Liberation blogology

Earlier this month, lawprofblogger Doug Berman wrote a post for published an article in the National Law Journal. In it, he argues that blogs set lawyers and law professor free by allowing them to avoid overwrought legalisms in their writing. He argues (warning — block quote):

Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.

I will more fully address the substance of Professor Berman’s argument in the 172 painfully footnoted pages of my forthcoming law review article, Bargaining in the Shadow of the Blogosphere, 15 J. L. & Ponder’s Assert’ns. 101 (forthcoming 2008). For now, let me just throw out a few half-baked ideas on why Professor Berman’s argument, while interesting, may be overstated.

It is absolutely true that there are stuffy lawyers who write with too much legal-ese, and who could use a good editor. It is also absolutely true that there are many samples of bad legal writing which one could locate with a minimum of effort. (No, we won’t name any names. We’re simply going to take judicial notice of this one.)

However, it is also true that there are many lawyers, and maybe even a few professors, who commit the opposite sin. Yes, I’ve seen pleadings that were tied up in string cites; I’ve also seen a few that were positively threadbare.

And, of course, there are people at every stage in between. Some who write beautiful and succint thoughts; some who write longer but also beautiful thoughts; and others (whose thoughts are less beautiful perhaps) who also manage to land somewhere between laconic and verbose.

Professor Berman’s optimistic vision — a vision I would be happy to see come to fruition — involves verbose lawyers who discover blogging, and thus learn to excise that unnecessary, extra, final . (Without doing violence to the meaning, of course.)

Now — and since this is a blog post, I’ll only make one point here; I’ll save any others for future posts — the potential problem I see is this: Those people most likely to benefit from blogging are also probably those least likely to start blogging. Blogs are typically written by people who already have a gift for terse expression. Eugene Volokh is the author of a popular book on legal writing — does anyone really think that he has problems with wordiness?

On the other hand, try this mental exercise. Think of the three wordiest lawyers you know. Practitioners, professors, (dare we say?) judges — whoever. Think of the three people with the most impenetrable writing; think carefully, make sure you’ve got your candidates.

(Putting me on the list is not allowed, Dave Hoffman!)

So, got them?

Now, if Professor Berman’s theory is correct, those three individuals could each benefit greatly from the terse writing environment of blogging. Right?

So ask yourself — could I ever see these people actually blogging? Because I’ve got my list — and I can’t. In fact, there is almost no overlap between the people I know who could really use some time in the blogosphere, and the people likely to actually be found here.

I would love it if I could believe in Doug Berman’s vision. I would love it if I thought that bad writers would take to the blogosphere in droves and learn to write succintly. Lawyers everywhere would sigh in collective relief; birds and flowers would rejoice at the forests saved.

And it’s true that perhaps with sufficient peer pressure and proselytizing — a big sign reading “don’t you want to blog, Professor Winchelhaus?” on every wall — outliers could be brought aboard. Perhaps judges and professors and law-firm partners could begin to force laggards to take remedial blogging classes.

But absent some serious peer-pressure marketing or actual compulsion, I suspect that the sick just won’t go to the hospital. The same bad habits that make bad writers bad to begin with — wordiness, over-citation, and so on — seem likely to also keep them from the blogosphere, where they might otherwise pick up some salutory habits.

I’d write more, but I’m now just a few sentences away from (or perhaps a few sentences beyond) the no-longer-pithy threshold. I guess I’d better close this post and go fill in footnote #670 for that damn law review article.

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