Monthly Archives: November 2012

Turkeys and Thanks

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Not One Shred of Evidence, But Don’t Let that Stop You

Most of the stuff I blog under the “Tinfoil” label has been right-wing craziness, so it gives me a bemused sort of satisfaction to be able to offer an entertaining left-wing edition, Anonymous, Karl Rove and 2012 Election Fix?

Note that not one shred of evidence is actually offered for the theory that uber-hackers stopped Karl Rove from stealing the Ohio election, but don’t let that stop you enjoying it.

Posted in Politics: Tinfoil | 3 Comments

On Teaching From Badly Written Cases

[Occasionally I resurrect a draft blog post that somehow never made it to publication when I first wrote it. This is one of them.]

C.E. Petit, he of Scrivner's Error, pens (?) a rant about the poor state of legal writing amidst law graduates:

Yet another set of law school deans wrings its collective hands over law schools' failure to teach writing skills sufficient for lawyers to survive in practice. The problem is that it really is the deans' fault…

Among his targets, Mr. Petit would blame the judiciary, for writing so poorly, and the legal academy for inflicting generations of judicial butchery of the English language upon the poor unsuspecting 1Ls, 2Ls, and 3Ls.

While admitting there is a legal writing problem, as a law professor engaged, so it seems, in corrupting the keyboards of the young, I would like to plead justification (necessity).

Mr. Petit proffers a solution to the bad-legal-writing problem:

Perhaps most important of all, the deans need to trash virtually every casebook currently in use. The biggest problem with legal writing is that law students see mostly examples of bad (or worse) legal writing in the bulk of their classwork, particularly in the common law courses. In Contracts, students study Sherwood v. Walker exhaustively, and still can't figure out what the holding is because the judge couldn't bloody write (even by nineteenth century standards in Michigan); in Property, even the casebooks try (ineptly, with one exception) to make head or tail of the actual ruling in Shelley's Case; in Torts, the string of double negatives (which can be helpful rhetorical devices when used sparingly, but not in a string) in the leading cases on product/strict liability causes more confusion than anything in the discussion over comparative/contributory negligence; and in Criminal Law, just try reading M'Naghten's Case. More casebooks need to follow the path that Professor LaFave did in Criminal Procedure: Clear, concise summaries, supplemented by extended quotations where helpful… and that California's Justice Mosk did in establishing the concept of comparative negligence by writing more simply and more clearly than did the advocates of the contributory negligence system.

I think this is mostly wrong. There is real value in teaching from real cases, without potted summaries, even (especially?) the badly written ones. This is the reality of law practice: Judges often write badly. (I have said this for years: see my Legal Writing Tips.) Lawyers need to know how to decipher bad judicial prose. Meaning-extraction (or even and especially meaning-creation) is an important legal skill we work hard to impart to our students. How will they learn whether to appeal a badly written case except by struggling with its ancestors?

In addition, students need to know the big cases. Even if they are badly written, that doesn't detract from the leading cases' importance. A student who knows her way around the original has an advantage over someone who just learned from a summary.

I agree that it is hard to first show students precedents — some eloquent and many ham-handed — tell them the cases matter, sometimes matter a great deal, and then in the next breath ask students not to write as badly as those very judges whose torturous prose we've force-fed them, but those are the cards lawyers are dealt. Those cases are real. They have authority. They must be confronted and dissected, even if that carries risk of their being emulated.

[Original draft, Sept. 2010]

Posted in Law School, Zombie Posts | 7 Comments

Tax Risks in Occupy Wall Street’s Debt Jubilee

I wrote previously of Occupy Wall Street’s plan to buy and forgive distressed consumer debt. A commentator on that post noted that it created a tax issue, and a colleague agreed it was a risk. A fuller treatment of the problem, and some instant revisionist thinking about the ‘Jubilee’ program in general is over at the excellent Naked Capitalism blog, Occupy Wall Street’s Debt Jubilee: A Gimmick with Tax Risk.

Like most of the things they run, well worth a read.

Posted in 99%, Econ & Money, Law: Tax | Comments Off on Tax Risks in Occupy Wall Street’s Debt Jubilee

My Students Want a Neuter Singular

I’ve been reading draft student papers. One extremely common locution goes like this: “If a person does [something] then their liability will be [whatever].” That “their” is there because students don’t want to say “his” or “her” nor use the clunky “his or her”. English doesn’t currently offer a neuter word; “their” is a plural when the grammar requires a singular, but to my students’ ear that is less of an issue than picking a single gender to refer to both.

Why exactly they don’t pluralize the whole thing (“If people do [whatever] then their liability will be [whatever]”) I don’t know.

This language shift suggests that at some time in the future the non-prescriptivist definition of “their” will shift to include a role a neuter singular possessive. But I don’t believe we are there yet on “their” so I’m marking “their” up whenever I find it misused.

Then again, I may be behind the times: already offers “their” a secondary singular meaning:

2. (used after an indefinite singular antecedent in place of the definite masculine form his or the definite feminine form her): Someone left their book on the table. Did everyone bring their lunch?

Posted in Law School | 5 Comments

Words So Strange I Almost Expect My Monitor to Melt

the voting records show that Thad Cochran is to the left of all but three Republicans in the Senate.

— Stuart Benjamin, Moderate Senate Republicans Fall Off Their Own Cliff.

And he has impressive charts showing just how scarce anything looking like a moderate Republican will be in the next Senate.

Posted in Politics: US | 1 Comment