Judge Posner vs. Professor Dorf on Legal Writing

In the Autumn issue of the Journal of Legal Education, Professor Michael Dorf reviews Judge Richard Posner’s Divergent Paths. And Judge Posner responds. Judge Posner’s book, Professor Dorf’s review, and Judge Posner’s response are all worth reading in full, but I’d like to highlight a few parts that might be of particular interest to legal writing professors.

Judge Posner’s book is highly critical of legal writing professors, who he claims teach law students to write in a jargon-filled, Latin-peppered, opaque style. This was news to me, and contrary to the way I teach, the way my colleagues at UW School of Law teach, every legal writing text I’ve ever read, and every discussion I’ve had with other legal writing instructors. I’ve yet to meet someone who tells their students to end a memo with quod erat demonstrandum.

Here’s Professor Dorf:

In some respects, Posner is badly out of touch with how legal education actually proceeds. His views about legal writing instruction are especially misinformed. Posner asserts that first-year required legal writing courses teach students to use jargon, which is a calumny. Any survey of legal writing instructors will verify that they teach students not to use jargon . . . .

And in the footnote that accompanies this paragraph, Professor Dorf reports the results of his informal survey of colleagues:

I asked my Cornell Law School colleagues who teach first-year Lawyering (our legal writing course) whether they instruct students to use jargon. They all said no; they teach students to avoid jargon. I also asked whether they know of any reputable legal writing program anywhere that teaches students to use jargon. Again, they all said no.

Professor Dorf also defends the IRAC/CRAC structure against Judge Posner’s criticism:

Posner also dislikes such “mechanical” systems for brief or memorandum writing as “IRAC” . . . and “CRAC” . . . . He is right that student writing that rigidly uses either of these formats lacks elegance, but he misunderstands their purpose. Many students arrive in law school unfamiliar with the logical structure of analytical and persuasive writing. Systems like IRAC and CRAC provide them with a means of compiling the necessary elements of an argument. Once students master these basics, they learn to use the outlining systems implicitly. As they gain confidence, they take poetic license, and their writing begins to flow. Posner is correct that many students and lawyers never become great or even competent writers, but that is not because they have been straitjacketed by IRAC, CRAC, or, more generally, the instruction they receive in legal writing courses.

In response to these points, Judge Posner has this to say about legal writing instructors and jargon:

And although Dorf claims that legal-writing instructors discourage their students from resorting to legal jargon, it would be more accurate to say that some of the instructors try to discourage use of jargon, but judging from the number of jargon-ridden student law-review comments and judicial opinions, the instructors are rarely successful.

As Professor Dorf points out, this is a drastic change from Judge Posner’s initial claim that legal writing professors encouraged jargon.

And on IRAC/CRAC, Judge Posner is “appalled”:

I am appalled by his endorsement of the writing “systems,” taught in some law schools, called IRAC . . . and CRAC . . . . Those are straitjackets.

I teach my students IRAC/CRAC/CREAC/whatever-AC, largely for the reasons described by Professor Dorf. I’ve noticed that judicial opinions sometimes diverge from the IRAC format in parts, but that’s because an opinion can slowly roll out a court’s reasoning in a series of back-and-forth steps. People are expected to closely read and analyze a judicial opinion. It’s okay if the reader needs to work through the entire opinion to really understand what is going on.

Not so for a memo or email or brief. The readers in those instances want a clear, easy-to-understand work product, not a meandering journey through the writer’s decisionmaking process.

As an example, I often provide my students with sample IRAC-formatted emails so they can get a sense of how the structure works. The examples are based on the “law” we discuss during the first week of class: a fictitious Washington version of the “No Vehicles in the Park” statute. Each of the example emails starts with the writer’s answer, then fully sets forth the relevant legal materials, and then applies those materials to the facts. It’s a nice and simple IRAC.

But in the spirit of Judge Posner’s critique, I’ve taken the liberty of mixing up one of the emails–freeing it from the straightjacket of the IRAC! So here, without further delay, is a sample non-IRAC that bounces between rules, conclusions, and applications. I’m sure all the IRAC-haters out there will love it.

This case is about RCW 2.34.567. But we’ll get to that later, because what this case is really about is Mr. Singh, who was arrested for driving his car in the park. He likely violated the statute, because cases interpreting the statute limit the exception to authorized emergency vehicles.

“What exception?” you may ask? I’ll tell you. In State v. Edwards, the Court of Appeals created a common-law exception to the statute for authorized ambulance drivers. Mr. Singh was not driving an ambulance when he drove into the park to help his daughter, so the exception likely doesn’t apply to him. However, State v. Edwards also included language about public safety and the ambulance driver’s duty to help others. So perhaps Mr. Singh’s duty to help his daughter could form the basis of a similar exception. Maybe the exception would apply. But on the other hand, the Edwards Court relied on an ambulance driver’s training. Mr. Singh didn’t have any specialized training. So the exception probably doesn’t apply after all.

If the exception doesn’t apply, then the statute itself applies. Mr. Singh drove his car into the park, so he violated the statute, even though he was driving into the park to get an epi pen to his daughter, who had been stung by a bee. That’s because the statute, RCW 2.34.567, prohibits the operation of vehicles in the park. And the only exception is Edwards, which I discussed above.

Excellent! A+


2 thoughts on “Judge Posner vs. Professor Dorf on Legal Writing

    • Echoing Prof. Dorf’s view, the funny thing is that I think Judge Posner’s opinions are written in an extremely clear style. But when he talks about how to teach people to write, that’s where he and I part ways.

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