Courtesy of The Appellate Record:

UCLA Professor Eugene Volokh recently provided some excellent advice that I highly advise following when citing to legal treatises that have been through multiple editions, and that have had different editors over the years:

I ran across this passage (in a generally very well-done brief), which inadvertently highlights an issue that legal writers — students, lawyers, academics, and judges — should keep in mind:

Justice Story likewise explained in his noted Commentaries that any law dispensing with the requirement that jurors “must unanimously concur in the guilt of the accused before a legal conviction can be had …, may be considered unconstitutional.” 2 Joseph Story, Commentaries on the Constitution § 1779 n.2 (1891) (emphasis in original).

Justice Story did indeed describe the criminal jury trial as requiring unanimity (though in a slightly less helpful passage). But this item was not in Story’s original treatise; rather, I found it in Thomas Cooley’s fourth (1873) edition of the Commentaries. (Of course, Cooley himself was an influential constitutional commentator.)

But then I looked more closely, and realized that Cooley didn’t write this passage, though he endorsed it. The original appears in the 1858 edition, and was likely added by the editor of that edition, Edmund H. Bennett. So Story didn’t “explain[]” it, and I wouldn’t even say that Cooley explained it (though he did not edit out Bennett’s earlier explanation). The quote does have some authority, both because Bennett was a lawyer of some note (though most of his accomplishments came after the 1858 edition) and because the passage in an edition of Story’s highly influential treatise — even when the passage was not Story’s own — might have helped influence legal thinking during the mid-1800s, including when the Fourteenth Amendment was ratified. But the passage shouldn’t be credited to Story, and any credit to Cooley has to be properly limited.

This is generally quite common in influential legal treatises; they go through many editions, and later editions include material written by people other than the original author. That’s fine when you’re just citing the work for its own value as authority. But if you’re citing the work because of the authoritative status of the person who wrote it, you need to make sure that the quoted material was indeed written by that person and not by a later editor (or even by an earlier editor).

Moral of the story: cite check carefully. Always.

Justice Scalia and Bryan Garner gave an interview recently to the ABA Journal in which they discuss their new book, “Making Your Case: The Art of Persuading Judges,” and advocacy, both written and oral. You can view the full transcript of the interview on the ABA Journal’s website via this link. Regardless of whether you agree with Justice Scalia’s judicial philosophy or not, he is perhaps one of the finest legal writers of this generation, or any other, and his thoughts on effective advocacy are compelling. I highly recommend that you read both the ABA Journal interview and “Persuading Judges.”

Courtesy of Howard Bashman at How Appealing, the most recent issue of the Seventh Circuit Court of Appeals Bar Association’s journal, “Circuit Rider” is available at this link. The issue contains a very interesting piece on legal writing in which the author urges brief writers (and others) to adopt what Judges Posner and Easterbrook – two masterful writers, regardless of how you might view their jurisprudential philosophies – describe as the “impure” style of writing. I highly commend the article, and The Circuit Rider, to your attention.

In a recent opinion, Seventh Circuit Judge Richard Posner, who some describe as perhaps the greatest living appellate judge (a claim with which I would not necessarily disagree), offered some useful advice on the subject of brief writing. Specifically, he addressed the dense legalese that littered the briefs that had been submitted in a complex reinsurance case, and offered some advice that all attorneys ought to take to take to heart:

A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

(Hat tip to the Wall Street Journal’s Law Blog)