Orwell on Law Scholarship
I recently rediscovered George Orwell’s wonderful essay “Politics and the English Language,” which I read years ago in college but had essentially forgotten. Rereading it years later, I was struck by how much it had to say about the business of writing legal scholarship. In the essay, written in 1946, Orwell makes the case that over-complex and vague language in nonfiction writing leads to laziness of thought and poverty of discourse. (A copy of the essay is here, but Orwell is better read, I think, on paper than on a computer screen.)
Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create deliberate ambiguity. Reading the essay made me think immediately of law scholarship, especially scholarship written by beginning legal scholars (including some of mine). Law professors often adopt tired or jargony metaphors (“slam dunk,” “atmospherics”) or use needlessly complicated words (many uses of “deontological”). Part of this trend, I think, is the feeling among untenured scholars to appear smart and able to use fancy words – to sound like a scholar. This can be a reinforcing trend – when your colleagues use needlessly complicated words, there’s often a feeling that you need to as well, in order to seem as scholarly as everyone else. Another overuse of complicated words can occur to hide meaning, or to avoid engaging in serious analysis. Lots of euphemisms (“transaction costs”) would seem to fall into this category.
Orwell concludes his essay with a summary of his rules for good nonfiction writing:
(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
(ii) Never use a long word where a short one will do.
(iii) If it is possible to cut a word out, always cut it out.
(iv) Never use the passive where you can use the active.
(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright barbarous.
My point is not to pick on legal scholarship, as much as to suggest that a simpler and more direct style in legal scholarship (and legal discussion generally) should be the way to go, and that there’s a lot for all of us to learn in Orwell. As he puts it, language should be “an instrument for expressing and not for concealing or preventing thought.” When we make our arguments simply and directly, and we don’t hide behind euphemism or wordiness, readers can undersand what we say and agree (or disagree) more readily. There’s a lot to like in such an approach, and it reminds me of some scholars whose work I admire whose work really embodies this approach to writing. Orin Kerr (GW) and Eugene Volokh (UCLA) come to mind. I often disagree with the arguments in their work, but their plain style makes disagreement more obvious, and allows for a more direct, lively, and constructive disagreement.