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A Superb Stylebook for Law Professors and Students Alike:
Eugene Volokh's Academic Legal Writing
By MATTHEW HERRINGTON
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Friday, Aug. 22, 2003

Were I a better person, I would no doubt be familiar with the entire genre of stylebooks, from Strunk and White's The Elements of Style onward. When faced with any thorny question of writing style, I would be able to pull down from a ready shelf a dog-eared copy of the canonical volume that had seen me through from law school to private practice.

Were I a worse person, I would pretend that I had read such volumes in the past, and draw a comparisons to them characterized by such sweeping breadth as to make them untestable.

Alas, I am neither. Here is the truth. I vaguely remember a slim volume on legal writing that was foisted on me by the textbook-industrial complex (along with the obligatory copy of Black's Law Dictionary) as I was purchasing my first term books. However, my next and final recollection of that book was in connection with the law school's dorm furniture, which suffered from deficiencies both aesthetic and functional. My newly purchased style book was assigned to true up an otherwise tippy writing desk.

No doubt my friends and classmates who have gone on to celebrated professorships gave their stylebooks close study. I did not, though I appreciated the steadying, silent, service it rendered.

That brings me to the topic of today's review - the first legal stylebook I have ever actually perused. It is entitled Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers. Its author is Eugene Volokh, a hotshot professor at UCLA Law School.

Having now, for the first time, carefully read a style book, I now see the error of my ways. If you have a sibling, a child, a friend, even a distant acquaintance, in law school or trying to get something published in a legal publication, buy them a copy of Academic Legal Writing.

Sit there and force them to read it, and perhaps you might also provide a handful of matchbooks for use as furniture-steadying aids. Professor Volokh has distilled into 163 pages a very smart professor's learning on two important areas of concern to anyone involved or interested in legal academic writing: How to write good papers, and how to get them published.

Excellent Advice on Choosing a Topic

The first chapters of the book provide common sense solutions to the bane of nearly all law students and most would-be legal scholars: how to find a topic - or, as Professor Volokh would put it, how to find a claim.

Sharp Guidance on the Writing Process

The middle chapters of Academic Legal Writing cover what I would guess to be the traditional subject matter of a stylebook: how to write well. Most of the rules the book covers are traditional and timeless, but they are also often ignored. Accordingly, anyone writing (whether one's audience is a court or the academy) would benefit from reading Professor Volokh's crisp recounting of the basics that are so often forgotten by legal writers.

Here, for instance, is a little late-summer refresher - drawn from Volokh - of the rules we all know, all break, and would be better off if we all followed:

  • Use fewer, shorter words.
  • Say it once, well.
  • Avoid passive voice.
  • Avoid cliches.
  • Avoid constructing false alternatives (I would have said dichotomies, but then I would have violated the first rule) - it undermines your credibility with the reader.
  • Anticipate and parry counterarguments - it enhances your credibility with the reader.
  • Never rely on a secondary source (for example, a modern court decision that cites an earlier precedent) when the first source (for example, the precedent itself) is readily available. You have to check the first source - failing to do so is a recipe for embarrassment or worse.
  • Kill them with kindness - showing your opponent's arguments to be mediocre is infinitely more persuasive than derision.

These chapters also offer two important, though basic writing strategies. First, write around writer's block: just open the computer file, write what you can now, and backfill later. Second, whether you are writing a letter, a brief, an article, or a shopping list, make sure you leave yourself time to take a fresh-eyed look at it later.

This is one of the best pieces of advice in the book. Prior to reading Professor Volokh's work, I might have said something flowery such as: There are few mistresses as seductive and deceiving as one's own words, fresh on the paper. But with the benefit of having read Academic Legal Writing, I will not burden my reader with such purple prose, and will instead simply note that what feels great at the time of writing often needs reworking when examined the next day.

Of course the final rule of writing - as Volokh is well aware - is to know when to break the rules. Judges, my primary audience these days, face an onslaught of papers in their chambers. The right oddball phrase, or the right unusual word, can spark interest.

Thus, there is nothing wrong with throwing in the occasional "kafuffle" but as with any spice, the unusual bon mot must be used sparingly. And of course no one is perfect. I noted with some glee that after railing against cliches, even the rock-steady Professor Volokh slipped up but six pages later, invoking the old saw of a craftsman and his tools.

Some Sober Realities About Getting A Law Review Article Published

The final chapters of the book feature a warts-and-all primer on how the academic legal writing market works. It answers important questions such as: Where should you send your paper? How can you maximize the likelihood it will be accepted? How can you leverage that acceptance up the Journal food chain, to publish in the best venue possible?

In my third year of law school, a professor took me aside, and explained how I should get my own article published; at the time, it was news to me. Those who don't encounter a kindly professor to act as a mentor, can use this book instead; those who do, will still find reading it more than worthwhile. If you want to get yourself published, you owe it to yourself to read this book.

In sum, this is a valuable book. Read it, give it away, make other people read it.


Matthew Herrington practices law in Washington, D.C. His email address is mherrington@wc.com.

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