Vanderbilt Law Review

First Page



The practice of law requires a good amount of original writing,and it is a commonplace today that much of this writing is done rather poorly. Charles Fried, the United States Solicitor General,has implied that much legal writing, especially in appellate briefs,is "turgid and boring."' John Nowak, a Professor of Law at the University of Illinois, has reiterated Fred Rodell's classic complaint that the writing in law reviews lacks both style and substance. More fundamentally, Steven Stark, in his Harvard Law Review comment, has argued that the style and substance of most legal writing are flawed by lawyers' ideological commitments to ritualized notions of authority and legal formalism. Robert Hyland, responding in the Pennsylvania Law Review, has argued that Stark's view is utopian; Hyland claims that the trouble with current legal writing lies instead with the failure of contemporary lawyers to engage in conceptual thinking.

I want to approach legal writing from a different perspective.This perspective focuses on the writing process rather than its products, although what I shall say in this Essay is also relevant to substantive and stylistic concerns. I shall argue that there are two basic dimensions to the writing process: the "instrumental" and"critical" dimensions. Instrumental writing is designed to convey independently conceived ideas in a written form. Critical writing,by contrast, involves the writing process itself as an important source of substantive thought. These dimensions certainly overlap in most writing projects, but attention to the separate dimensions may yield some rich insights into the nature of legal writing.