The Journal also quotes me in the intro, saying I "constantly dearly" wish the other Justices would write as well as Scalia. "Constantly dearly" — oh, good Lord, I wonder what Bryan Garner thinks of that sort of writing. It sounds like I'm having a Harlequin romance with the pugnacious jurist. I just wrote "pugnacious jurist" as a language joke to try to make Bryan Garner laugh. Anyway, I had to dig deeply, industriously, to find the old post where I said "constantly dearly" in some fulsome plaudit to the scrappy jurisprudent. It was way back in May 2004, in the fifth month of the blog:
Slogging through Supreme Court opinions and imposing them on my students, I constantly dearly wish all the Justices would write like Scalia (or Jackson or Holmes, to whom Scalia is compared elsewhere in the article). Like most law review articles, the Justices' opinions are usually written in a characterless, "learned" tone. Does persuasion consist of boring your opponent into submission? If you were going to write ten (or twenty or forty) pages that thousands of students were going to meticuously study, shouldn't you take the trouble--the opportunity!--to write something engaging? Reading the opinions of the other Justices, I often suspect the point is to give everything a look of tedious, unexceptionable regularity to disguise all the seams and shortcomings.I guess I could write a book aimed at judges — "Writing Your Case: The Art of Enlightening the People Who Ought to Believe You Deserve Your Vast Power." But Scalia and Garner are writing to the lawyers who must beseech those judges, and let's get to the excerpt:
In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sacrificed if they detract from clarity....This is great stuff. Writing a book like this, the co-authors had to make sure their own writing style was terrific.
[Shun] puffed-up, legalistic language. Make your points and ask for your relief in a blunt, straightforward manner....
The clearer your arguments, the harder it will be for your opponent to mischaracterize them. Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means—and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak!
It's a long excerpt, so go to the link and read the whole thing or, better, buy the book. I'll just pick out some highlights.
1. Now, we have a Scalia cite for the important point that it's just fine to begin a sentence with a conjunction:
There’s a myth abroad that you should never begin a sentence with a conjunction. But look at any species of reputable writing—whether it’s a good newspaper, journal, novel or nonfiction work—and you’re likely to find several sentences per page beginning with one of those little connectives. You can hardly achieve a flowing narrative or argument without them.And Virginia Woolf begins a whole book with one.
2. Don't be boring! It's the loser's way to try to look legalistic.
Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee? Alas, to tell the truth, it’s no different from this case or even here.We readers of Scalia opinions already know he loathes the word "nexus."
3. Stop saying "fatally flawed," "flies in the face of," "painting with a broad brush," and all those other things that you imagine make you sound like a lawyer. They just make you sound like a hack. Don't say "beyond peradventure." Ha ha. I have been making fun of the use of "beyond peradventure" for a long time. (See my old post "It cannot be gainsaid" — which is aimed at judicial writing.)
4. They tell us to avoid Latin phrases like ceteris paribus, inter alia, mutatis mutandis and pari passu. And I was just about to cite Scalia opinions that use them when I was brought up short by the next 2 sentences: "Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit." So the judge is allowed to lord it over you in a way that you dare not lord it over him? Are we talking strategy now or good writing? I contend that the judge ought to talk straight and not be any more obscure than the material requires. The judge is wielding power and ought to feel compelled constantly (dearly!) to prove to us that he deserves it. With those Latin phrases, it's as if he's chortling ha, ha, I have the power. I wonder if the judicial exception was in the first draft. I'm picturing Scalia making additions to a passage composed by Garner.
Oh, even my highlights are going on too long for a blog post, mainly because the text is inspiring commentary — which is an excellent thing. So I'll stop here for now. More highlights with commentary later. Buy the book and read along with me.