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The not-so-right write stuff

Judge Richard A. Posner has been on the 7th U.S. Circuit Court of Appeals for decades. Appointed by President Reagan in 1981, he was often mentioned as a candidate for the U.S. Supreme Court when the GOP held the White House.

Considering he is now 76, that ship has sailed. But Posner will leave his mark as one of the leading conservative voices on law and economics. He has authored nearly 2,200 judicial opinions and close to 40 books. He has a new book on the way.

Hat tip to the WSJ Law Blog, which obtained a review copy of “Divergent Paths,” Posner’s critique of the ever-widening gap between the judiciary and law schools.

One notable feature of this new book is Posner’s blistering take on legal writing, both from lawyers and from judges.

“It is remarkable how badly the modern law student, modern law clerk, modern lawyer, and modern judge write,” he remarks. “One reason is that good writing is not much valued in modern America (the electronic revolution is partly to blame), not much taught in college—not much taught in high school or earlier, for that matter.”

Legal writing instructors get smacked as well for abetting a belief that legal documents must be written in an artificial “professional” style, “which is false,” he said.

Be wary of judges who trot out Latin phrases in their opinions, too, he warned. Use of Latin “in American judicial opinions is a further tipoff to the staleness of legal language,” he wrote.

Why should a judge use “arguendo” instead of “for the sake of argument”? he queried. And what’s with the use of the term “inferior courts”? he asked

“The jargon in which judicial opinions abound…resembles the pretentious writing found in other intellectually weak but self-important fields,” he concluded.

Pretty withering.


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