Wayne Schiess, author of LegalWriting.net posted a response to Justice Scalia’s “I Do Not Believe That Legal Writing Exists” speech.
Scalia himself said that legal writers must master the substantive subject. That alone is enough to make legal writing a “separate genre of writing” and a reason legal writing exists.What’s more, law is a discrete discourse community: a group in which members communicate with each other in ways unique to the group. Legal writers, then, must master that discourse: the biggies, like how to use legal authorities, how to construct a legal analysis, and how to construct a legal argument. Plus a host of other legal-writing conventions like legal citation and legal vocabulary.
I’ll bet few, if any, other genres require writers to rely on a convention like the common-law rule of precedent. And although other genres might use rule-based analysis, analogical analysis, and policy analysis, legal writing uses all three and more.
Does any other genre require writers to deal with crucial human issue of life, liberty, and property in such complex substantive areas?
Finally, don’t forget that a true master of legal writing would be able to write objective legal analysis, persuasive legal analysis, and binding legal text (legal drafting).
So there.
Legal writing isn’t a separate genre the way poetry and prose are separate–the way fiction and nonfiction are. The distinctions between legal writing and other nonfiction prose are more subtle. But they’re there and, taken together, they make legal writing its own genre.
So sure, Justice Scalia, I’ll agree that legal writing ought to be more like other professional writing–other nonfiction prose. I’ve said so many times. But I can’t deny the uniqueness of legal writing.
SunTzu, a frequent commenter here, brought it to my attention. Thanks.
Mr. Schiess has some follow up posts. You can read them here and here.