Sonia Sotomayor: Activist Grammarian

Posted on Categories Legal WritingLeave a comment» on Sonia Sotomayor: Activist Grammarian

William Safire reported in a recent column that Supreme Court nominee Sonia Sotomayor has a pronounced distaste for bad writing.  She wants the briefs she reads to be written properly, and she believes in carefully crafting opinions.  In particular, Sotomayor says, “the unnecessary use of the passive voice” causes her “to blister.”

When I was a young man, I worked briefly as a journalist, and all of my editors argued the active voice was a more direct and vigorous mode of expression.  The passive voice, they insisted, denied human agency by sticking a helping verb such as “is” or “was” between the subject of a sentence and an action verb.  Since becoming a legal academic, I have noticed the passive voice everywhere I look in legal prose, and I have struggled (with limited success) to stop the passive voice’s creeping incursion in my own writing.

Why is the passive voice so common in legal writing?  It would be too simple, I think, to say lawyers are lousy writers.  Surely we are no worse than accountants, bankers, doctors, and track coaches.  Perhaps the ubiquity of the passive voice in legal writing relates to the positivist assumptions most legalists internalize.  We like to believe laws, legal principles, and precedents stand tall and clear.  When we apply the law to controversies, neutral and certain answers emerge.  It is easy and ideologically convenient to announce, “It is so ordered.”   Might Sonia Sotomayor be prepared to say instead, “I think the correct result is . . . .” 

Sotomayor, Obama, and Ideology

Posted on Categories Political Processes & RhetoricLeave a comment» on Sotomayor, Obama, and Ideology

I am among what must be a million or so people who receive e-mail messages from President Obama. They come addressed to “David” and are signed “President Barack Obama.” The most recent concerned the Sotomayor nomination and included an earnest four-minute video in which the President offered his reasons for the nomination.

I found the video impressive for various reasons. The President of course comes across as photogenic, genuine, and articulate. My goodness, he did not muff a single word! He also is a superb ideologue. In discussing the Sotomayor nomination, he skillfully invokes the importance of hard work, the rags-to-riches myth, the notion of a neutral rule of law, and assorted other staples of the dominant ideology. The President also assures us that the nominee herself is not an ideologue. The disavowal of ideology might in itself be the video’s most ideological ploy.

April Is the Cruelest Month

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Spring is rumored to be in the air, but in the legal academy and in general it isn’t always the happiest and most optimistic of times.  T. S. Eliot offered the following lines in the The Waste Land:

April is the cruelest month, breeding

Lilacs out of the dead land, mixing

Memory and desire, stirring

Dull roots with spring rain.

Winter kept us warm, covering

Earth in forgetful snow, feeding

A little life with dried tubers.

Influential Articles: Llewellyn’s Law-in-Action

Posted on Categories Legal ScholarshipLeave a comment» on Influential Articles: Llewellyn’s Law-in-Action

In response to the Blog editor’s call for discussions of law review articles that have influenced our work as academics, I offer a few words on Karl Llewellyn’s “A Realistic Jurisprudence – The Next Step,” 30 Columbia Law Review 431 (1930).  Llewellyn’s words are often cited as the first important salvo of the legal realist movement, and the article has influenced my own teaching and writing in virtually every subject area I’ve tackled.

Llewellyn begins by asserting that “law” is one of our “loosest of suggestive symbols.”  “Law” ranges in his mind from such simple forms as statutes and appellate holdings to a range of socio-cultural control devices and institutions.  “I have no desire to exclude anything from matters legal,” Llewellyn says.  “I am not going to attempt a definition of “law.  Not anybody’s definition; much less my own.”

However, Llewellyn then goes on in the bulk of the article to emphasize a particular “focus” or “point of reference.”  Continue reading “Influential Articles: Llewellyn’s Law-in-Action”

Favorite Wisconsin Cases to Teach: State v. Oakley

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process, Wisconsin Supreme Court1 Comment on Favorite Wisconsin Cases to Teach: State v. Oakley

It’s unusual for a law review in one state to devote an issue to a decision from the supreme court of another state, but that’s exactly what happened when the Western New England Law Review published a 2004 symposium issue concerning State v. Oakley, 629 N.W.2d 200 (Wis. 2001).  I personally welcome the opportunity to teach and, in the process, critique the decision.

The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments.  Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children.  However, the probation was conditioned on Oakley having no more children until he could support the ones he already had.  A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order. 

Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy.  Continue reading “Favorite Wisconsin Cases to Teach: State v. Oakley”

“Ah, Bartleby! Ah, humanity.”

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Herman Melville’s novella “Billy Budd” has firmly secured its place in the law and literature canon, but a different law-related work by Melville is my favorite.  Over the last twenty-five years or so I have almost annually read “Bartleby the Scrivener – A Story of Wall Street” (1853), being moved by it more each time.

The narrator of the story is a humane, tolerant lawyer who was formerly a Master in Chancery and who now presides over a small Wall Street law office.  His employees include an office boy and three scriveners, the most eccentric of whom is Bartleby.  Demonstrating a certain “pallid haughtiness,” the latter at first refuses to complete small assignments and then over time declines to do anything at all.  His signature statement when asked to copy a legal document, to run an errand, or – ultimately – to seek work elsewhere is “I would prefer not to.”  In one of the lighter interludes of the story, all of the characters, the narrator included, cannot stop using the word “prefer” in their own comments.

However, the story is neither farcical comedy nor romantic fantasy.  With the lawyer/narrator as our introspective vehicle, we as readers are invited to make sense of Bartleby as a symbolic representation of humankind.  Is Bartleby basically an alienated worker, doggedly copying documents to the detriment of his eyesight?  Is he mentally ill, staring for hours out his small window at a black wall only three feet away? Does he display a hostile passive aggressiveness, refusing to be remunerated, fed, or simply helped?

The questions of course trump the answers.  After the lawyer/narrator realizes Bartleby is sleeping in the Wall Street office, he grasps the true seriousness of the situation.  The lawyer finds going to church useless, and he instead wanders the streets of antebellum Manhattan desperately trying to understand both Bartleby and the human condition.  “My first emotions had been those of pure melancholy and sincerest pity,” the lawyer says, “but just in proportion as the forlornness of Bartleby grew and grew in my imagination, did that same melancholy merge into fear, that pity into repulsion.”  The lawyer realizes that alms cannot solve the problem.  It is Bartleby’s soul that suffers, and his soul cannot be reached.

In the end, the lawyer relocates his office on Broadway closer to City Hall, and the owner of the Wall Street building has the police remove Bartleby.  He is taken to the Tombs, where he refuses to eat or communicate. The lawyer visits several times but to no avail.  On his last visit he finds Bartleby curled up and dead with his face against a wall in the prison courtyard.  “Ah, Bartlelby.  Ah, humanity.”

Court Tourism

Posted on Categories Popular Culture & Law1 Comment on Court Tourism

A phenomenon called “court tourism” has emerged.  Growing numbers of individuals are going to their local courthouses for several hours at a time to prowl the halls, watch the proceedings, and contemplate the human stories being played out.  Many of the “court tourists” are unemployed or retired, and almost all have no legal backgrounds.  A few were recently interviewed on the Canadian public radio program “Definitely Not the Opera,” and the interviews can be downloaded from the December 13 broadcast at

The phenomenon intrigues me.  I don’t think it compares to the practice dating back to the earliest decades of the Republic of gathering to watch major trials.  After all, the great majority of proceedings in today’s courthouses are not trials, and the court tourists watch whatever they can find, regardless of how trivial it might be.  Perhaps court tourism was prompted by the extensive media coverage of the O.J. Simpson and Michael Jackson trials.  Alternatively, court tourism might be inspired by the ubiquitous pseudo-court shows such as “Judge Judy” and “Judge Joe Brown,” to name only two.   Whatever the inspiration, today’s court tourists want to be entertained.  A trip to the courthouse is cheap recreational activity.

We must surely have become a postmodern society when legal proceedings no longer seem the path to justice, but rather serve as a source of escapist titillation.

Appreciating Our Professors: Remembering Professor Bork

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This is the first in a series of posts this month remembering law professors who influenced us.

When I looked over the courses for my first semester of law school, I realized I had a fellow named Robert Bork for Constitutional Law. This meant nothing particularly important to me at the time. It was well before his nomination for the United States Supreme Court, and he was just another professor in my mind. However, I soon realized that the good professor would be quite different than others to whom I was assigned. The politics of the law school in those days were for the most part toward liberal or even to the left of liberal, but Professor Bork was a staunch conservative. Each of his classes was an intense argument about what the Constitution meant or should be understood to mean, and he never gave an inch in a room full of students who for the most part did not agree with him. Still playing in my mind is the whole week of classes in which Professor Bork insisted cases championing the principle of one man, one vote were inconsistent with the Framers’ intent.

Bork never convinced me that he had the correct read on the Constitution, and I actually moved farther and farther away from his conservatism the longer I studied with him. Yet Professor Bork demonstrated for me a way to teach law. He insisted the law had to be taken seriously and that it had ramifications. He didn’t come to class to show us how smart he was or to play stylized teacher-student games. He closed the door, loosened his tie, and tried to articulate what was the best and most valuable way to understand what we were studying. It was a variety of earnest, engaged teaching that I wish was a bigger part of the contemporary legal academy.

Happy Columbus Day?

Posted on Categories Legal History2 Comments on Happy Columbus Day?

We have put aside naive notions of Christopher Columbus as the heroic discoverer of the New World, but on Columbus Day and in general we should continue to contemplate the troubling bases and ramifications of Columbus’ voyages.

Columbus’ voyage in 1492 rested on his contractual agreement with the King and Queen of Spain. In return for spices and especially the gold he anticipated finding, Columbus received financing for three small ships and a combined crew of 40 and also promises of ten percent of all profits, the lucrative governorship of any new-found lands, and the title “Admiral of the Ocean Sea.” Columbus returned from his first voyages with a few spices, gold he had plucked from native peoples’ ear lobes, and 350 newly enslaved men and women. (An additional 250 had died on the sail back to Spain.) The King and Queen were impressed enough to finance a second expedition in 1493 of seventeen ships with 1200 men–including a full cavalry troop and a half-dozen priests. The fleet raided and plundered the Caribbean islands and was followed by subsequent large expeditions under Columbus’ command in 1498 and 1502.

The indigenous peoples of the Caribbean paid the heaviest price for these ventures. Continue reading “Happy Columbus Day?”

The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?

Posted on Categories Legal Education, Popular Culture & Law9 Comments on The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?

I recently screened The Paper Chase (1973) in one of my law school classes.  While the majority of current law students are more familiar with recent pop cultural portrayals of legal education such as Legally Blonde (2001), The Paper Chase seems to me to set the stage for those portrayals, especially through the character of Professor Kingsfield and the images from his menacing Socratic classes.  I interpret The Paper Chase as the fictional story of a law student encountering and then overcoming the dehumanizing forces of legal education. Continue reading “The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?”