Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, May 7, 2022

Why Does Justice Kagan's Writing Work So Well?

Let’s break down a random snippet of Justice Kagan's writing. She's one of the best writers on any court--in large part because of how much effort she puts into every opinion. Anyone can learn a lot by reflecting on just about any document she pens.  

Legal writers often use excessive definitions, filling their document with “Hereinafter referred to as...” But good legal writers use shorthands and avoid drowning readers with defined terms unless they are truly needed to avoid confusion.

In the following snippet, Justice Kagan uses “choice-of-law rule” throughout—a simple, concrete shorthand. And you’ll notice no need to define a shorthand for this piece of art. The reader isn’t confused when the Justice later uses the first three words. 

“The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. ...

At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain (shown in this opinion’s appendix). ... The post-war search for Rue Saint-Honoré was a long one.”

Some always-great writing techniques in this next snippet. Look for the following: 

1.    Starting sentences with familiar words or concepts.

2.    Using active verbs and vivid glue words (“brought [the suit] . . . within...”)

3.    Explaining key concepts in simple terms—not just for lay readers, but to remind readers in inescapable language what familiar legal terms mean.

4.    Varied punctuation (em dashes to emphasize; semicolons to compare or contrast ideas).

5.    Novel nouns or flourishes that won’t sound overused (have you ever mentioned a “minimally reasoned precedent”? But it works!): 

“The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving ‘rights in property taken in violation of international law.’ § 1605(a)(3). At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception.” ....

“Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. Yet there another issue lurked. For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option.”

Dissecting great legal writing (or writing generally) is one of the simplest ways we can boost our own craft. So try picking up your favorite author and get to work!

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