Jun 2 2013
Subpoenaing testimony or documents from federal agencies, such as the Federal Bureau of Investigations (FBI) or Immigration and Customs Enforcement (ICE), is not as simple as obtaining a court order listing the materials sought. After the Supreme Court’s decision in United States v. Touhy, which held that it was a proper exercise of executive power to regulate the release of information by agency subordinates, obtaining information from a federal agency requires compliance with what is commonly known as the agency’s Touhy regulations. Although there are ways to challenge an agency’s Touhy regulations, doing so is difficult. It is usually more practical to comply with them. Here are some tips on how to do so.
Each agency has its own set of regulations. The first step in obtaining the information sought is determining which agency’s regulations are applicable. For example, smaller agencies, such as the FBI and ICE, fall under larger executive agencies: the Department of Justice and the Department of Homeland Security, respectively. Reach out informally to the appropriate official to notify the agency of the anticipated request and seek guidance on the proper form for the request and to whom it should be directed.
The regulations or procedures generally require a letter request to the appropriate agency official—frequently the United States Attorney, but perhaps the agency’s Office of General Counsel—accompanied by a subpoena. The letter is the most crucial part of the package. It serves to establish for the agency the relevancy of the information sought, belying concerns that it is over-inclusive and designed as part of a “fishing expedition.” It also can serve as evidence in a subsequent enforcement proceeding of the subpoena.
After a brief paragraph explaining who you represent, the purpose of the letter and the nature of the case, the letter should include a statement of the facts. The facts should be written to emphasize the case’s public importance and provide a basis to conclude that the government agency has relevant information. While the facts should be written in a favorable light to your client, they might take a more neutral tone than what would be appropriate for a brief. Writing as though facts have been established or are clear defeats the purpose of a request to obtain information to support those facts. If the case has survived certain procedural hurdles that have tested the issues, such as a motion to dismiss, and narrowed the claims and parties, mention so.
The requests should be narrowly tailored to the extent possible and clearly state the relevance of the requested material to the claims. Avoid broad requests that are more appropriate for regular federal discovery requests. To highlight the relevancy, list the particular request and then immediately explain how that information bears on the claims at issue. Explain the relevance for each request individually.
Once there is a draft Touhy request, it might be worthwhile to share it with the executive agency official before finalizing and submitting it. The agency might be able to immediately identify materials that it will not produce, or provide further guidance on the information or tailoring necessary to obtain at least a subset of the requested materials.
Apr 7 2013
New businesses are increasingly technology businesses and, as the hub for industries from arts to finance, these new tech start-ups are choosing New York more and more frequently over the familiar Silicon Valley. As a spectator on the sidelines watching the tech industry grow in NYC, my impression was always that these businesses have great potential to provide women with employment opportunities equal to those of their male counterparts. Sure, there still are not as many women graduating with STEM (science, technology, engineering, math) degrees as men, but the work culture always impressed me as less tied to outdated notions of what makes an “ideal worker” and with more people comfortable using technology to get work done. I hoped that these factors would give tech start-ups a leg up on other businesses in embracing flexible work schedules and telecommuting, allowing women to overcome some of the family-wage barriers to employment opportunity that plague other workplaces.
But, even accounting for the disparity among the percentage of STEM degrees awarded to men versus women, women are underrepresented in tech jobs. And, unfortunately, the conversations among women in tech reveal an emerging pattern that is all too similar to other male-dominated industries, where women are marginalized based on sex stereotypes or exploited because of their token identity in a workplace. Of course, not all tech companies fit this pattern, but research reveals that the relatively small percentage of women graduating with STEM degrees face sexist workplaces and favoritism for males that ultimately makes them leave the field.
Discrimination manifests itself through the “culture” espoused by many of these workplaces in subtle yet pervasive and damaging ways. The few women at these workplaces can feel alienated because they are not members of the majority group. They see that decision-makers are all male. It takes more effort to engage with their majority-group colleagues than those in the majority-group take to engage with each other. This, in turn, could affect women’s prospects for advancement—maybe because they are less inclined to volunteer for projects, or because they do not have as strong a bond with bosses. What majority group members sometimes overlook is that it is difficult for minorities to gain entry into the majority group. Workplaces need to take a more active role—beyond articulating an ideal of attracting more women—in incorporating minority members. Barriers to entering the majority group inhibit a truly collaborative work environment that many of these workplaces strive for and believe that they are.
Federal, New York State, and New York City laws make it illegal to take employment actions on the basis of sex and can be powerful tools in paving the way for equality. Whether or not particular circumstances at a tech company violate any of these laws requires a case-specific analysis of the conduct at issue and the workplace. Comments based on sex stereotypes—“I didn’t know girls could code”—or that single out women based on their sex—“The client would rather see you than us, so why don’t you meet with him?”—are evidence of sex discrimination. Sexually charged jokes casually but persistently made at a predominately male workplaces might amount to what the law recognizes as a hostile environment based on sex. Creating and maintaining hostile work environments is illegal. When women leave these workplaces to escape a hostile work environment, it could qualify as constructive discharge and has the effect of foreclosing women from employment opportunities based on illegal criteria.
But the law is limited in protecting against some of the subtle forms of discrimination perpetuated by these cultures. Where the law falls short, companies need to prioritize and actively pursue inclusive workplaces that foster collaboration and growth of their minority members. Building non-discriminatory workplaces from a company’s inception lays a foundation that can attract the most qualified professionals as the business grows. As more and more women (hopefully) pursue STEM degrees, a larger percentage of the most qualified professionals will be women. Workplaces must be ready to receive them as equally valued team members.
Nov 26 2012
My hiatus from blog posting is due to my hiatus from life as I knew it in general. Since wrapping up my clerkship at the end of August, I have been traveling throughout the Middle East and Southeast Asia. Unsurprisingly, I have found some of my lawyering skills applicable in my day-to-day nomadic life, not the least of which are negotiating, reading the fine print, and anticipating (and avoiding the consequences of) miscommunications or misunderstandings. And, of course, there is always humor to be found in the grammatical mistakes or meanings of words that are lost in translation from Arabic/Turkish/Nepalese/Malay/Thai to English. For a writing guru, these mistakes highlight some interesting questions about and the nitty gritty of sentence structure and subtle meanings of words and phrases that I simply do not otherwise notice. For example, one restaurant in Bangkok boasted “We are never close.” Just one letter off, and a changed meaning completely.
Traveling has allowed me to read more non-legal writing than I usually have the energy for at the end of a day of reading cases, statutes, and treatises. Reading well-written non-legal writing is an excellent way to improve legal writing. My reading list includes a variety of material (thanks to my kindle): a weekly magazine (the New Yorker), American literature, magical realism, short stories, memoirs, and non-fiction.
Even though it is sometimes difficult to squeeze into the daily grind, reading non-legal writing is an important way to improve writing in general, including legal writing. Reading allows you to absorb the effective use of written language and increases your facility with words. It exposes you to new vocabulary words. Look them up and adopt them, either in your speech or your writing.
Reading helps improve spelling, grammar, and punctuation. By seeing how words look on a page, we learn how they are spelled–an important skill, even in the age of spell-check. Grammar also sinks in. Assuming that what you read is grammatically correct, as you read you subconsciously absorb how to form sentences and paragraphs. Well-written works are also examples of proper and effective use of punctuation. Pay attention when a semi-colon is used instead of a colon or comma and think about what makes the most sense the next time you face the same choice in your own writing.
Reading a variety of literature and non-fiction also helps improve your knowledge base and boosts creativity. In practice, the benefit might be reflected in a recitation of the facts of your case that humanize your client or captivate the reader. Boosting creativity also influences problem-solving skills that might inform how you frame a particular issue or strategize to achieve a desired outcome.
Of course, reading good writing is the most obvious way to improve your own writing because it provides positive examples. But bad writing can also be beneficial to read if you can recognize why it is below average and how it might be improved. So, if it is a trashy beach novel that fits your mood of the day or the week, don’t discount it as a mere guilty pleasure; it is opportunity to work on your writing.
Aug 2 2012
If a brief is essentially a string of block quotes, it lacks legal analysis of the facts and clarity of argument. And even if block quotes are used relatively sparingly, many readers simply skip over them in search of legal analysis. Indeed, the sentiments of many quotations are best expressed in a writer’s own words with reference to the particular facts and legal issue. Quoting authority should be reserved for particularly poignant, eloquent, or persuasive quotations, which are integrated seamlessly into the writer’s own material.
Generally, it is best to incorporate a quotation into a sentence of your own. The result should be a grammatically correct sentence that flows as though the quoted portion was not a quotation. For example,
In Hibbs, the right to be free from gender-based employment discrimination was violated by the States’ failure to provide leave to employees because such failure “exclude[s] far more women than men from the workplace” and “do[es] little to combat stereotypes about the roles of male and female employees.”
Notice that in this example brackets are used to make the sentence grammatically correct. Here, brackets indicate that part of the word in the quotation was changed. Brackets can also be used to insert a word into a quotation. Empty brackets–[ ]–are used to indicate a letter was omitted.
Ellipses are another tool to alter quotations. Ellipses indicate that words were omitted from the original quotation. They can help make a sentence grammatically correct and allow a writer to omit extraneous material. For example, in Hibbs, the Court quoted itself from a prior opinion:
“[I]t can hardly be doubted that . . . women still face pervasive, although at times more subtle, discrimination . . . in the job market.”
Of course, quotations should always be accompanied by citations to the source. And when altering quotations, the fundamental meaning of the quotation cannot be changed. To the extent that a quotation gleans meaning from its context, a writer should be careful use the quote so as not to misrepresent its meaning out of context.
Sometimes a quotation as a stand alone sentence (or sentences) is necessary and preferred. For example, when discussing the scope of Title VII’s prohibition on gender discrimination, Justice Ginsburg chose to use the following stand alone quotation from a 1969 circuit dissenting opinion:
“A mother is still a woman. And if she is denied work outright because she is a mother, it is because she is a woman. Congress said that could no longer be done.”
AT&T Corp. v. Hulteen, 556 U.S. 701 (2009). Incorporating this quotation into a sentence would have diminished its effectiveness in conveying the meaning. Further, it was novel for this sentiment to appear in a judicial opinion at the time it was written. Quoting it as a stand alone sentence in a dissenting opinion written almost forty years later underscores the notion that although the sentiment espoused by Justice Ginsburg in her opinion is not new, it continues to be rejected.
Finally, although block quotes should be used sparingly, they are required if the quoted material is longer than fifty words. A quotation longer than 50 words is most likely to be unavoidable when the relevant portion needs to be contextualized. I most frequently use block quotes to quote statutes when addressing issues of statutory construction. Although only one clause of the statute might apply to the particular case, the language of the entire section might be relevant in discerning its meaning. In that instance, I emphasize the relevant portions by using a bold typeface, but quote the entire statutory section. By emphasizing the most relevant portions, I hope to dissuade a reader who might be tempted to skip the entire block quote from doing so. It also allows the reader to easily revisit the relevant portion of the quote, if necessary. Using this sort of visual cue in a block quote encourages a reader to read at least the most relevant portion of the quote, ensuring that its meaning is conveyed.
Jul 11 2012
A clause is a group of related words that contains a subject and a verb. It is distinguished from a phrase, which is simply a group of related words. A clause can be independent, meaning it could be its own sentence. For example, “The statute’s language is vague.” A clause could also be dependent, meaning it depends on an independent clause for its meaning. For example, ”Because the statute’s language is vague, it is unconstitutional.”
Relative clauses are a type of dependant clause and are introduced by a relative pronoun (which, that, who, whichever, whoever, whom, whomever, and of which). The relative pronoun is the subject of the clause’s verb. Relative clauses might be restrictive or nonrestrictive. A nonrestrictive clause is not essential to the sentence’s meaning and can be removed without significantly altering it. Conversely, a restrictive clause restricts or limits the noun it modifies. When the clause should be nonrestrictive, precede it with “which” and set it off with commas. When the clause should be restrictive, precede it with “that.” For example, the sentence ”Possession of the firearms, which are operable, is illegal” has a different meaning than “Possession of the firearms that are operable is illegal.” In the latter, possession of only the operable firearms is illegal and the existence of other inoperable firearms is contemplated. In the former, the use of a nonrestrictive clause indicates that all of the firearms are operable.
When a relative clause modifies a person, “who” is used. Whether the clause that follows “who” is nonrestrictive or restrictive depends on whether the clause is set off with commas. For example, “Joan’s friend, who was in the car, is liable,” (nonrestrictive) versus “Joan’s friend who was in the car is liable” (restrictive). The nonrestrictive clause indicates that Joan has only one friend; the restrictive clause signifies that Joan’s other friends were not liable. It would be improper to state, “Joan’s friend, who was in the car, is liable, but the others were not,” because use of the nonrestrictive clause indicates that no other friends exist.
Generally, however, whether a clause should be restrictive or nonrestrictive is up to the writer and based on the meaning that the writer wants to convey. The writer must make sure that the sentence conveys the precise meaning by closely examining whether a clause should be restrictive or nonrestrictive. It is also important to examine whether clauses are restrictive or nonrestrictive when interpreting and applying statutory language and caselaw. The subtle differences in meaning between restrictive and nonrestrictive clauses are opportunities to make legal arguments that support a position or undermine an opponent’s.
Jun 18 2012
Lately, I have been sensitive to and particularly irked by a common sentence construction: “not only … but also … .” For example, “not only was the juror related to the defense counsel, but she was also friends with the defendant” or “not only did the district court abuse its discretion, but it also committed plain error.” ”Not only … but also …” is used when the writer wants to emphasize a particular point, or exaggerate the many factors that favor a particular position. But it has the opposite result. The wordiness detracts from the persuasiveness. And it phrases the positive in the negative. Isn’t it better to simply state, “the juror was related to the defense counsel and friends with the defendant” and ”the district court committed plain error,” or even “the district court did not just abuse its discretion, it committed plain error”?
“Not only … but also …” is used commonly in speech as well. At the moment, I am too biased against the phrase to opine as to whether it is appropriate there, but at least its delivery is packaged with a particular intonation and pace that perhaps makes it okay. Regardless, the fact that this phrase is commonly used in speech helps in understanding why I have seen it pop up in writings time again. When I catch myself tempted to use the phrase, it is because I am transcribing my thoughts as I would say them out loud–the likely reason most writers use the phrase.
In that light, the prevalence of the phrase in writing is an example of how certain phrases that we use in speech are so ingrained in our mode of expression that we take them for granted when we start writing. There is no problem with transcribing thoughts as you would speak them to write a first draft. In fact, “writing how you speak” is sometimes considered an important tactic for clear writing and avoiding legalese. But transcribed speech should be refined to clear and precise writing through editing. The presence of ”not only … but also …” in a final draft is not necessarily indicative of a poorly written piece. But the phrase is a remnant of transcribed speech that should have been weeded out during editing to create a sharper statement. That and similar phrases or constructions are not good legal writing, let alone the best. Yet, their familiarity allows them to go unnoticed and survive editing. Thorough editing means identifying the common modes of expression which we take for granted and then critically examining whether using them is the most precise, concise, and persuasive way to express the point.
May 21 2012
Contributor Eugene Y. Kim is a Professor of Legal Research and Writing at the University of San Francisco School of Law. Follow him on Twitter at @lrwprof.
In many ways, the research and writing projects that you take on during your summer legal internship will be similar to the assignments you worked on in your legal research and writing course in law school. But they won’t be the same.
Handling research and writing assignments in the workplace requires more than just solid research and IRAC skills. For starters, your assigning attorney will want you to approach your work as a lawyer, not as a law student. That means that after identifying the issues, researching the relevant law, and applying the law to the facts, you will also be expected to think critically about the ultimate impact on your client’s case. Based on your analysis, how is the court likely to resolve the pending issue? And how should the client proceed? If you’re not asking (and answering) those questions, you are still thinking like a law student and not like a lawyer.
You will also need to take a more active role in handling your summer legal projects than you did for your research and writing assignments in law school. Here are some tips for doing that well.
Know what you are being asked to do. What is an assigning attorney looking for if she asks you to research an issue and “write up” your findings? Some lawyers like traditional memos while others prefer less formal email reports. Still others may just want printouts of the relevant cases along with a copy of your notes on them. Find out exactly what your assigning attorney wants. No matter how well written your final product is, it isn’t likely to thrill the assigning attorney if it’s not what she wanted.
Know how long your final product should be and how much time you should spend on it. A target number of pages will give you a clue to the breadth and depth of research and analysis that is expected, and a time estimate will help keep you on track. You want to know if you’re going down the wrong path, and if you’ve spent two days researching a question that the assigning attorney said should take you two hours, you probably are. Keep in mind that an experienced practitioner may underestimate the time required to do a project because she has forgotten how long it used to take her to do the work when she was a new attorney. But if you find yourself going way over the estimated time, check in with her to make sure you haven’t misunderstood the assignment.
Know your deadline. “As soon as possible” means different things to different people. Actually knowing the deadline goes a long way in helping you meet it. Be sure you are clear on when the assigning attorney wants your work, and assume that the deadline is a hard one unless she specifically tells you otherwise.
Find examples. Almost certainly, someone in your office has already done work similar to what you are now being asked to do. Don’t reinvent the wheel. Find out where and how your employer archives past work product, then search for templates or samples that you can use as a starting point for your own work. Just be sure that you always do your own research to make sure that any authorities cited are still good law.
Know where to turn for help. Try to identify the junior- and mid-level attorneys in the office to whom you can turn for advice if you get stuck or lost on an assignment. They’ve been in your situation before and will likely be able to help you find your way faster than if you tried to find it on your own. If they have experience working with your specific assigning attorney, ask for inside information on the assigning attorney’s likes, dislikes, and overall working style. That kind of information can guide you in your interactions with the assigning attorney and help you better tailor your ultimate work product. Even if they haven’t worked directly with your assigning attorney before, they may be able to suggest good research leads, recommend secondary sources that you weren’t aware of, or otherwise offer tips on how to approach your assignment. Research librarians can also be very helpful along these lines, especially when you are researching an area of law that is new to you. Get to know your librarian and learn how to work with him effectively. Getting to know the attorneys in your office isn’t just a good way to help you successfully complete your summer assignments; it’s also a great way to develop your network and find mentors who can help you even after your summer internship ends.
Keep the lines of communication open. One of the most common criticisms of summer interns is lack of communication on the status of work for an assignment. Check in regularly with your assigning attorney to keep her apprised of your progress, even if just to report that all is well and you are keeping on top of things. Let her know immediately if you encounter any problems or unexpected developments, especially if they raise new questions or are likely to impact your ability to deliver your work on time. Besides managing the assigning attorney’s expectations, regular status updates are helpful because they invite her to offer suggestions on how best to proceed—suggestions that she might not have thought to make at the outset of the project.
Don’t forget the “little things.” Even if you have only been asked to submit a draft, your assigning attorney will expect your work to be formatted properly, free of spelling and grammatical errors, and edited for organization and clarity. She will also expect that all citations conform to the appropriate citation form rules, and that they have been Shepardized or KeyCited. Your attention to detail on these “little things” will seriously affect your credibility and the assigning attorney’s opinion of the quality of your work, so budget ample time to thoroughly proofread and edit everything that you submit.
Apr 13 2012
Footnotes in legal writing generally serve at least one of three purposes: 1) they provide authority for assertions and principles, 2) they give credit to the ideas of others, 3) they add peripheral or tangential commentary to the primary argument. No matter what appears in a footnote, its significance to the overall piece is diminished simply because of its physical place on the page. Its impact is diminished by the fact that it might never be read.
While footnotes have a substantial place in scholarly legal writing (although, perhaps, a less significant place that what was previously thought), they should be conservatively used in briefs, memoranda, letters, or other law practice writings. Using footnotes differently in each of these types of legal writings is a function of the audience and the purpose of the writing. For example, a law journal article is equally intended to convey a persuasive argument, contribute to a debate, and spark further conversation. Readers are less interested, at least initially, in where the writer’s idea came from, so long as the writing in the body is persuasive. Footnotes in scholarly research provide a compact, easily identifiable, bibliography for an interested reader. To the extent that footnotes in law journal articles contain peripheral or tangential commentary, including it in the text would distract and detract from the larger point. Including them at all might plant a seed for further scholarship, or acknowledge a seed that led to the particular principle footnoted. And footnotes are legitimate vehicles through which a writer can point out the limits of the article’s subject matter or the argument without distracting the reader from the piece.
But writings such as briefs and memoranda are primarily intended to persuade the reader of a particular argument or provide an in-depth analysis of the law. In these writings, resorting to footnoting an idea should be scrutinized. If the footnote contains a tangential or peripheral comment, consider if it should be either altogether excluded or contained in the main text and addressed directly. Footnotes can become a crutch for a writer who cannot fully abandon all of the noise surrounding a crisp argument. Conversely, footnotes might be used to raise an argument without fulfilling the expectation and duty to fully articulate support for it. When I am tempted to footnote an idea, the first question I ask is “if the idea is important enough to be included in the piece at all, why shouldn’t it be in the body of the piece?” I try to work the idea into the body of the piece before deciding that it belongs in a footnote. Sometimes the exercise of working it into the body reveals that it is important enough to warrant its own paragraph. Sometimes the exercise reveals that it should not be included at all. And sometimes, of course, there is a reason why the idea should be in a footnote. For example, an appellee might use a footnote to point out that an appellant had included an issue in its “Statement of Issues” section of the brief, but had not actually briefed the issue, rendering the issue not properly raised on appeal. The appellee might want to show the court that it was not overlooking this issue and explain why it would not be addressed. Including this footnote’s substance in the body would actually be somewhat inconsistent with what the footnote was setting forth.
In short, whether something belongs in a footnote should be determined against a backdrop of a conservative use of footnotes. Think about how important the principle is, why it is necessary at all, and what it adds/the purpose it has to the overall argument. Relegating less important, but not unimportant, aspects of an argument to footnotes better leverages different parts of a writing for overall persuasion. These principles are equally applicable when considering whether citations to legal authority belong in footnotes. The debate around where citations to legal authority should appear is premised on drawing lines based on the type of authority, rather than the purpose of particular parts of a document. There is no reason why some citations to authority can appear in the body and others are better suited for footnotes. Because case law–and whether it is recent, or from an appellate or trial court, or a court outside the jurisdiction–determines the persuasiveness of an argument, most citations to authority should be included in the text. Developments in law directly build on the law that already exists. When I read briefs and opinions, I am interested in a citation immediately after reading a principle. It gives me insight into how seriously I should take a particular proposition, at least initially. But there are occasions where citations to case law are properly included in a footnote. A string cite, for instance, that alerts the court to non-binding authority, but authority that highlights examples of how courts have analyzed comparable fact patterns, might be properly included in a footnote. Or a citation to a firmly established principle might appear in a footnote. Instead of strictly adhering to a rule for or against legal citations in footnotes, carefully considering each citation’s place on the page means carefully considering its role and leads to more nuanced and precise argument.
Mar 20 2012
Thanks to the inspiration and encouragement from a colleague, I embarked on writing a law journal article about women’s fundamental constitutional rights that are implicated at the intersection of family-wage work structures and women’s dual role as wage earner and primary family caregiver. In the article, I argue that family-wage work structures (structures developed around a worker without family caregiving responsibilities) are in part to blame for the stagnant progress that has marked workplace gender equality since the mid-1990s. The article proposes litigation strategies for removing family-wage barriers to women’s equal opportunity in employment.
Of the many questions and issues that I have confronted throughout the process of writing this article, one was the role of litigation in a law and social change agenda. In the article, I wanted to argue that litigation has a necessary role to play in removing family-wage barriers to employment (in conjunction with other cause-lawyering tools, such as policy, consensus-building, and grassroots organizing). But the role of litigation in social change–how effective it is, whether it should be used at all in light of the risks and resources at stake–is an issue that I constantly struggle with. And, admittedly, when I sat down to write this part of the article, I was in a “down on litigation” mood and doubtful about whether I could come up with a convincing argument that litigation should be used.
Lucky for the article, what emerged from my research swayed me. One of the reasons why is a matter of rudimentary legal history. I identified principals in court opinions not authored by the majority that slowly made their way into the status quo. The Equal Pay Act, for example, was inspired by a dissenting opinion by Justice Ginsburg. I also found that sometimes a concurrence from decades ago is the opinion that more accurately reflects the current state of the law than that which was espoused by the majority at the time. That was the case with the “sex-plus” theory of liability under Title VII, first recognized (after several failed attempts) in a 1971 case which left open the possibility that the parental status of women, but not men, could be considered in making employment decisions. Justice Marshall’s concurrence rejected this notion and is more representative of the law today. And one of my favorite discoveries was this quote in a 1969 5th Circuit dissenting opinion from a denial of en banc review: “A mother is still a woman. And if she is denied work outright because she is a mother, it is because she is a woman.” The principle behind this dissenting sentiment is directly on point with what I hope courts will eventually recognize when advocates pursue constitutional claims challenging family-wage barriers. Forty years later, in 2009, Justices Breyer and Ginsburg quoted this 5th Circuit dissent in their own dissenting opinion. While it is still not a part of a majority opinion or statute, it has arguably been elevated from a Circuit dissent on a discretionary procedural issue to a dissenting opinion by Supreme Court Justices.
The research brought dissenting and concurring opinions to the fore of my attention and peaked my interest in more closely examining their value and the role they play in shaping the law. In the examples just cited, if the majority opinions are accepted as the present state of the law, the concurrences or dissents are brief, perhaps imperfect, snapshots into the future of the law. But what about the dissenting opinions that emerge when the majority adopts what used to be a dissent? In that light, surely dissenting opinions are as frequently a reflection of the law’s past incarnations as its future ones. Dissenting and concurring opinions are not statements of law, and have little, if any persuasive value. But in addition to providing a different perpsective, they help put a debate in a historical and political context. They can provide important insight into where the law on any particular topic has been, where it is going or could go, and how litigation contributes to its development. After all, litigation gives the court an opportunity to reconsider, refine, or reform the law as it applies to a current reality.
Feb 13 2012
As part of my campaign to develop an online presence (which prompted me to start this blog), I started using Twitter. About a month after deciding to attend what is akin to an online cocktail party, and a whopping 4 tweets later, I find that tweeting presents a challenge beyond the mental hurdle of injecting myself into a indefinitely memorialized public conversation. And it is a challenge that can actually help me become a better legal writer. Tweeting requires a user to fit an idea into 140 characters. That takes exercising some fundamental legal writing principles: precision, concision, and clarity. The fact that it is a public forum raises the stakes for mastering these principles.
It is a struggle to get my tweets within the 140 character limit without losing meaning. Reducing the tweet to 140 characters is a concentrated micro-editing exercise that examines each word, space, and punctuation mark, their relation to each other, and asks if the individual parts come together to form a whole that accurately captures the idea. Twitter forces the writer to eliminate gratuitous phrases, choose the best words, and write using language that is accessible to a wide audience. This writing and editing process parallels that to which any legal writing should be subjected.
Consider this tweet of mine: “If your brief is basically a string of block quotes, it lacks legal analysis of the facts & clarity of argument. Edit it. #LegalWriting #Law.” At one point, the tweet was something along the lines of “If you write a brief and it is almost all block quotes, it is a sign that it lacks legal analysis of the facts & clarity of argument.” Twitter’s character limits challenged me to critically examine this tweet; the ultimate result was not only shorter, but captured my idea more accurately. The tweet was a response to a pet peeve of mine that I encounter frequently enough as a law clerk who reads a lot of briefs: pages of block quotes interspersed with an original sentence or two per page. When I come across these briefs, without even reading them, I know they will likely lack legal analysis and understanding the writers’ points might be difficult. For brief writers, it should be a sign of the same and a cue to edit.
In writing the tweet, I knew that I wanted to include the hashtags #LegalWriting and #Law. Hashtags help other users find your tweets when searching. That cost 18 characters; 122 remained. I included the advice to edit the brief, which articulates the conclusion that is left to the reader in the draft tweet. I also replaced “almost all block quotes” with “string of block quotes” which is slightly shorter and, more importantly, elicits a stronger visual image which better cues someone editing a brief to the potential problem to which I was referring. Lastly, the final tweet more concisely identifies the brief and its writer by replacing “you write a brief” with “your brief.” This helps save on characters and makes for a smoother read without losing meaning.
While we all have some leeway on Twitter to use acronyms and short form, tweeting is an opportunity to practice the qualities of good legal writing. Those tools we employ to write and edit our tweets can and should be adapted for use in legal writing.