Monday, May 15, 2006

Persuasion: responses on literary references

Responding to my suggestion that literary references are risky, commenters said--

I worry that some people want to take all the art, the craft, and the fun out of legal writing. What are we telling our young lawyers? It's okay to get a broad liberal education but, for God's sake, keep it to yourselves. Fie on this risk-averse approach to legal expression. Set yourself free. Soar. Sing. Just as long as you are making good legal sense.


I must agree . . . Our "art" is far too staid as it is. I find that my biggest challenge is to engage the judge in the first place. He is often over-worked and bored to tears with the usual fare he is served. Sometimes an ice-breaker is just the thing. If the reference is clear and directly relevant, I see little risk.


I like the literary or historical reference; it must be apt, but that's true of authority as well.

Wayne says--
Excellent points, well made. But I stick to my original advice. Literary references are risky. Not RISKY! Just risky. The standard that the reference must make sense even if the reader isn't familiar with it still stands--for me, anyway. I think the three commenters would probably agree.

Two related points:
  1. Undergraduate education these days is not grounded in the classics of western civilization and hasn't been for a while. Bemoan it if we want, but it's true. I just read a report of reading habits of pre-law students, and they are not reading the classics. By the way, the book most hated among them was The Scarlet Letter. I myself majored in Japanese in college, so I prefer a piece of writing that has more quotations from Basho than Plato.

  2. The yearning for art and craft and fun in legal writing is nice, but I'm more impressed by someone who can make a complicated topic simple than I am by someone who can toss in a Shakespearean reference or a biblical one.

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