Anatomy of an Op Ed

dukeellington-anatomyI authored an opinion piece in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that was published in the June 28, 2009 edition of the Milwaukee Journal Sentinel.  You can read the piece here (and you can read a “dueling” piece authored by Rick Esenberg here).

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

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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 . . . .” 

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2009 Nathan Burkan Memorial Competition Winners

musical_notessvgEvery year, the American Society of Composers, Authors and Publishers (ASCAP) sponsors the Nathan Burkan Memorial Competition, named after the lawyer who founded ASCAP in 1914. The competition awards prizes at accredited law schools across the country for the best one or two papers in any area of copyright law at that law school. I am very pleased to announce this year’s winners of the competition at Marquette:

  • First Prize: William K. Pridemore II, Foul Ball! Why the Digital Millennium Copyright Act Strikes Out on Fair Use
  • Second Prize: Kevin P. Rizzuto, Just Say No (to Injunctions Enjoining Future Sale or Lease of Copyrighted Residential Homes)

First prize carries with it an award of $600, and second prize is awarded $250. Congratulations to Will and Kevin!

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