difficulty is that I agree with Dave that it's a bit silly to talk about "deliberate complexity" or intentionally obscurantist writing. Very few academics I know of strive to be actually unintelligible, even if that unintelligibility can be passed off as depth to people who are so dazzled by fancy locutions that they overlook meaninglessness. Who, exactly, is the "audience" for a point like that? Certainly no academic that I have met.

No, it seems to me that, as Matt Lister nosed out in a comment that preceded mine on Professor Muller's post, the tyrrany of 'keep it simple, stupid' is at work here. When I taught legal writing, I was taken aback by the degree to which people think that there is exactly one, and only one, way to write effectively. One can either follow the rules laid out in Garner, or whoever, or one can resign oneself to abject failure as a legal writer. Admittedly, as I came to know my students' writing, I realized that Garner and like-minded scholars of effective legal writing have a point. But even so, I do not think -- even for the writing that occurs in legal practice -- that there is only one way to communicate well (elegantly, effectively, and so on). My own view is that good writing does not exist, and cannot be learned, apart from understanding how and why language has been written by the masters of the past. Does that mean that practicing lawyers ought to write like Dickens? No. But I think that it does mean that Dickens has as much to teach legal writers as does someone like Garner. The stylistic sensibility that one can get from Dickens (or from Orwell, or Henry James, or...) can inform one's writing in a way that can, I think, make one's legal writing special, unique, and appealing. I do agree that as a general matter, these are not the sort of writing lessons that can be transmitted in a one-semester legal writing course, while the lessons of Garner can. But that does not make them any less powerful.

In the case of academic writing, these points apply with much greater force, for me. I think Paul is absolutely right that obscure language can sometimes contribute to the grace and beauty of the expression of an idea. Obviously, fancy words with no ideas are empty. But ideas without elegant expression are uncultivated, barbarous, indigestible. And I resist the idea that there is exactly one way to be elegant. Just as ideas themselves are infinitely various, beautiful, luminous, so is style. Style is not just the surface. Not remotely. Style is the way that a raw idea clothes itself, declares itself ready for public view and address. We think expression elegant when it pleases us aesthetically -- just like, as Paul suggests, the way we feel about a poem composed with grace and power, whether the power of Tennyson or that of William Carlos Williams. Stylistic elegance can be simple, to be sure. But it can also be deeply complicated, baroque, and unique. Style, as well as elegance, is irreducible, and is certainly not -- in all cases, everywhere -- the same thing as "simple and clear."

Posted by: Marc DeGirolami | Dec 2, 2009 10:01:09 PM

Dave, fair comment. I agree there's plenty of common ground; I just wanted to point out the merits of Marc's comment because I think the "I don't read unnecessarily complex writing" trope can shade into thoughtless rather than thoughtful criticism about writing. On your question, I'm not sure I either necessarily agree or, if you're right, have an explanation. I did say that I thought that on the whole the top reviews actually publish fairly clear writing, and that the journals the economics professor was talking about were peer-reviewed. It may be that the same factor -- comparative inexperience on the part of law review editors -- explains both the preference for clear writing and the occasional undue preference for unnecessarily complex writing. But I can't say for sure.

Posted by: Paul Horwitz | Dec 2, 2009 9:23:04 PM

"But it is probably also true that the law review selection process can sometimes give a little extra weight to submissions whose unnecessarily obscure or jargon-ridden language conveys the illusion of substance and authority."

How do you explain the common (and I think true) observation that writing in the law reviews is far less jargon-filled, and much more readable, than writing in peer-reviewed publications.

Otherwise I'm of the view that this is essentially a moot debate. Being against clear and persuasive writing is like being against rain forests or apple pie. Marc is right, Eric is right, and even Ann Althouse (whose writing on her blog is usually bad and often unnecessarily dressed) is right. Indeed, they agree with one another, or would if pressed, as you suggest. Except in the odd case -- journal editors creating weird incentives -- deliberate complexity is never maximizing. Good writers don't do it. Bad writers can't help it. Intentional bad writers generally do not exist.

Posted by: dave hoffman | Dec 2, 2009 7:18:00 PM

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