Wednesday, February 19, 2014

Wanton Sentences

She puts the period often from his place;
And midst the sentence so her accent breaks,
That twice she doth begin ere once she speaks.

The Rape of Lucrece, Stanza 81 

The “PrawfsBlawg” is currently hosting a contest. It seeks nominations for “the worst sentence in the history of American judicial opinions.” Sadly, viable contenders abound. The Prawfs provide this example from the Supreme Court’s 1851 decision in Cooley v. Board of Wardens:
This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the states, in conformity with the circumstances of the ports within their limits.
Cooley is routinely taught as a seminal case about the relationship between the states’ police power and the federal government’s power under the Constitution’s Commerce Clause.  In the case, the Court held that a Pennsylvania law, which required that all ships entering or leaving Philadelphia hire a local pilot, did not offend the Constitution.
Okay, so what? The point of this post is offensive sentences, not offenses to the Constitution.
This 91-word monstrosity from Cooley is indeed offensive; it offends the senses because its sense is so hard to ascertain. No wonder so few law school graduates know how to write when this is what is offered up as an exemplar of judicial analytical prose.
To be fair, texts, in the form of case law, are not selected for inclusion in law course curricula because they exemplify scintillating (or even workmanlike) prose.  Generally, judicial opinions are selected as vehicles for teaching law students because they show the emergence of some legal proposition deemed important for understanding how some doctrinal area of the law has evolved. The writing is just what one has to slog through to ferret out the all-important proposition.
There is a painful irony in this, of course. For let’s be frank: even mathematicians care a great deal about values like “elegance” and “simplicity” and “accessibility” when it comes to solving elusive theorems. Yet The Law, where the medium is, ineluctably, language itself, readers are often subjected to language devoid of craft—or at least composed with little regard for the aesthetic values that guide many others who write for a living.
I admit that I continue to struggle with offensive sentences, constructions bloated beyond measure. I attribute this tendency to a childhood spent reading 19th century novels instead of doing my homework. Early on, I developed a pronounced attraction to esoteric and convoluted word play. The Faulkernian, Proustian, Dickensian, Bronte-an, Dostoyevsky-an, compound-complex convolution continues to hold secret sway over my instinctual pleasure centers. Yet I have learned to resist the impulse to subject the readers of my (legal) writing to these highly subjective preferences. At the very least, I have learned to make a habit of rooting out the results of these deep-seated impulses while reviewing and revising my legal work.  Because, ultimately, I’ve accepted that the impulse runs counter to the goal of effective communication.
Alas, what may appeal to some small contingent of eccentrics does not tend to work for a general readership. And although most legal writing will be consumed by a minuscule rather than a general audience, legal writing today is supposed to aim for accessibility above all. For easing others’ pain. For cutting through the mire. Because all that law stuff is difficult and dense and incomprehensible enough as it is. See excerpt, supra, Cooley v. Board of Wardens, 53 U.S. 299 (1851).
Some readers (should such readers exist) might find it odd that I am urging legal writers to strive for simple sentence structures. This blawg is, after all, devoted to holding the flame aloft for William S.  But that guy really did know his way around a sentence. His form demanded certain contortions and permitted other indulgences. But when it comes to crafting a succinct zinger, the man knew how to deliver. Moreover, he recognized that having fun with sentences was among the few activities separating us from other beasts. As Feste, the Clown in Twelfth Night, says:  “A sentence is but a cheveril glove to a good wit: how quickly the wrong side may be turned outward!” [III.1] And as Viola says, prettily in response: “ Nay, that's certain; they that dally nicely with words may quickly make them wanton.”
So let’s have no wanton dallying with words such that our sentences disgrace us.
P.S. Special thanks to Kasia for the inspiration.

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