The Bad Writing in Casebooks

Vol. 41 No. 3

By

Bryan A. Garner (@BryanAGarner) is the president of LawProse, Inc. He is the author of many widely used books, including Reading Law: The Interpretation of Legal Texts (with Justice Antonin Scalia), Garner’s Dictionary of Legal Usage, and Garner’s Modern American Usage. He is the editor in chief of all current editions of Black’s Law Dictionary.

If you entered law school with a literature or journalism background, the reading can be especially torturous to your sense of style. If you’re inattentive, tone-deaf, or just impervious to bad grammar and clunky style, you may be fortunate enough to miss all the linguistic vandalism taking place before your very eyes. But if you’re not, you’ll probably spend much of your law-school reading life in at least a moderate state of distress.

It’s one thing to notice the foreword of your book misspelled forward (as in certain casebooks). It’s quite another to spend five minutes struggling to discover the meaning of a sentence like this one, from a torts casebook: “We see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage, of the same general sort, from the same forces, and to the same class of persons, should be relieved of responsibility for the latter simply because the chance of its occurrence, if viewed alone, may not have been large enough to require the exercise of care.” What does this really mean? You must exercise care in all your actions, regardless of the risk involved.

Even a famous case that is included in nearly all torts casebooks—Palsgraf v. Long Island Railroad, by the revered Justice Benjamin Cardozo—has some pretty impenetrable prose: “If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to someone else.” That passage says that an innocent act is a tort only if a reasonable person would have foreseen the harm. Which version would you prefer to memorize?

Some of the torts cases are quite old. Consider Weaver v. Ward, dating from 1616. Its first paragraph as quoted in one casebook reads this way—a peculiar mixture of English and Latin (none of it explained in footnotes or elsewhere, and the Latin remaining unitalicized):

Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded that he was, amongst others, by the commandment of the lords of the council, a trained solider in London, of the band of one Andrews, captain, and so was the plaintiff: and that they were skirmishing with their muskets charged with powder for their exercise in re military against another captain and his band; and as they were so skirmishing, the defendant, casualiter et per infortunium et contra voluntatem suam, in discharging his piece, did hurt and wound the plaintiff; which is the same, etc., absque hoc, that he was guilty aliter sive alio modo.

If you’re committed to understanding this stuff and you’ve never studied Latin, you’re out of luck: the Latin terms aren’t “legal phrases,” per se (ahem), and even a Latin dictionary will leave you stuck.

Your torts professor may have insisted that you not consult “canned” case briefs. But it would be hard in this instance to resist the temptation.

One wonders whether contracts professors delight in asking a student to recite the facts of an old British case like Bettini v. Gye. Here’s one crucial sentence as excerpted in a casebook:

The defendant pleaded, ninthly, to the third count, that the plaintiff was not in London six days before the commencement of the said engagement for the purpose of rehearsals, nor had the defendant notice before the said six days of the plaintiff’s inability to be in London, or that he would not be in London six days before the commencement of his said engagement for the purpose of rehearsals, nor was the plaintiff ready and willing to attend such rehearsals, although it was necessary for him to do so, wherefore the defendant did not nor would receive the plaintiff into his service in the capacity and on the terms aforesaid, which is the breach complained of.

The court in that passage was trying to say this: “Here is what Gye says about the third count. Bettini breached the contract by failing to appear in London for rehearsals by March 24, as stipulated in the contract. Nor did he even notify Gye that he would be late. And when he did arrive on the 28th, he was neither ready nor willing to rehearse. So Gye claims that his refusal to employ Bettini was no breach.” 

Let’s turn to property law. It’s just as bad: the writing seems calculated to produce headaches. Consider the garbled chronology here: “At the time the goods were delivered to the impostors, Cunard was no longer in physical possession of them, having chosen, without notice to the consignee, to allow Clark, its stevedore, to come into physical possession of the cargo and to serve in Cunard’s stead.” The idea isn’t hard to express, but the language gets in the way. The passage simply means that Cunard could not have given the goods to the imposters because it had already given them to Clark, the stevedore.

You’ll often find that the excerpted cases attempt the highly inadvisable: stating the issue in a single sentence. The result in any but the simplest case is inevitably a chronological mishmash. Here’s an example from a property casebook:

The question in the instant case would then be whether a court can consistently with the Constitution prefer the interests of an absentee landlord in evicting a tenant solely because she has reported violations of the housing code to those of a tenant in improving her housing by resort to her rights to petition the government and to report violations of laws designed for her protection.

Reporting to whom? No: preferring one thing to another. But it’s gibberish.

You may begin to wonder whether close reading, with a view to full comprehension, might be a liability. Perhaps you’re supposed to skim. Get the gist of it. Don’t look for full meaning where there might not be any.

Sometimes the literary faults are found not in old cases but in the prose of the casebook writers themselves:

The destruction of the seal and the failure of the legal system to produce a replacement formalism have mandated that the channeling function be supplied by less obvious influences. The consequence has forced a near exclusive reliance on a doctrine which few could readily explain to a visitor from another planet.

Forgive me if I don’t translate this one.

Now let’s say that, having read this essay, you’re feeling more unhappy than ever about watching the English language being hanged, drawn, and quartered. (For the grossest definition in Black’s Law Dictionary, see how I define hanged, drawn, and quartered there.) You need a way of coping, and I propose two methods.

First, console yourself with the deep truth that good writing will make you feel smart—while bad writing will make you feel stupid. Most of what you’re reading in law school is badly written.

Second, let’s have a Student Lawyer “Bad-Legal-Writing Contest.” Send me the worst instances you can find—up to 150 words (a sentence or a paragraph or two)—as nominees. If we can collect ten egregiously wayward, perversely overcomplicated, or scandalously ungrammatical passages in published legal writing (not just casebooks), I’ll name them and reward them for their grotesqueness. Let’s have some fun with this. It’s up to you to nominate some candidates. Start looking and stop cringing. I’d like to help you cope—through ridicule and satire.            

 

 

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