Cross: Bryan Garner, The Last Word On Legal Writing
October 19, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Black’s Law Dictionary editor in chief, Justice Antonin Scalia’s co-author and president of LawProse, Bryan Garner (with very careful attention to use of the past plural imperfect).
Q. You’re a Texas guy, despite a brief childhood misadventure in California, and attended the University of Texas at Austin for undergrad and law school. Coming off a senior thesis with such pedestrian interests as “Latin-Saxon Hybrids in Shakespeare and the Bible” and the ever-popular “Shakespeare’s Latinate Neologisms,” it might surprise some that you would end up going to law school. What turned you toward law school?
A. My high-school plan had been to go to law school. But then I succeeded at English literature and Shakespearean linguistics to such a degree that I flirted with getting a Ph.D. in English and pursuing lexicography. I was being prodded by my English professors. Thank goodness I received neither a Rhodes Scholarship nor a Marshall Scholarship: although I was the U.T. nominee for both, I didn’t make it to England on either of those scholarships. (I received lesser scholarships to study for short stints during two summers at Oxford.) So I reverted to my original plan—goaded in part by a fiancée (my first wife) who swore she didn’t want to be married to an English professor. I made the decision to pursue law on December 8, 1980, the day I received a rejection letter from the Rhodes committee (and, coincidentally, the day John Lennon, my teenage hero, was assassinated).
What inspired you about the law? Any particular niche of law you hoped to practice? Why not an academic?
I was inspired by a strange aspect of the law. Not social justice. Not righting wrongs. These were important, no doubt. But I was inspired by the idea that law was the highest calling for the professional rhetorician.
What was the best barbecue in Austin?
The Iron Works (still there). But the best in the world is in Lockhart, not far from Austin. It’s Kreuz’s Barbecue. I learned about it while clerking for an Austin firm.
Q. During law school at UT, you were a law review editor, which seems almost a given. But did you have a particular legal focus? Were there practice areas that caught your fancy? A nice criminal defense lawyer, perhaps? Had your interest in language remained your foremost focus? How did you take reading casebooks, decision after decision? Did you cringe your way through law school? Did you decide to make it your life’s work to make sure no lawyer should have to suffer such awful prose again?
A. My focus was on legal language from the beginning. In a way, I decided to become an English professor anyway. During my first week of law school, I undertook my first book, and I named it: A Dictionary of Modern Legal Usage. I constantly made linguistic notes on every case I had to read. These notecards became the basis for the book. I had 3,500 of these by the time I graduated.
Q. After law school, you clerked for Judge Thomas M. Reavley at the Fifth Circuit, then worked for a Dallas firm. Did you gain any interest in litigating? What sort of work were you doing in Dallas? Did you find the practice of law boring, unappealing? Did you consider other practice areas? You started teaching at UT in 1988. Was that it, the end of practicing law? Was academia where you wanted to be, or was that by default?
A. The year with Judge Reavley was important and formative. He was a tremendous role model, and I think of him daily as I make decisions. My three years at Carrington Coleman were also important: I tried two cases first chair during my first year, and I argued two appeals. I won all four. That was a great experience, and I became the poster child at the firm for the kind of experience a new associate could get. They put me on the hiring committee, and I had a vote even on bringing in lateral partners. I loved the firm.
But when my Dictionary of Modern Legal Usage appeared in 1987, some relationships collapsed. A senior associate actually suggested that my royalties should be forfeited to the firm as a “firm opportunity.” And some younger partners seemed to think I was getting too big for my britches—even though I studiously avoided discussing my literary endeavors. When U.T. gave me the opportunity to return as a faculty member, with a raise, I accepted. That’s when I discovered how much I love teaching.
Q. In 1995, you became editor in chief of Black’s Law Dictionary, perhaps the most iconic of all law books. That’s a pretty cool gig. How did that happen?
A. I’m not quite sure. The West people didn’t even know I’d written A Dictionary of Modern Legal Usage or that I’d been editor of The Oxford Law Dictionary, a project that had been abandoned after three years by U.T. and Oxford University Press. I had a noncompetition agreement with Oxford that forbade me to write a law dictionary through 1994, and in 1995 West wrote to me inviting me to become editor of Black’s. I think that letter came at the suggestion of my mentor, Charles Alan Wright of U.T., but he never quite confirmed that for me. I’m pretty sure that he suggested this move to West.
I was a reluctant recruit. I told West that I was going to produce Garner’s Law Dictionary and soon put paid to Black’s. I said I would be embarrassed to associate myself with Black’s unless they’d let me rewrite the book completely. In the end, they agreed to that stipulation.
Given that law lingo has been accumulated over hundreds of years, what was the job like? Was there an agenda, such as updating an archaic tome, or were Black’s traditional definitions solid?
The problem was that the old tome was lexicographically naïve: adjectives were defined as if they were nouns, and nouns as if they were adjectives. Verbs were mangled throughout. I had to sort things out as a lexicographer first, to make sure that the principle of substitutability was met: a definition had to be substitutable in sentences for the word being defined. In the 7th edition, this was a humongous task. Then senses had to be separated and numbered in a logical pattern. In the 8th and 9th editions, this work was continued and perfected, and thousands of new entries were added. By the 10th edition (2014), the dictionary reached full maturity. Curious readers should sit down with a 6th edition and a 10th edition and look over any span of entries: you’ll understand why I prefer to say that I wrote Black’s Law Dictionary, not that I “edited” it. Of course, I had lots of help from staffers and from teams of scholars.
How does one start to change the definitions of legal words and concepts? How much pressure did you feel being in charge of this icon? Did you ever decide not to screw with tradition for fear it would come back to bite you?
From the beginning, my working assumption was that every definition in Black’s was presumptively wrong unless I could confirm its correctness in legal literature. That was a healthy way of approaching the project. I can remember a screwy definition of prevailing plaintiff in the 6th edition—absolutely incomprehensible. I gave it a good, straightforward definition. Later I learned that the 6th edition had been trying to grapple with a circuit split and to reconcile incompatible definitions. Chief Justice Rehnquist quoted my definition in the 7th edition as the primary source for his resolution of the circuit split. So it became law. Justice Ginsburg objected that never before had Black’s Law Dictionary been the primary source for a Supreme Court decision.
Q. You co-authored your first book with Justice Antonin Scalia, Making Your Case: The Art of Persuading Judge, published in 2008. How did it feel having to carry Justice Scalia? What was your role in the book?
A. “Carry” Justice Scalia? That was a 50/50 book. We both wrote the same sections at the same time, not knowing what the other might say. Then I’d meld the two versions into a single essay. He said, early on, that I was his coauthor, not his clerk. I appreciated that. He declared that we were equals—for purposes of the book only. Apart from writing my 50%, my role was constantly goading him to write about things he didn’t want to write about!
Wasn’t this a bit more about Justice Scalia’s preferred methods of persuasion than persuasion in general? In retrospect, are you sure that you’re in a position to give female lawyers fashion advice?
No! This wasn’t just about Justice Scalia’s preferred methods. This was our distillation of what all the great writers on persuasion have said over millennia. It was a lot of work. He took assignments from me. He’d read whatever I asked him to, from Aristotle to Cicero to Quintilian. Our disagreements are to be found in our debates: look in the index under “Scalia-Garner debates.” Otherwise, we were in full agreement (as we normally were about most things—except that I’m more libertarian). As for fashion advice for women lawyers, I feel certain we consulted with Justice Ginsburg before writing that passage.
Q. You did a second book with Justice Scalia, published 2012, called Reading Law: The Interpretation of Legal Texts. Given Justice Scalia’s textualist (not just originalist as the book makes clear) view of statutory interpretation, that was quite a controversial book. Are you also a textualist?
A. Absolutely! A controversial book? It’s among the most widely cited books in appellate opinions today. It’s largely uncontroversial as a matter of statutory interpretation—except among those who want judges to have full discretion to ignore or supplement statutory texts. Everyone is a textualist to one degree or another; everyone looks at the text. Some then depart from it rather quickly. But to the extent you’re trying to derive meaning from a text, the book can be helpful. Textualism gets controversial especially in constitutional cases. One prevailing view is that constitutional interpretation isn’t a matter of construing a text at all. My coauthor and I rejected that view.
There was, to be fair, significant overlap and conflict of various canons of interpretation. Much like platitudes, there’s one for every purpose. Did that concern you? Did Justice Scalia see any, ahem, inherent conflicts in some of his positions? In looking to the original meanings of words used in statutes, was it fair to interpret old language in modern context? And why did he hate legislative history so much? Did you share his cynicism about politicians bloviating? Is there nothing worthwhile to be gleaned from legislative history?
I stand by the book 100%. In fact, I think I’m prouder of Reading Law than any other book I’ve written, apart from Garner’s Modern English Usage. Read what we say in Reading Law about legislative history. And we explicitly denounce (with reasons) the idea that canons are like contradictory platitudes. That was a falsity propagated by Karl Llewellyn in a specious article.
Q. You’re a zealous advocate of plain language in the law, which seems quite odd given your position with Black’s Law Dictionary, the mother lode of archaic legal words. You call plain English “robust and direct—the opposite of gaudy, pretentious language.” Isn’t there a benefit to using boilerplate legalisms to cover, well, the required verbiage that no one really cares about? What makes Latin phrases, the ones we all understand well, pretentious? What’s the benefit to reinventing the wheel? Justice Scalia was noted for his “robust and direct” writing, but many argued it was too harsh. Was that what you meant, or did Justice Scalia take it too far?
A. I’m a plain-language advocate, and yet I’ve added thousands of Latinisms to Black’s Law Dictionary. The point of lexicography is that readers who encounter an abstruse term ought to be able to find out what it means. I had all the Latin maxims in Black’s retranslated by Roman-law and medieval scholars. That was an important step because there were hundreds of errors and mistranslations in earlier editions. What makes Latin pretentious? You’d rather say ceteris paribus than other things being equal? You’d rather say inter alia than among other things? I have no problem with i.e. and e.g., but many people confuse the two. I don’t write for those people.
As for Justice Scalia, he was hard-hitting—even toward me. But I don’t criticize my beloved coauthor. We loved each other, and this has been a hard year for me, with his untimely death.
Q. As lawyers, we’re expected to be competent wordsmiths, but experience suggests we’re not particularly good at original writing. We’re unclear. We’re verbose. We’re horribly redundant. Do lawyers write better when they stop trying too hard to sound lawyerly? Of all our writing sins, what do we tend to do worst? And why do we do it? Then again, are we any more clear and interesting using “plain English” that legalese? Is unclear writing, whether in plain language or lawyer jargon, still unclear?
A. Look, writing well is hard—as hard as playing scratch golf or playing a musical instrument really well. So why should it be surprising that lawyers write at the level of 17-handicappers or 10th-chair high-school clarinetists? Those clarinetists have six years of practice and playing under their belts, yet they’re not very good. I’m trying to help lawyers who want the equivalent of a PGA Tour card or an acceptance at Juilliard. It’s not for everyone. It’s only for the truly ambitious—and those who have enough humility to recognize how much room for improvement they have.
Every good writer grapples with the feeling that the material is simply intractable—that there is no clear way of presenting the material. The good writer overcomes this frustration.
Q. Chief Justice Earl Warren’s opinion in Brown v. Board of Ed was ten pages. Opinions today can easily run over a hundred pages in cases of relative insignificance? What the hell happened? Have the justices become uncontrollably verbose? Is that that much more to say that they can no longer just get to the point? Some (me, for example) have suggested that despite this obscene length, opinions have become less comprehensible, less useful. Is there an inverse correlation between the length of an opinion and its clarity? Has anyone told the justice this? Can anything be done about this, or are we saddled in perpetuity with reading prolix decisions that become increasingly confusing page after page?
A. I once told Justice Scalia that I was going to rewrite a Supreme Court opinion with a 90% saving in words, and much more clearly. He asked me not to do it. He said I would embarrass the Court. So I won’t do it.
Q. You’ve been the President of LawProse since 1990, but have really served as the Patron Saint of Legal Writing for the past generation. You done remarkable things, like interviewing Supreme Court justices. What do you do for an encore? Have you ever considered trying your theory in the courtroom? Would you want to sit on a bench and do the job of the folks you’ve interviewed? While you’ve dedicated your career to making lawyers better communicators, has that happened? The Green Bag called you the “leading authority on good legal writing,” but isn’t that a lot like being the best looking guy in the leper colony? How long can you keep proselytizing good writing?
A. People were asking me what I’d do for an encore in 1996. I’m glad I kept plugging away with LawProse and with book-writing. I’ve been privileged to have extraordinary experiences around the globe. I love what I do, and I plan to keep doing it. So far, it’s made me very happy. I hope things stay that way for a long while. But as someone once said, every story ultimately has an unhappy ending. I want to postpone that for as long as I can. My role model on this score is Jacques Barzun. If I can be puttering around my library at 102, still writing dictionaries and updating other books, I’ll be supremely happy.