Gluck & Schultz Bressman: Statutory Interpretation from the Inside: An Empirical Study of Congressional Drafting

Professor Abbe R. Gluck of Yale Law School and Associate Dean Lisa Schultz Bressman of Vanderbilt Law School have posted Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, forthcoming in Stanford Law Review.

Here is the abstract:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the field’s foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

HT @rickhasen

Jondet on Using Zotero for Legal Research and Writing

Dr. Nicolas Jondet of University of Strathclyde School of Law has posted slides of his presentation entitled Entrepôts institutionnels et respect des références internationales de citation numérique, given last week at Journées européennes d’informatique 2012 = European Legal e-Access Conference.

The presentation describes the use of the open source citation management software Zotero for legal research and writing.

For more on Zotero and legal citation, please see Professor Frank Bennett’s site CitationStylist and the posts about Zotero at Legal Informatics Blog.

HT @nicolasjondet

Judge Sciarrino Makes Us LOL

Here is the parodic, hashtag-laden opening paragraph of Judge Matthew Sciarrino’s decision this week in People v. Malcolm Harris, 2011NY080152, NYLJ 1202549877835 at *1 (Crim., NY, Decided April 20, 2012), that has everyone LOLing:

The New York County District Attorney’s Office seeks to obtain the #Twitter records of @destructuremal using a #subpoena. The defendant is alleged to have participated in a #OWS protest march on October 1, 2011. The defendant, Malcolm Harris, along with several hundred other protesters, were charged with Disorderly Conduct (P.L. §240.20[5]) after allegedly marching on to the roadway of the Brooklyn Bridge. The defendant moved to #quash that subpoena. That motion is #denied.

(footnote omitted).

Click here for the full text of the decision.

This jurist also appears to have played a role in an early episode exemplifying legal problems arising from social media. Click here to see other examples of legal problems arising from social media.

HT Joseph Ax.

Rideout on Voice, Self, & Persona in Legal Writing

Professor J. Christopher Rideout of the Seattle University School of Law, has published Voice, Self, and Persona in Legal Writing, 15 Legal Writing: Journal of the Legal Writing Institute 67-107 (2009) (Issue No. 1). Here is a summary:

In my view, sorting out the complexity of voice—and discussing voice in legal prose—requires a rethinking of who the writer is in legal discourse and, importantly, how that writer is represented in legal prose. It becomes a question not of self expression, but of self-representation and persona. In this Article, I will first look at discussions of voice in writing—beginning with what we might mean by voice, then with discussion of personal voice, and then of professional voice. I then offer another model for looking at voice — a discoursal model — and use that model to reconstruct the idea of a professional voice in the law, using the idea of discoursal identities, or persona. Finally, I will discuss the implications of this for those who write in the law and for us—those who teach in legal writing programs.

Berger on Studying and Teaching “Law as Rhetoric”

Professor Linda L. Berger of the Mercer University School of Law, has published Studying and Teaching “Law as Rhetoric”, 16 Legal Writing: Journal of the Legal Writing Institute 3-64 (2010) (Issue No. 1). Here is a summary:

Because of rhetoric’s complexity and fragmentation, I found it impossible to frame a single rhetorical approach that would be most effective in a law school class. Instead, my upper-level elective course in Law & Rhetoric surveys a number of classical and contemporary rhetorical theories that seem particularly appropriate for interpreting and composing legal arguments. In developing the learning objectives of the course, I envisioned “rhetoric” as a study (of the effects of texts), a process (for composing texts), and a perspective (for invention in the classical rhetorical sense). While rhetorical study has much in common with literary criticism and interpretation, the course in Law & Rhetoric approaches “rhetoric” not only as a “stance for interpreting,” but also as a “guide for composing” and inventing.

Part I of the Article explores the argument that the study of rhetoric is important to legal education. Part II provides the framework of the Law & Rhetoric course by describing the reading, writing, and oral presentation assignments; this part includes examples of student work. Part III explains the various rhetorical theories and approaches; it also illustrates how these are used by my students to interpret, compose, and invent. Part IV concludes with students’ thoughts about the course. [footnotes omitted]

Flammer on Persuading Judges: An Empirical Analysis of Writing Style, Persuasion & the Use of Plain English

Sean Flammer, Esq., of Scott, Douglass & McConnico L.L.P has published Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 Legal Writing: Journal of the Legal Writing Institute 183-221 (2010) (Issue No. 1). Here is a summary:

In recent decades, academics and some judges have urged the legal community to write in Plain English.

But dooes Plain English work? Does it help litigators persuade judges?

This Article attempts to answer that question. I sent surveys and writing samples to 800 judges across the country asking which of the samples was most persuasive. The survey also asked about the judges‘ gender, age, years of experience in law, years on the bench, and whether the judges sat in rural or urban districts.

Part I of this Article discusses what Plain English is and what it is not. Part II discusses the existing empirical data relating to Plain English. Part III discusses the methodology of the survey, and Part IV discusses the survey‘s results. Finally, Part V concludes and addresses how this study should influence future writing-style decision-making. [footnotes omitted]

Call for Participation: Clinical Law Review Writing Workshop: Clinical Writers’ Workshop 2010

[UPDATE: The registration and scholarship application deadline for the workshop is 2 June 2010. The first draft submission deadline is 1 September 2010. The workshop is being called Clinical Writers' Workshop. Click here for the updated call for participation.]

A writing workshop sponsored by The Clinical Law Review will be held 2-3 October 2010 at New York University School of Law, New York, New York, USA.

For more information, please see the updated call for participation.

Braun on the Citation of Academic Legal Writing by English Courts

Dr. Alexandra Braun of St. John’s College, Oxford University, has published Burying the Living? The Citation of Legal Writings in English Courts, 58 American Journal of Comparative Law 27 (2010). Here is the abstract:

Until recently English judgments were characterized by a dearth of references to academic legal writing. This is often ascribed to the existence of a professional convention preventing judges and counsel from citing living authors. While there is generally no doubt that such a convention did exist, it is not certain whether and to what extent it actually involved and affected legal academics and their role within the English legal system. This Article examines the claims that have been made about the genesis and the nature of the convention and attempts to shed light on the true reasons for its emergence, as well as its impact on the status of legal writing in England and the relationship between judges and legal academics.

AALS 2010

AALS 2010: The 2010 Annual Meeting of the Association of American Law Schools, is being held 6-10 January 2010 in New Orleans, Louisiana, USA. The conference theme is “Transformative Law.” Many of the programs concern legal technology or legal communication.

The conference Website is available here.

The conference program is available here.

The conference events are being tweeted on Twitter at #aals and #aals2010.

Cohen on Client-Centered Legal Rhetoric

Professor Jason K. Cohen of Rutgers School of Law-Camden has published Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, forthcoming in Charlotte Law Review. Here is the abstract:

“This article seeks to slightly shift the landscape of legal writing theory, from one which primarily asks the writer to consider the audience, to one which also incorporates principles of client-centeredness which require the writer to focus equally on the client. Today, legal writing’s model of persuasion communication is almost exclusively a linear theory that focuses on the dialogue between the attorney/writer and the decision-maker/judge. This model is embodied in legal writing’s well-established advice that attorneys must ‘know their audience.’ The roots of this theory are well established: Classical and New Rhetoric Theory have consistently emphasized the audience’s role in persuasive discourse.

“Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

“This article begins first by exploring current theory from legal writing scholarship which focuses on the writer’s need to write for the audience. Although by now, the ‘know your audience’ approach is somewhat ingrained, what may not be well known is that this approach stems historically from rhetorical theories of communication. After establishing the rhetorical connection to audience, and the devices used to write for the audience, the article next explores the development of client-centered lawyering, which traditionally focuses on achieving the greatest client satisfaction, beyond merely winning the case. Inherent in this approach is the dialogue that must occur between practitioner and client. Third, the article proposes application of principles from client-centered theory to legal writing theory, suggesting a shift from relying solely on a ‘know your audience’ approach to now also including a ‘know your client’ approach. The devices that lawyers have been taught regarding audience can also be applied to knowing the client. Finally, the article concludes by examining practical examples of incorporating client-centered principles into advocacy writing.”

HT @Law_Writer.