Mastering the Art of Legal Writing

childsWednesday night I went to see the movie Julie & Julia, which is about a writer, Julie, who blogs about working her way through chef Julia Child’s famed cookbook, Mastering the Art of French Cooking, in one year.  I loved everything about the movie, and as such, I’m starting off this blog post with a discussion of the movie.  (This post was actually originally entitled “Best Brief Awards.”) 

One of my favorite scenes was when Julie pulled her first roasted whole chicken out of the oven.  I roasted my first whole chicken this summer.  Like Julie, who felt like a “lobster killer” when she boiled three live lobsters for Lobster Thermidor, I must admit that I felt a bit like an executioner when I ordered my organic hand-fed chicken through our CSA, Backyard Bounty.  Guiltily, I asked Farmer Laura how she knows which chickens are ready for slaughter.  She said she knows it’s time when the chickens start to bite her.  (I guess the lesson there is “don’t bite the hand that feeds you.”)  At home with my chicken, I tried to do the chicken justice by dressing it with olive oil and sprigs of thyme and rosemary from our garden.  I felt Julie’s same sense of pride and excitement when I opened the oven door and a perfect golden-brown roast chicken appeared from the oven.

Watching the movie reminded me of how students develop in their legal writing classes. 

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A Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching

In conjunction with some papers that I am completing, I have been thinking a lot about the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various “crises,” e.g., the financial seizure, global warming and perceived flaws in the delivery of health care.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either. 

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Gableman Prognostication

Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides “[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.” This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that “[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.”

The difference between “shall” and “should” is significant. The preamble to the Judicial Code states that “[t]he use of “should” or “should not” in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.” (emphasis supplied)

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