THE COMMITTED LEGAL WRITER

Introduction

I. A Deep History of Skepticism

A. A History of Skepticism

B. The Contemporary Concern

II. Fostering Commitment Through Disruption

A. An Existential Crisis

B. Commitment and Writing

C. Lawyer and Fool

III. The Committed Legal Writer in Context

A. The Committed Jurist

B. The Committed Advocate

Conclusion

Deborah S. Gordon^* and Kaitlin O’Donnell^**

It is on the day that we can conceive of a different state of affairs that a new light falls on our troubles and our suffering and that we decide that these are unbearable.

Jean-Paul Sartre¹

The law is once again facing a legitimacy crisis—one brought into full relief during Justice Kavanaugh’s confirmation hearings, wherein the future of the independent judiciary was, if not decimated, at least hotly debated. Though this current crisis may be novel in its precise implications, such crises are not new. Indeed, skepticism concerning the legitimacy of the law and the act of lawyering has been leveled at the profession from its beginnings, both from the outside and from within. Nevertheless, the divisiveness of our current political and social climate has given the issue fresh meaning. How can legal practitioners and participants respond to this crisis without perpetuating a cycle of cynicism? This Article argues for an increased reliance on several skeptics of the law—William Shakespeare and Simone de Beauvoir among them—to propose a model of “committed legal writing.” This Article draws on these classic thinkers to help understand what contemporary legal actors—and legal writers in particular—can do to realign legal practice and reconnect it with law’s human element.

Introduction

If there was any profession Plato hated more than law, it was poetry. In the Republic, for instance, Plato constructs his ideal city, the one most capable of creating a just and happy citizenry, and famously banishes poets­—Homer, in particular—from within its walls.² Poetry is incompatible with the just state, he argues; societies and individuals must be ruled by reason, not by rhetoric.³ According to Plato, to be enthralled by the poetic imagination is to be a slave to emotion.⁴ Freedom, for Plato, is achieved through the careful dissection of the principles underlying our beliefs—not through poetic imagination.⁵

Although “hate” is too strong a word. There is also a deep admiration for the poetic imagination running throughout Plato’s work.⁶ The mere fact that Plato wants all poets expelled points to his respect for the power of the poetic imagination.⁷ In contrast to modern theories of aesthetic “distance,” where the audience is deemed fundamentally separate and detached from the work of art,⁸ Plato contends that “it is in the power of much of the greatest art to command an emotional absorption that is destructive of rational detachment.”⁹ Poetic rhetoric is dangerous precisely because it works upon us and molds our characters in profound and often unappreciated ways.¹⁰

In addition to the poets, there is another type of rhetorician Plato finds troubling: lawyers, known in ancient Athens as “sophists”—teachers of rhetorical persuasion.¹¹ Unlike poets, however, sophists are not treated with distrustful reverence; Plato merely distrusts them.¹² This might be because the original sin of the nascent Athenian legal world was the trial and death of Socrates, Plato’s mentor and friend. Socrates was condemned in an Athenian court for “corrupting the young” a charge resulting from his attempts to teach Athenian citizens to question the status quo.¹³ According to Plato, the “justice” achieved in a courtroom has little to do with truth; it is defined primarily by the skillfulness of an advocate’s ability to persuade.¹⁴ The skilled use of rhetoric gives sophists power over the imaginations of others, and this power becomes suspect to the extent that it is not guided by principles of truth and justice and is used solely as a means for winning arguments.¹⁵ Thus, while sophists are not barred from Plato’s ideal republic, they are constantly tested throughout his dialogues and, as James Boyd White has noted, found wanting.¹⁶

Were Plato alive today, he might be both pleased and stunned by the way the rhetorical arts of poetry and law have developed. Professional poets—far from being the irrational influencers so feared in the Republic—are now largely relegated to ivory towers.¹⁷ The legal profession, on the other hand, has ascended to seats of unfathomable power while, in many ways, seeking to disassociate itself from its rhetorical roots.¹⁸ With the ascent of legal formalism in the nineteenth century,¹⁹ the law was characterized as a science, a system of rules, and judges and lawyers became mediums charged with executing the law’s demands.²⁰ To some formalists, the appeals to passion characterizing the rhetorical enterprise could be eliminated from law entirely, making judging a “mechanical” procedure of deductive (and objective) reasoning.²¹

Legal formalism has long had its skeptics and denouncers,²² and for good reason. As legal scholar Roscoe Pound argued in 1908, a mechanical reliance on formalism often results in the “petrifaction” of the law,²³ noting—in the spirit of Socrates—that once our legal “[c]onceptions are fixed,” their “premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly.”²⁴ And yet, as Pound himself intimated, the attempts of legal formalists to characterize law as a science were intended as a means of strengthening the legitimacy of the legal enterprise: if law was not a science, then it was merely “a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural law.”²⁵ Legal formalism thus reflects one stage in law’s evolution from a rhetorical discipline ruled by passion and caprice to the deliberative, democratic, and collaborative enterprise that most of us want to believe forms the bedrock of a civil and civilized society.

But while the law has certainly evolved since Socrates was condemned in an Athenian courtroom, concerns about the legitimacy of the law and its power to manipulate and be manipulated have by no means disappeared. On October 6, 2018, for instance, Justice Brett Kavanaugh was confirmed to the Supreme Court, amid unprecedented public protest.²⁶ Kavanaugh’s confirmation hearings were mired in sexual assault allegations and accusations of partiality, and the senators registering their confirmation votes struggled to be heard over protestors’ cries of “I do not consent”²⁷ and “We will not forget.”²⁸ During the hearings concerning Dr. Christine Blasey Ford’s sexual assault allegations against Justice Kavanaugh, he railed against the Democratic establishment, arguing that the allegations against him were “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.”²⁹ Outside the Senate walls, people stormed the steps of the Supreme Court itself³⁰—a building that has, since 1949, been off-limits to public protest.³¹ As the crowd began pounding on the Supreme Court doors, the police erected a barricade,³² providing both a physical and a symbolic barrier between the anger and frustration of the people and the reasoned discipline of the rule of law.

The disillusionment and unrest accompanying Justice Kavanaugh’s confirmation³³ reminds us that the legal world, yet again, faces a legitimacy crisis.³⁴ But it is not only this type of major crisis that erodes confidence in the law both from the public and from practitioners; every day, contemporary advocates are faced with more mundane, and yet ever-present, barriers to legal entry. In addition to navigating the deep-seated beliefs of judges, advocates often face procedural machinations that keep their clients out of court, justiciability doctrines that prevent courts from reaching the merits of a case, and a myriad of other legal mechanisms that keep disputes from being heard. While some uses of these mechanisms no doubt further the ends of justice and dispute resolution, others raise the fear—shared by Plato, the formalists, and others—that legal results may be driven less by rational legal principles, and more by the idiosyncratic disposition of the decision maker.³⁵ In the end, many of these fears concerning the legitimacy of the law are fears about power: that those with the power to decide someone else’s fate will use that power unwisely or unjustly, resulting in a corrosive effect on our legal system.³⁶

This Article does not attempt to solve these problems of power and legitimacy, but rather begins from the premise that the problems are, in a sense, unsolvable. As long as human beings are responsible for creating, interpreting, and implementing the law, our legal systems are likely to remain susceptible to misuses of power and their accompanying legitimacy concerns. But today, as politicians continue to try to line the federal bench with party stalwarts,³⁷ public cynicism concerning the neutrality of our arbiters has reached uncomfortable heights.³⁸ This cynicism, resulting from the feeling that sides were chosen before the dispute even began, inevitably affects legal professionals as well, and can result in deep feelings of powerlessness.

Responding to this concern, this Article asks a more modest question: How might those of us in the legal profession respond to concerns about power and illegitimacy without giving up hope and descending into cynicism? More specifically, is there a role for legal writers to play in these moments? It argues that we can once again look to the profession’s rhetorical roots, and it relies on and seeks to refashion past thinkers who have themselves confronted skepticism, Simone de Beauvoir, Jean-Paul Sartre, and William Shakespeare among them, to explore a model of “committed” legal writing—an approach to legal writing that attempts not only to disrupt static modes of legal reasoning, but also to restore a sense of commitment to legal practice more generally.

Part I explores in greater detail the problems fueling many skeptical accounts of the law, relying on ancient, literary, and contemporary examples to develop what we see as the concern. Part II draws on examples from philosophy and literature to explore how philosophers and poets have suggested using writing to combat illegitimacy, cynicism, and even despair. It begins by discussing the existentialist philosophy of Simone de Beauvoir and Jean-Paul Sartre—particularly their notion of “committed literature”—to offer an understanding of the writer’s role; this paradigm’s emphasis on voice, identification, and freedom offers a helpful tool for approaching the task of legal writing, most notably as an antidote to illegitimacy and immobilizing skepticism. Part II then looks to Shakespeare—a “committed”³⁹ writer himself—using examples from several of his plays,⁴⁰ including King Lear and Measure for Measure, to theorize about what we might mean by a committed legal writer. Part III examines how committed legal writing might work in context by considering examples of “committed” advocates and jurists whose work helps disrupt their readers’ complacency and offer an alternative, arguably more humane solution to the legal issues at stake.

I. A Deep History of Skepticism

Tracing the contours of the law’s contemporary legitimacy crisis is difficult, not merely because the crisis is complex and multifaceted,⁴¹ but because we are living within it. Courts, advocates, and litigants are still finding the words to describe—and legal theories to address—our current moment.⁴² We do not have the benefit of hindsight. Still, we can look to the past because in some sense the legitimacy concerns we face today are the same concerns that have plagued the legal profession from its beginning, namely, power and its abuse.⁴³ The following sections explore instances of ancient and historical skepticism toward the use of power in the legal profession to help frame some of our contemporary concerns.

A. A History of Skepticism

One of the hallmarks of our legal tradition is the availability of an impartial forum to settle the merits of our disputes.⁴⁴ The impartiality of the legal decision maker⁴⁵ is essential to the legitimacy of the law, for obvious reason: if the results of a legal dispute are determined not by its merits, but by the preferences of the decision maker, the practice of law becomes nothing more than the implementation of “magisterial caprice.”⁴⁶ Nevertheless, the goal of impartiality has perhaps been betrayed as often in our history as it has been achieved,⁴⁷ and the fear of our legal decision makers being swayed by prejudice or self-interest has fueled centuries of skepticism toward the legal profession more generally. Indeed, Plato—one of many chroniclers of ancient Greece’s nascent legal system—was particularly skeptical of lawyers, or, to be more exact and less anachronistic, their early iteration: the ancient Greek sophists and orators.⁴⁸

Skepticism concerning the rhetorical nature of the legal profession has been intertwined with the development of the law. While the law would not become an actual “profession” until the reign of Roman Emperor Claudius,⁴⁹ contemporary advocacy still resembles in part the practice of ancient Greek oratory, in which individual litigants (or a trained orator, appearing free of charge as a “friend” on the litigant’s behalf⁵⁰) would attempt to persuade a jury to rule in the litigant’s favor in any given case.⁵¹ Although Athenian law proscribed paying an advocate to appear on one’s behalf,⁵² with the development of the Greek alphabet a new vocation emerged: logography, or speechwriting.⁵³ Familiar with the law and trained in rhetorical persuasion, logographers would write speeches for litigants for a fee,⁵⁴ and the litigants would then memorize those speeches and recite them word for word at their trials.⁵⁵ As classicist Michael Gagarin has noted:

When success or failure depended entirely on a single speech, the ability to speak well must have been a crucial factor in gaining a favorable verdict, and it is not surprising that the help of a logographer was highly valued. And because of this, some have argued that Athenian law was nothing but rhetoric—the more skillful speaker, or more skillful logographer, would win the case regardless of guilt or innocence.⁵⁶

Though Gagarin and others have gone on to describe the ways in which the sources of Athenian law did in fact restrain the power of rhetoric,⁵⁷ this dichotomy between rhetoric and the law raises a legitimacy concern still relevant to our contemporary legal profession—that our legal conclusions are based on nothing more than the skillfulness of an advocate’s ability to persuade, or worse, the whimsy or caprice of a jury or judge.⁵⁸ This was certainly one of Plato’s concerns; he spends many of his dialogues discussing the inadequacies of the sophists, a brand of ancient Greek educator who focused primarily on teaching the rhetorical art of persuasion.⁵⁹ He contrasts the rhetorician’s ability to manipulate the emotions of a listener with the philosopher, who appeals to reason and attempts to ascertain truth, rather than merely win an argument.⁶⁰

Not only was the teaching of sophistry in conflict with the nascent subject of philosophy—which was concerned, according to Plato, with reason rather than rhetoric—but sophistry was also responsible, to some extent, for the death of Plato’s great friend and mentor, Socrates. In 399 B.C.E., Socrates was condemned, at the age of seventy, to death in an Athenian court.⁶¹ He was charged with “corrupting the young” and “not believing in the gods in whom the city believes,”⁶² offenses employed in various forms throughout our legal history to punish those who fail to conform with the status quo. Indeed, Socrates was one of many ancient Athenian citizens brought to court on similar charges; 399 B.C.E. was marked by “a wave of religious fundamentalism that brought with it a steep rise in the number of impiety cases in Athenian courts.”⁶³

The charges against Socrates were brought by Meletus, the son of a poet, who then served as “both plaintiff and prosecutor in Socrates’ case.”⁶⁴ He, along with two other orators, Anytus, the son of a sophist, and Lycon, argued that Socrates deserved death for teaching his students to revere reason over the Greek gods.⁶⁵ Socrates responded with a speech on the nature of wisdom, tearing apart the premises and conclusions of the orators line by line.⁶⁶ But it was not enough: the jury sided with the orators, finding Socrates guilty of both corruption and atheism.⁶⁷ Socrates’s concerns with jury verdicts, as relayed by Plato and expressed to various companions both before and after the trial, echo Pound’s concerns about formalism.⁶⁸ As philosopher Debra Nails recounts in her discussion of Plato’s Theaetetus,

By the strict letter of the law, Socrates [was] guilty of not believing in the vengeful Olympian gods of the Athenians and the poets, thus his jury is persuaded to a true judgment by the orator Lycon and the skilled litigant Anytus, if not by the feckless Meletus. But the result is legalistic justice, not justice itself; it reflects a correct judgment, but not knowledge.⁶⁹

While the court did give Socrates the option of avoiding death, Socrates refused to do so, and drank hemlock soon after the trial in the company of his friends and students.⁷⁰

Our legal systems have advanced in several respects from the ancient Greek trial. Indeed, the process of Greek justice (or lack thereof) was refined in the ancient Roman system to impose greater limitations on the use of legal power. While the system certainly still tolerated “appeals to the passions, prejudice or emotions,”⁷¹ the Romans allowed for legal professionals—lawyers and judges—with expertise in the legal issues at stake, and would come in later years to develop a process of appeal.⁷² Still, the death of Socrates serves as a reminder of a threat that continues to plague the modern legal profession, namely, the fear that law rests not on reason and the pursuit of impartial justice but is instead merely a guise for power—the power of words, of juries, of jurists.

A later example is similarly illustrative. Measure for Measure was the last of William Shakespeare’s comedies.⁷³ Written sometime around 1604,⁷⁴ the play tells the story of a fictionalized Vienna gone to seed. The Duke, the city’s ruler, has stopped enforcing the city’s laws, and now the community does whatever it wants, unhampered by the threat of punitive consequences.⁷⁵ As the Duke himself admits, the laws of the city have become “more mocked than feared,” and “[l]iberty plucks Justice by the nose.”⁷⁶

With a plan to fix his lawless city, the Duke absconds (or at least pretends to do so), leaving his deputy Angelo to rule in his place.⁷⁷ Angelo accepts the role, determined “not [to] make a scarecrow of the law.”⁷⁸ To this end, Angelo sentences Claudio—by all appearances a relatively upstanding young citizen—to death under an obscure statute criminalizing sex out of wedlock.⁷⁹ Though Claudio’s sister Isabella undertakes a fervent mission to persuade Angelo that the sentence is unjust, Angelo does not waver.⁸⁰ For Angelo, it is not he who has condemned Claudio to die, but rather the law itself. Thus, when Isabella visits Angelo to ask and then beg him to take mercy on her brother, he responds: “It is the law, not I, condemn your brother. / Were he my kinsman, brother, or my son, / It should be thus with him; he must die tomorrow.”⁸¹ The rule of law must be enforced, and “[Claudio] must die.”⁸²

In the character of Angelo, Shakespeare echoes Plato’s concerns about the legitimacy of the legal profession. Isabella diagnoses the issue in their first meeting:

But man, proud man,

Dressed in a little brief authority,

Most ignorant of what he’s most assured;

His glassy essence, like an angry ape,

Plays such fantastic tricks before high heaven,

As make the angels weep; who, with our spleens,

Would all themselves laugh mortal.⁸³

Though Angelo professes to believe only in the rule of law, his failure to recognize the unique exigencies of Claudio’s situation reveals to Isabella the depth of his arrogance: while Angelo believes himself to be implementing justice, he fails to understand what “justice” truly means. For Isabella, the fundamental purpose of the legal system is not only to resolve disputes, but to do so in a way that recognizes and deals appropriately with the unique exigencies presented by the litigants—a purpose Angelo, blinded by power and the “rule of law,” is incapable of understanding.

The extent to which Angelo lets power corrupt his administration of the law is evident later in the play, when he asks Isabella to return to his room to further discuss her brother’s situation.⁸⁴ He promises to release her brother if she will sleep with him:

Admit no other way to save his life,

As I subscribe not that, nor any other,

But in the loss of question, that you, his sister,

Finding yourself desired of such a person,

Whose credit with the judge, or own great place,

Could fetch your brother from the manacles

Of the all-binding law; and that there were

No earthly mean to save him, but that either

You must lay down the treasures of your body

To this supposed, or else to let him suffer:

What would you do?⁸⁵

Isabella refuses. She “will proclaim thee, Angelo; look for’t: / Sign me a present pardon for my brother, / Or with an outstretched throat I’ll tell the world aloud / What man thou art.”⁸⁶ And here Angelo lays bare his real devotion to justice:

Who will believe thee, Isabel?

My unsoiled name, th’ austereness of my life,

My vouch against you, and my place i’ th’ state,

Will so your accusation overweigh,

That you shall stifle in your own report,

And smell of calumny.⁸⁷

Even more blatantly than in Plato’s rendering of the trial of Socrates, Shakespeare blurs the line between power and the law, questioning the motivations of those responsible for administering justice, and drawing out the legitimacy problems that result when an advocate can no longer rely on her ability to persuade because no one is listening.⁸⁸

The Contemporary Concern

Shakespeare’s fictionalized account of Vienna’s justice system offers a glimpse into the ways in which a decision maker’s self-interest can supersede his or her decision-making function. But while his Vienna is in many ways deeply reminiscent of our current culture, where power still frequently operates to silence abuse and keep courts from addressing injustice,⁸⁹ it is nevertheless a foreign world. To be sure, power still works to keep individuals from pursuing and achieving justice; in recent cases of sexual assault, women have declined to report criminal behavior due to the fear of backlash,⁹⁰ or, as discussed further below, have been disbelieved by a police force unwilling to prosecute respected members of a community.⁹¹ Nevertheless, unlike in Shakespeare’s Vienna, we have more sophisticated processes governing the administration of justice, processes that are intended, to some extent, to prevent prejudice and self-interest from infecting decisions.

The American legal system and American government more generally were constructed with these power concerns in mind.⁹² “[A]ll men having power ought to be distrusted to a certain degree,”⁹³ James Madison declared, and so ambition would counteract ambition: powers were separated to check one another,⁹⁴ the federal judiciary was insulated from political influence,⁹⁵ and litigants were offered the promise of appellate review.⁹⁶ Indeed, our contemporary legal system has developed sophisticated doctrines and processes, both formal and informal, intended to cabin abuses of legal power. Appellate review is one such feature, allowing a legal body distanced from the trial to determine whether the lower court performed its function impartially. At the trial level, judgments notwithstanding the verdict give judges the ability to overrule or amend jury verdicts resting on dubious legal grounds.⁹⁷ More informally, reviewing courts will (although generally only in extreme cases) explicitly chide a lower court for acting ultra vires.⁹⁸ Further, and perhaps most importantly, our judicial norm of giving reasons for a decision is itself a vital check on a court’s ability to impose its own preferences in any given dispute.⁹⁹ While these and other devices may have faults of their own, they do offer some check on abuses of legal power.

And yet the problem persists.¹⁰⁰ As with Angelo in Measure for Measure, a version of Madison’s fear—that our judges and juries will be “animated by considerations of passion or self-interest”¹⁰¹ rather than by the desire to engage with and resolve the dispute at hand—continues to plague the modern legal profession. Justice Kavanaugh’s confirmation hearings, for instance, placed this fear in very stark (and very public) relief. While Dr. Christine Blasey Ford’s harrowing descriptions of her sexual assault epitomized contemporary concerns about the ways in which abuses of power have been silenced by our social and legal structures,¹⁰² Justice Kavanaugh’s opening statements railing against Senate Democrats raised a separate fear: that the individuals with the most power—those with the ability to determine what the law means—will fail to be impartial.¹⁰³ Though members of the judiciary have themselves tried to allay this concern,¹⁰⁴ it nevertheless grows more pressing with each administration, as politicians’ fears concerning the politicization of the judicial branch become self-fulfilling prophecies,¹⁰⁵ with federal judges selected not for their experience and expertise, but for their political viewpoints.¹⁰⁶

Legitimacy concerns arise in more mundane contexts as well. Recent research has confirmed the myriad ways in which all participants in the legal system—jurors, judges, attorneys, witnesses, investigators—are influenced by a number of psychological, physiological, and social factors traditionally considered irrelevant to the decision-making process.¹⁰⁷ Consider, for instance, the famous tenet of legal realism: “The law is what the judge ate for breakfast.”¹⁰⁸ Researchers have noted a similarly unnerving consequence of the judicial eating schedule: one empirical study of judicial parole rulings found that judges are more likely to simplify their decisions and deny a prisoner’s request for parole as their glucose levels drop and mental fatigue kicks in.¹⁰⁹ Although less visible than the confirmation hearings of a Supreme Court justice, these situations raise a similar fear, namely, that decision-making power will be used unwisely, ignorantly, or even perversely. It is Madison’s fear, and Shakespeare’s, and Plato’s: that those who have power ought to be distrusted (and, according to some, must be distrusted¹¹⁰), to some degree.¹¹¹

Attorneys are trained to be skeptics. The Socratic method—a dialogic pedagogical style that “has long been a defining element of American legal education”¹¹²—teaches law students to question their own assumptions about the world, laying bare the limits of their knowledge in order to foster critically-minded advocates.¹¹³ And there will always be a role for healthy skepticism in the legal system because it teaches students to engage critically with established principles. This skeptical worldview differs fundamentally, however, from the sort of skepticism advanced by Plato, Shakespeare, and others, and fostered by our contemporary debates over the impartiality—intended or unintended—of legal actors. While the former sort of skepticism encourages engagement, the latter can easily lead to an attitude of “why bother,” eroding confidence in the law.¹¹⁴ When judges, for instance, appear as nothing more than clever individuals disguising self-interested decisions in the form of a legal argument, the goal of dispute resolution is fundamentally undercut. But is corrosive skepticism inevitable, and if it is, what tools might legal professionals use to combat it, or at least stem its tide?

II. Fostering Commitment Through Disruption

The works of some prominent legal skeptics (and non-lawyers), Simone de Beauvoir, John Paul Sartre, and William Shakespeare, offer a potential response to the question of how we confront a skepticism that borders on cynicism. The existentialists provide a theoretical framework for the concept of commitment and, more precisely, committed writing. The Shakespearean character of the fool (or clown) provides an apt touchstone for how an able lawyer can confront seemingly insurmountable, and potentially illegitimate, sources of power.

A. An Existential Crisis

Philosophy—a discipline, as noted, closely connected with the development of the law—has often served as a guidepost for the legitimacy concerns of legal thinkers.¹¹⁵ Detailing the depth of philosophical influence and contribution to the legal profession is well beyond the scope of this Article. Nevertheless, meaningful answers to current crises might be found in one philosophical tradition infrequently cited by legal academics: existentialism. In particular, this tradition—with its obsessive focus on freedom, responsibility, authenticity, and commitment—may help us understand the role legal writers might play in responding to illegitimacy concerns in the legal profession.

Although pivotal in the development of twentieth-century philosophy, existentialism has had little influence on the American legal tradition.¹¹⁶ It is easy to see why: the penchant of some existentialists—Jean Paul Sartre in particular—for paradox and ambiguity¹¹⁷ makes the tradition less readily accessible to a legal world built largely on clarity and rules. Still, one of existentialism’s basic premises—that existence precedes essence or, in other words, that human existence is fundamentally characterized by choice, or “self-making-in-a-situation,”¹¹⁸ “has consequences for how we understand our legal lives.”¹¹⁹ As legal scholar Dwight Newman has argued,

When our study becomes the human individual and we become more attentive to the human individual, we look at our institutional dealings with each other more closely. When our finding is human freedom and we become more aware of our human freedom, we have a new responsibility in the face of institutions that perpetuate injustice. When our conclusion is human responsibility and we face squarely the anguish of our responsibility, we know that we need to act against injustice.¹²⁰

The existentialist tradition emphasizes that our legal institutions are fundamentally human institutions, built on and sustained by human choices.¹²¹ Thus, the legitimacy problems that plague our legal institutions are in some sense inevitable: no matter what procedures we institute, as long as individuals, acting on their own or in a collective, are responsible for making legal decisions, these decisions will be a product not merely of the law, but also of the decision maker’s background and subjective experience¹²²—which in turn raises the prospect of illegitimacy.

But this human element in our legal institutions is not always a bad thing. It enables us to empathize with the lives of others, and thus understand the consequences of our judgments. Indeed, another lesson to be learned from the existentialist tradition is that human subjectivity is most dangerous when it is forgotten or denied.¹²³ To this end, many legal scholars have worked to refocus legal studies on the human character of the law. Martha Nussbaum, for instance, has written prolifically on the subject, drawing primarily from the ancient Greek philosophers to argue that legal educators spend more time cultivating the humanity of their students, “cultivat[ing] our perceptions of the human through a confrontation with cultures and groups that we have traditionally regarded as unequal.”¹²⁴ She has relied on philosophical and literary traditions to “emphasize[] the autonomy, the irreducible singularity of each human being and the qualitative aspects of each person’s experience,”¹²⁵ maintaining that a degree of empathy and social sympathy is necessary for any legal decision maker.¹²⁶

James Boyd White and the law and literature movement more generally have also worked to return the legal world’s attention to its rhetorical roots, emphasizing the human elements of the law.¹²⁷ The “rhetorical” nature of the law, for White, is not captured by “merely the art of persuasion—of making the weaker case the stronger, as the Sophists were said to do—but that art by which culture and community are constituted and transformed.”¹²⁸ Like Nussbaum, White focuses on the literary and philosophical character of the law to suggest transforming contemporary legal education: “It is the moment of silence, when the lawyer must speak, and in speaking make something new out of his or her language, and the world, to which our deepest attention should be directed, in law school and after.”¹²⁹ Building on the law and literature tradition and focusing on the ways in which power structures our legal institutions, Robin West has also argued for return to humanism, suggesting that our “[m]oral criticism of the law might be properly grounded not in abstract reason, nor in general truths, nor in the dictates of preexisting law, nor in naked power, but rather in sympathetic judgments of the heart.”¹³⁰ Drawing from the existentialist tradition, this Article offers one more way of understanding and responding to the human element in our legal institutions: committed legal writing.

B. Commitment and Writing

Simone de Beauvoir and Jean Paul Sartre, two of the most well-known figures in the existentialist tradition, were no strangers to crisis. In postwar France, “[t]he intellectual world was in tumult,”¹³¹ and existentialism was a cultural movement born out of that crisis. Writing in response to the horrors of World War II, the mid-century existentialists developed a philosophy focused on understanding how individuals shape and are inevitably shaped by their historical moment: “The austerity and pessimism of existentialism seemed realistic and courageous; there was hope in its humanism, its teaching of freedom of choice and its appeal to man’s responsibility for fashioning himself by his own action.”¹³²

In keeping with this interest in human freedom, Sartre and Beauvoir offered littérature engagée—engaged, or committed, literature—a form of writing that emphasized the contingency of human existence and asked readers to commit themselves to taking responsibility for their actions and roles in events of the day.¹³³ According to Beauvoir, “[t]he writer is not only someone who sees the world clearly, he is also a social and political witness, whose task is ‘to testify,’ to transmit his experience of it to the reader by re-creating it in words.”¹³⁴ For both Beauvoir and Sartre, writing is “an activity carried out by human beings, for human beings, with the aim of unveiling the world for them.”¹³⁵ In this unveiling, Beauvoir argues that the reader “[has] to identify with someone: with the author; [she has] to enter into his world, and his world must become [hers].”¹³⁶ In identifying with the author, the reader is able to view the world from the perspective of another.¹³⁷ For Beauvoir, this is the “magic of literature,”¹³⁸ and, fundamentally, “[t]here is no literature if there is no voice, that is to say language that bears the mark of somebody.”¹³⁹

Sartre, who originated the idea of committed literature in his 1948 long-form essay What Is Literature?, expanded on this idea. According to Sartre, writers do not write for themselves alone; every act of writing is an act of communicating with others about the human condition.¹⁴⁰ The prose writer writes to represent the world to a reader, and in this representation, imagination and judgment are inextricably intertwined. Sartre argues:

Doubtless, the committed writer can be mediocre; he can even be conscious of being so; but as one cannot write without the intention of succeeding perfectly, the modesty with which he envisages his work should not divert him from constructing it as if it were to have the greatest celebrity. He should never say to himself, “Bah! I’ll be lucky if I have three thousand readers,” but rather, “What would happen if everybody read what I wrote?”¹⁴¹

To write for others, rather than merely for oneself, is to be acutely aware of the social implications of one’s work. To this end, Sartre draws an influential (and controversial) distinction between the poet and the prose writer. The poet, according to Sartre, sees words as objects; she is mystified by the power and inadequacy of language and seeks to manipulate this inadequacy for her own ends.¹⁴² The prose writer, on the other hand, writes to communicate. Her rhetoric is not an end in itself; rather, the written work’s meanings are realized through the dialogue between writer and reader. Accordingly, “the book is not, like the tool, a means for any end whatever; the end to which it offers itself is the reader’s freedom.”¹⁴³

Indeed, unlike the poet, “the [prose] writer, a free man addressing other free men, has only one subject: freedom.”¹⁴⁴ Sartre is not advocating here for pure artistic didacticism, but rather for a radical notion of artistic responsibility.¹⁴⁵ The committed writer understands both that the social world is fundamentally a human creation and that she has entered a world that is already created. Her imagination is free, but situated: while the writer is able to imagine what is not the case, her imaginings are always conditioned upon what is the case in any given historical period.¹⁴⁶ Language is how we confer meaning upon the world, and the rhetorical imagination is for Sartre and Beauvoir an active imagination, constantly engaged in constituting the world as it is by imagining the world as it could be.¹⁴⁷ Sartre derives a profound responsibility from this creative freedom: In the act of writing, we effect change upon the world, for which we are then responsible.

At the risk of oversimplifying the discussion, the committed writer is concerned not with moralizing, per se, but rather with the prospect of

achiev[ing] the most lucid and the most complete consciousness of being embarked, that is, when he causes the engagement of immediate spontaneity to advance, for himself and others, to be reflective. The writer is, par excellence, a mediator and his engagement is mediation.¹⁴⁸

For the committed writer, then, the narrative imagination is never “free” in the negative sense of being completely spontaneous, completely unbound; rather, the committed writer recognizes that her own imaginative freedom comes into being only through an active engagement with the external world—one that existed before the writer’s birth and will go on after the writer’s death. The freedom of the writer is thus a social and historical freedom, and it becomes the committed writer’s responsibility to induce others to recognize this freedom within themselves. It is this moral commitment to the freedom of others that distinguishes the committed writer from other artists, for Sartre: the committed writer engages her readers in a dialogue concerning the ways in which we abdicate responsibility for our social realities and treat others as means, rather than ends. She imagines the world differently, not for the sake of imagination itself, but to create a world in which the freedom of others may be universally recognized. Indeed, for both Beauvoir and Sartre, “engagement is first and foremost a critique of the situation or its acceptance . . . through the medium of a literary work.”¹⁴⁹ And for these reasons, among others, this model of commitment seems so well suited to the law and legal writing in particular.¹⁵⁰

The theory of committed literature has received both praise and criticism from novelists and literary theorists. For some, the literary work must be understood as an end in itself, apart from any social purpose.¹⁵¹ For others, the act of writing a novel must inherently be an act of commitment.¹⁵² Salman Rushdie, for instance, argues that some level of commitment on the part of novelists is necessary, noting that

[i]f books and films could be made and consumed in the belly of the whale, it might be possible to consider them merely as entertainment, or even, on occasion as art. But in our whaleless world, in this world without quiet corners, there can be no easy escapes from history, from hullabaloo, from terrible, unquiet fuss.¹⁵³

Whatever the role played by committed literature in the trajectory of literary theory, the paradigm, with its emphasis on voice, identification, and freedom, offers a helpful tool for approaching the task of legal writing, most notably as an antidote to illegitimacy and immobilizing skepticism. As with the existential committed writer, the goal of the legal writer—both advocate and judge, as discussed more fully below¹⁵⁴—is to “overcome[] existential separation,”¹⁵⁵ asking the reader to listen to and engage with the exigencies of the dispute at hand. The trick, of course, is how to do so, and once again we turn to another literary source for inspiration.

Lawyer and Fool

Despite the acrimonious language he sometimes uses to describe the legal profession,¹⁵⁶ the works of William Shakespeare can illustrate for contemporary advocates one path forward, away from cynicism and toward the type of commitment described above.¹⁵⁷ While many writers of fiction might similarly illustrate the point, Shakespeare’s talent for “creat[ing] and resolv[ing] conflict”¹⁵⁸ allows his work to serve as a constant source of inspiration for the legal profession.¹⁵⁹ And while scholars have examined Shakespearean comedy’s relationship with the law,¹⁶⁰ few to date have recognized how the Shakespearean fool, the self-designated “corrupter of words,”¹⁶¹ has a unique role to play in the law and legal writing in particular.

Shakespeare was, as many have recognized, a keen observer and chronicler of human freedom.¹⁶² As Stephen Greenblatt notes,

What is striking is that [Shakespeare’s] work, alert to every human fantasy and longing, is allergic to the absolutist strain so prevalent in his world, from the metaphysical to the mundane. His kings repeatedly discover the constraints within which they must function if they hope to survive. . . . So too his proud churchmen are mocked for their pretensions, while religious visionaries, who claim to be in direct communication with the divine, are exposed as frauds.¹⁶³

Shakespeare shares many similarities with the later existentialists; like Beauvoir and Sartre, Shakespeare rejects essentialism.¹⁶⁴ Further, while the theme of “fate” plays a significant role throughout his work,¹⁶⁵ it is often the characters themselves who make choices that end up shaping and determining their destinies.¹⁶⁶

In laying bare the fundamental freedom and frailty of human beings,¹⁶⁷ Shakespeare often uses the character of the Fool to unleash a disruptive sort of irony. By “reveal[ing] inconsistencies in human behavior,”¹⁶⁸ the Fool conveys to the characters and the audience the contingency of existence, that things could be otherwise. King Lear provides a notable example: the play concerns a king who, blinded by arrogance and convinced that his power as a beloved father and ruler is immutable, disinherits his daughter Cordelia when she refuses to make broad declarations about how much she loves him.¹⁶⁹ Instead, he gives his kingdom to his other two daughters, Goneril and Regan, outright, and then goes slowly mad as the daughters’ newfound power comes to corrupt both of them.¹⁷⁰

Throughout the play, the character of the Fool acts as a disruptive force, openly critiquing the irony of Lear’s actions as he takes them. In one exchange, the Fool derides Lear for giving his wealth away to his least worthy daughters, and Lear threatens to whip him, which in turn leads the Fool to remark:

I marvel what kin thou and thy daughters are:

They’ll have whipped me for speaking true, thou’lt

Have whipped me for lying; and sometimes I am

Whipped for holding my peace. I had rather be any

Kind o’ thing than a fool: and yet I would not be

Thee, nuncle; thou hast pared thy wit o’ both sides,

And left nothing i’ the middle . . . .¹⁷¹

He continues: “I am better than thou art now; I am a fool, thou art nothing.”¹⁷² Although Lear fails to take the Fool seriously, the Fool’s disruptive critique works to undermine the image Lear has of himself as a powerful king. In this way, the audience, if not Lear, comes to understand that a king without a crown is just a man, with the same flaws and failings as anyone else. Indeed, as Mark Edmundson has noted, “before the play is over, Lear, tutored by the Fool, will show us how humane a vision can arise from losing all outward trappings, and seeing the essential fragility and preciousness of everything that lives.”¹⁷³

Many other Shakespearean fools serve a similar function for the audience. Feste and Touchstone, for instance, the fools of Twelfth Night and As You Like It, respectively, work throughout the plays “to explode [the] pretensions”¹⁷⁴ of the main protagonists.¹⁷⁵ While the fools in many of Shakespeare’s plays are effective in undermining the self-deception of other characters, they themselves are relatively powerless. “Shakespeare’s fools are subtle teachers,”¹⁷⁶ not prone to active intervention in the affairs of others; as Roger Ellis writes of Lear’s fool, “it is here, especially in King Lear, that the fool comes into his own as the agonized expositor of a disordered conscience, the figure who sees truly what the world is like and feels powerless to change it.”¹⁷⁷ It seems no coincidence that the name “Touchstone” refers to a stone that is not precious in itself but useful only insofar as it reveals the value of another substance.¹⁷⁸

While fools like those described above use irony, cynicism, and word play as disruptive forces to tear down the audience’s (and other characters’) preconceptions about the world, there are also rare moments when disruption in the form of a fool is presented as a restorative force, capable of not only laying bare the contingency of existence but also realigning a character’s commitment to an alternative, more humane worldview. For an example, we can return to Measure for Measure and look to a different comic character: Barnardine. Described as “[a] man that apprehends death no more dreadfully as a drunken sleep; careless, reckless, and fearless of what’s past, present, or to come; insensible of mortality, and desperately mortal,”¹⁷⁹ Barnardine is a prisoner whom the Duke wishes to execute in order to make Angelo believe that Claudio is dead—part of the Duke’s plan to regain control of his city.¹⁸⁰

Barnardine enters to play his role; he will die, so Angelo may have his head in place of Claudio’s. And yet Barnardine refuses, reminding both the Duke and the reader that the authority of the law is itself something of a fiction, or, at the very least, can falter in the face of a convincing alternative worldview. When the Duke tells Barnardine that he will die, he objects: “I will not consent to die this day, that’s certain.”¹⁸¹ When the Duke insists, he replies: “Not a word. If you have anything to say to me, come to my ward, for thence will not I today.”¹⁸² Barnardine’s refusal reminds us that things could be otherwise—he does not have to die, merely to satisfy the Duke’s scheme and the play’s narrative trajectory.

Barnardine’s refusal to comply with his own execution also serves to draw the reader out of any complacency with the way in which the plot is proceeding, forcing her to reckon with Barnardine’s singular humanity. In this way, Shakespeare uses Barnardine to ask the question fundamental to the committed legal writer: “Is the way a person appears before the law adequate to the reality of their lives?”¹⁸³ Barnardine demands to be an end in himself—not a means for ensuring the protagonists’ happy endings.¹⁸⁴ The Duke, and the play’s audience, must engage with him. It is in situations like this that Shakespeare’s gift as an artist is most apparent: Barnardine has eight lines in the play, but he is given a great deal of life and freedom. He is a prisoner, part of a historically disenfranchised group whose voices are generally either silenced or ignored, but Shakespeare gives him a voice equal to that of a duke. Indeed, when the two men converse, they converse not as prisoner and duke but as equals; thus, Barnardine is the only character in the play capable of making the Duke stop speaking mid-sentence.¹⁸⁵ And the Duke does pardon Barnardine.¹⁸⁶

It is this act of disrupting the Duke’s plan and asking him to commit to an alternative worldview that holds promise for reassessing the role legal writers can play in responding to the contemporary legal legitimacy crises described above. Like so many of Shakespeare’s fools, a committed legal writer would endeavor to disrupt her reader’s complacency and expose, instead, other possible endings, other choices. And, like Barnardine, a committed legal writer might also ask her reader to commit to a more humane understanding of the world and the law.

III. The Committed Legal Writer in Context

While disruption and even disobedience are far from new strategies with which to confront illegitimacy in the law,¹⁸⁷ disruption à la Barnardine has a unique appeal and resonance for legal writing.¹⁸⁸ Written communication, in one form or another, lies at the heart of the law.¹⁸⁹ Once considered to be nothing more than archaic jargon and legalese, on the one hand, or simply something good lawyers know how to do, on the other,¹⁹⁰ legal writing is now recognized as a doctrine that has its own “discursive conventions” and “rhetorical commitments” that are “specific to the discourse of the law.”¹⁹¹ Chris Rideout and Jill Ramsfield, for example, describe how the discipline of legal writing has progressed from a formalist perspective, to a process perspective, to a social perspective that goes “beyond a focus on the individual writer to acknowledge the social contexts within which writing takes place and, thus, to acknowledge the ways in which writing generates meanings that are shaped and constrained by those contexts.”¹⁹² Within this social context, the legal writer’s identity and power is best characterized as “discoursal” or, in other words, shaped by and a product of what she writes.¹⁹³ Moreover, by mastering this discourse, legal writers build an ethos that both makes them more persuasive to outside audiences and fosters a belief in their own legitimacy.¹⁹⁴

“Committed” legal writing need not take any particular form but examples of how such an approach might manifest, whether on a grand or modest scale, help show the power of such an approach. Consider the example Robert Cover offers of the radical constitutionalists who opposed slavery not by rejecting governing law (the Constitution) but by using legal writing, in the form of “pamphlets, arguments, columns, and books,” together with the Declaration of Independence and other parts of the Constitution, to disrupt existing patterns and enable a “jurisgenerative process” or, in other words, “an immense growth of law.”¹⁹⁵ The balance of this Part describes legal writing by judges and advocates whose work might be characterized as “committed” because it helps realign the audience and recognize the human element at stake in a particular legal matter, even when that element ultimately may not control.

A. The Committed Jurist

We start with judicial opinions, because they are the most well-known example of legal writing and shape the trajectory of the law in far more decisive ways than legal briefs. Moreover, although judicial opinions raise the question of multiple authors, they avoid the dilemmas raised by client demands that put an extra burden on committed advocates. Arguably, any judicial opinion that considers and weighs policy concerns might be characterized as “committed,” because of its focus on something more than the individual litigants’ dispute.¹⁹⁶ And yet, the tough cases are those where answers are readily available in the form of an applicable statute, body of law, or procedural mechanism that somehow lies in contrast to the human concerns. It is this type of case that has the potential to cause its audiences, law and layperson alike, to despair that the law is a means of achieving justice and is not at odds with that goal. Where judicial opinions are concerned, disruptive rhetoric has long had a role to play in how such cases affect their readers. The power of Justice Harry Blackmun’s famous dissent in DeShaney v. Winnebago County,¹⁹⁷ for instance—a case where the Supreme Court found that a state government could not be held liable for failing to intercede before the death of a child, Joshua, at the hands of his abusive father—rests on this sort of humanizing, disruptive rhetoric. The dissent in that case invokes just two words—“Poor Joshua!” that not only remind the reader of the victim’s humanity but also disrupt the reader’s understanding of what a legal opinion is and should be.¹⁹⁸

While we may not return any time soon to a judicial approach that provides “inspiration for all the world,”¹⁹⁹ there are moments in judicial decisions that show what it means to reason while remaining “fully sensitive to, and cognizant of, the underlying social reality” of a decision.²⁰⁰ A recent example appears in the 2013 per curiam opinion Boyer v. Louisiana, in which Justice Sotomayor dissented because she refused to allow the procedural mechanism of “writ of certiorari improvidently granted”²⁰¹ to dissuade her from solving a critical problem that was sufficiently factually developed and a plague to the lower courts. Her dissent helps delineate some of the contours of a committed legal writing approach.

The Supreme Court granted certiorari in Boyer to resolve an issue of striking social significance: whether the failure of a state—in this case Louisiana—to provide funding for indigent counsel should be counted against the state when determining whether an individual’s Sixth Amendment right to a speedy trial has been violated.²⁰² In Gideon v. Wainwright, the Court construed the Sixth and Fourteenth Amendments to require state-funded defense counsel for indigent defendants convicted of a felony.²⁰³ Gideon was heralded by many as a triumph for individual rights, ensuring that “a poor person unable to afford a reasonable attorney’s fee is treated substantially the same in our criminal and juvenile justice systems as a person of financial means.”²⁰⁴ Nevertheless, Gideon and its successors²⁰⁵ “have been a significant unfunded mandate with which states have struggled for more than fifty years.”²⁰⁶ Without the resources or social structures necessary to adequately fund indigent counsel, defendants have lingered in jail, or, alternatively, been denied counsel outright.²⁰⁷

The Louisiana state courts are no different: defendant Jonathan Boyer waited more than seven years in a Calcasieu Parish jail for his trial—on murder and armed robbery charges—to begin.²⁰⁸ Even though the parish had the funds necessary to enable Mr. Boyer’s defense, the Louisiana Supreme Court had in an earlier case found, consistent with Gideon, “that the parish could not be ordered to pay because that was the state’s duty.”²⁰⁹ And as opposed to the parish, the state was (and is) experiencing a funding crisis relating to indigent defense, caused by “undependable revenue sources, shrinking budgets and political paralysis.”²¹⁰ Accordingly, while the rights to counsel and a speedy trial remain, “there is a vast gulf between the broad premise of [Gideon’s] ruling and the grim practice of legal representation for the nation’s poorest litigants.”²¹¹

In Boyer, the Court was presented with one opportunity to address the extent to which our social structures have failed to live up to our constitutional ideals. Indicted and jailed without bond in 2002 for the alleged robbery and murder of a driver who offered him a ride, Mr. Boyer’s case did not proceed to trial until 2009, when a jury convicted him of second degree murder and armed robbery.²¹² Boyer appealed the conviction, arguing that the state of Louisiana had violated his Sixth Amendment right to a speedy trial in light of the years he spent in jail. The Louisiana Court of Appeal denied the claim, but “found that most of the delay in Boyer’s case was caused by the State’s failure to pay for his defense due to a funding crisis experienced by the State of Louisiana.”²¹³ The question the Supreme Court granted certiorari to address was whether, under the Court’s Sixth Amendment precedent, trial delays resulting from a state’s indigent counsel funding crisis should weigh against the state in determining whether the petitioner’s right to a speedy trial has been violated.²¹⁴

Instead of answering this question, however, the Court decided to dismiss the writ of certiorari as improvidently granted, after determining that the lower court’s factual findings were inaccurate, and that the delay in Boyer’s trial resulted primarily from his own counsel’s repeated delays.²¹⁵ The Court’s per curiam opinion was met with significant disapproval by Justice Sotomayor, who authored a lengthy dissent. Sotomayor took issue with several of the majority’s positions—she argued both that the case was easily resolvable in favor of Boyer under the Court’s existing precedent,²¹⁶ and that the majority had failed to be properly deferential to the factual findings of the lower court.²¹⁷ Most importantly for the purposes of this Article, however, she suggested that in cases such as Boyer, when constitutional rights are at stake and the Court’s precedent provides an answer, the Court has a duty to remind states of their constitutional obligations: “It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial.”²¹⁸

Although rare, it is not unusual for the Supreme Court to rely on procedural mechanisms—like denying a writ of certiorari as improvidently granted—in cases where the Court’s initial understanding of the record and question presented are put into question after further review of the facts and briefing.²¹⁹ And yet, as Justice Sotomayor makes clear, factual complexities would not have prevented the Court from issuing some ruling on the merits of this appeal, even if that ruling were a narrow one.²²⁰ The Court instead refused to engage with the merits of an easily resolvable suit—one which could have, if not far ranging consequences, at the very least a clear and tangible effect on both the rights of a single litigant as well as those of other indigent defendants facing excessive pre-trial confinement due to a state’s negligent or intentional failure to fund their defense. While subtler than the examples of legal illegitimacy seen in Plato and Shakespeare,²²¹ these contemporary procedural mechanisms for avoiding the merits of a suit can erode the confidence of advocates and litigants in a court’s ability and desire to engage with the dispute at hand. Indeed, to the extent procedural mechanisms mask how courts determine whether to take up the merits of a dispute, they are perhaps uniquely capable of compounding the skepticism surrounding our modern legal profession—as well compounding one popular conception of the advocate as uninterested in the pursuit of justice.

Justice Sotomayor’s approach to this potential illegitimacy is striking for its engagement with—and attempt to focus the reader’s attention on—the complex legal issues raised by the Boyer case. Regardless of her lack of success in convincing a majority of her colleagues to answer the constitutional question the Court had originally planned to answer, Justice Sotomayor’s emphasis on the larger context in which Boyer’s dispute was playing out illustrates a committed approach to legal writing. Though per curiam opinions are rarely released with any fanfare, let alone lengthy concurrences and dissents,²²² Justice Sotomayor’s committed dissent gives voice to the voiceless, expanding her audience’s social consciousness while at the same time refusing to forsake her reliance on reasoned legal argumentation.

The Committed Advocate

In some respects, it is more difficult to identify examples of writing by committed advocates, as opposed to judges, because an advocate must focus on arguments that best serve her client’s goals, which may not align with arguments that engage a larger social context. And yet, there are examples of briefs, or components of briefs, that demand, like Barnardine, an uncommon, unanticipated, and arguably more humane result. The authors of these examples use various techniques, including novelty, contrast, and even silence, to disrupt and realign their readers. As committed legal writers, they ask their audiences to recognize and engage with the social, political, and human element in the law, even if doing so is only a minor part of the argument. While the techniques may differ, the examples share the characteristic of “narrative fidelity” in that each supports its readers’ belief that what is written reflects experience and social reality.²²³ In Rideout’s words, legal writing has narrative fidelity when it “goes beyond logic alone, to values” and “involves an act of self-definition, not only by the immediate audience, but for the community within which that audience . . . [is] situated.” ²²⁴

Linda Edwards, who has written extensively on the persuasiveness of briefs, points to some famous historical briefs that used techniques so different from their predecessors as to command the attention of the readers and shift the audience’s perspective, thereby showing commitment not only to the specific problem before the Court but also to the larger social context.²²⁵ For example, Edwards describes how the brief filed on behalf of the State of Oregon in Muller v. Oregon, known to many as the “Brandeis Brief,” contained more than 100 pages of sociological and statistical data collected by two labor reformers, Florence Kelly and Josephine Goldmark, to help demonstrate the “pernicious” social costs to workers and their families that the challenged legislation was designed to address.²²⁶ The advocates also filed “a more conventional brief, relying on legal precedent and traditional legal argument,” but it was the Brandeis Brief that “forged the way for a new kind of argument” and ultimately persuaded the justices to uphold the Oregon statute.²²⁷ The Muller advocates took a committed approach by supplementing precedent and policy with social science data to convince the decision makers to engage with the human, political, and social concerns at stake.

On a far less epic scale, Bryan Garner describes briefs that employ creative and unusual architecture—structure that ignores or flouts traditional conventions of legal discourse—to illustrate, and help the audience appreciate, otherwise abstract concepts.²²⁸ For example, Garner describes how Mike Hatchell, of Tyler, Texas, begins a motion for rehearing with a prologue in the form of a play set in the corporate board room of a fictional company.²²⁹ In this play, the main character, the company’s in-house counsel, tries to explain to and advise his CEO and board about the case, Caller Times Publishing Co. v. Triad Communications, Inc.,²³⁰ that Hatchell was asking the court to rehear and modify.²³¹ The unusual structure of the brief forces the reader to engage with how the case defined, or failed to define, “profit margin,” and the frustration of antitrust lawyers around the state trying to make sense of the earlier ruling.²³² Patricia Williams illustrates the power of language as the power of law when she describes her early work in the City Attorney’s office.²³³ Reviewing Williams’s book, Linda Greene observes how Williams “implored her jurors to seize their interpretive power,” and “not cede the power to define the word ‘sausage’ to manufacturers who would use that power to legitimize the production of sausages filled with rodents and sawdust.” ²³⁴ A closing oral argument rather than a written brief, Williams’s plea nevertheless shows the subversive power of legal language and commitment to a different vision of meaning.

But it is not just novelty that helps realign audiences. In a world where every advocate is trying to weave a creative and compelling story about her client, the committed legal writer might provide a deliberately spare, unvarnished description of a client’s problem to disrupt the reader’s thought patterns.²³⁵ In considering the relationship between law and art, Wendy Duong describes an “anti-rhetoric” theory, observing how “the art of law is the skilled and respectable exercise of constraint.” ²³⁶ Edwards makes this idea more concrete by describing the defense brief filed in the consolidated death penalty cases known as Furman v. Georgia,²³⁷ which exemplifies “how good advocacy can help a lawyer practice virtue, particularly in what may be the most difficult brief-writing dilemma of all: dealing with bad facts.” ²³⁸ More to the point of this Article, Edwards describes how the facts about one of the defendants read like a “poster child for the State’s argument in favor of the death penalty” and thus were likely to cause an emotional reaction even in readers who might otherwise be open to arguments about the death penalty.²³⁹ Rejecting the “virtually unquestioned standard advice”²⁴⁰ about minimizing bad facts, the attorney instead defied expectations when he wrote a facts statement that told of the “ghastly crimes” of his client that “were attended by aggravating features that must necessarily arouse the deepest human instincts of loathing and repugnance.”²⁴¹ This unconventional choice helped build credibility for the advocate, inoculated the reader to facts that were certain to appear, smuggled in a few helpful facts, and ultimately allowed the advocate to execute “an aikido move,” a disruptive feint.²⁴² One can imagine moments when silence and blank spaces might capture the unspeakable nature and complexity of a client’s dilemma.²⁴³ It is the structure of such briefs that serves as the fool in this case, demanding attention, breaking molds, and “corrupting” otherwise static language to help the reader appreciate an alternative world view.

Finally, amicus briefs help bring home the grand potential for committed advocacy. The “Voices brief,” which was filed by the National Abortion Rights Action League (NARAL) in the 1986 Supreme Court case Thornburgh v. American College of Obstetricians & Gynecologists, is another of Edwards’s “great briefs” and an example of committed advocacy.²⁴⁴ The brief tells the stories of women outside of the litigation, women whose lives would inevitably be affected by the Court’s decision. In doing so, the brief refused to “treat women as ‘other,’”²⁴⁵ instead crafting “a legal argument that helped to place before the Court the realities of women’s situations when confronting such a profound and personal choice.”²⁴⁶ As Robin West notes, the “Voices brief”

shows—illustrates—the terrible consequences of rolling back Roe v. Wade. Obviously, one does not have to have been there to understand what those consequences might be. However, one must indeed somehow be shown those consequences. The consequence that matters in that, in a world of illegal abortion, some of us, but not all of us, live in a regime of terror, torture and unnecessary death. This is not a hard point to grasp. But, to be grasped, it must be shown. Principles and reason do not make the case.²⁴⁷

This approach is fundamentally disruptive, defying legal conventions by relying on sources outside the record and voices outside those of the parties to the litigation.²⁴⁸ But it does not disrupt merely for disruption’s sake. The brief instead disrupts in order to commit its readers to focusing on what was at stake in the Thornburgh litigation: the lives of the women who would be affected by the Court’s decision. As noted above, the committed legal writer, like the drafters of the Thornburgh brief, does not ignore that social and political problems shape the lives of people involved in the legal system, but rather engages with this reality and, by situating her legal writing in lived experiences, encourages her audiences to engage with that reality.²⁴⁹

Of course, asking advocates to think beyond their clients may seem to ask too much, especially if the specific interests are not aligned. To Beauvoir and Sartre—especially Sartre—a work of committed literature is inherently political, not to the extent that its subject matter is politics, but because it is constantly addressing “the great social and political questions of our time.”²⁵⁰ While “the business of the novelist”²⁵¹ might be “to concern himself with contemporary social and political problems,”²⁵² it is certainly fair to ask whether such abstract problems are properly the concern of lawyers.²⁵³ One response is, as the existentialists realized, that the larger problems beyond immediate client need cannot be avoided because they “are part of the reality which is forced on each one of us.”²⁵⁴ The legal writer can neither ignore them nor will them away. White, Rideout, and many other scholars of legal writing and rhetoric recognize this reality when they highlight the social and communitarian nature of the law and legal discourse.

Second, contemplating a way of thinking about lawyering that encourages advocates to commit to their clients and to the context in which the client is situated helps address one aspect of the cynicism and disillusionment with which this Article started. A committed approach to legal writing recognizes that an advocate’s identity is more than simply an instrument or mouthpiece for a client. We traditionally think of lawyers as writing solely for others. But encouraging lawyers to recognize the human element in the law allows lawyers to write, too, for themselves, for the law, and for society more generally. It is hard to think of an approach that would address more directly the disillusionment that makes advocates feel so unconnected to the profession they set out to join.

This response raises the question of whether a committed approach to legal writing and legal practice more generally over-privileges the human element of the law. By attempting to recognize the freedom of the legal decision maker, does it risk returning legal practice to an exercise in sophistry and appeals to emotion that so concerned Socrates, Shakespeare and others? Not necessarily. The committed legal writer’s focus on the “human” element of the law is not a substantive focus merely on appealing to the emotions of a decision maker. It is an emphasis on asking the audience to engage with the exigencies of any given dispute, to avoid ignoring the complexities of a case in favor of easy legal rules. An advocate who thinks of these opportunities as Barnardine moments will be less likely to lose hope or cave to cynicism, regardless of whether the arguments succeed.

Conclusion

Plato’s views on the morality of legal advocacy were relatively bleak: in the Gorgias, for example, Socrates characterizes rhetoric as “a producer of persuasion. Its whole business comes to that, and that’s the long and short of it.”²⁵⁵ Perhaps this is correct—and perhaps the primary goal of most contemporary advocates is still to use rhetoric to persuade. But the committed legal writing approach offered here suggests that we aim to do more. By seeking to disrupt static modes of legal reasoning by focusing on the real-world elements of the legal problem, the committed legal writer may help enhance the legitimacy of the profession for lawyers and nonlawyers alike.

Committed legal writing need not take any particular form—like we saw above in the case of Measure for Measure, it need not be didactic to engage its audience. Indeed, commitment is a way of relating oneself to the world; it is the acknowledgment that the legal writer is responsible for the words she chooses and does not choose. She confronts clients and legal issues not solely as means to produce a particular legal end, but rather with the goal of understanding the nature of the conflict and imagining a world in which the conflict might be resolved. Achieving this goal requires the committed writer to commit her imagination to the needs of her audiences. And like Barnardine, the facts of the case must be allowed to speak, and the committed legal writer must allow herself—condition herself—to listen.

Almost twenty years after giving us his vision of committed literature, Sartre returned to the theory in his autobiography The Words. He writes, “For a long time I took my pen as a sword; I know we’re powerless.”²⁵⁶ These strategies of fostering disruption and commitment will not always be successful. Still, we must find inspiration where we can, and the paradigms of disruption and commitment might serve this function. Perhaps in this small way the law might not only reaffirm its roots as a rhetorical discipline, but might also advance beyond mere rhetoric, cementing its reputation as the sort of discipline of which even Plato would be proud.