Paper 2

This one was for Legal Ethics. We had to pick an outside source (preferably a non-legal one) and use it to comment on a topic we covered in class. I picked David Foster Wallace and exclusion from the legal profession. Not brilliant, but it works.

The Sweet and Sour of American Legal English: How Language and Convention Exclude Non-Lawyers from Legal Practice*

It’s a pretty uncontroversial idea that, in the United States, a person may represent himself in court. The space for laypeople to represent themselves in transactions and litigation is also accepted by the self-regulating legal profession. But formal permission to represent oneself isn’t the whole story: the legal profession uses a language, American Legal English, that informally, but routinely, excludes from practice the people who would exercise their right to self-representation. With David Foster Wallace’s essay “Authority and American Usage (or, ‘Politics and the English Language’ Is Redundant)” as a guide, I present several propositions. One: Some parts of legal practice are inherently complex, and using a shared language as precise as ALE reflects this complexity and so helps mitigate conflict. As an example, I consider complicated business transactions between sophisticated corporate parties. Two: Other parts of legal practice that are not inherently complex (such as simple commercial transactions between individuals) have dispensed with ALE and substituted a different, plainer English that functions well without the interference of lawyers or lawyerly complexity. Three: In a few distinct areas of legal practice, self-representation could be a useful fill for hiring a lawyer, but the litigant is required to forego self-representation because knowledge of ALE is still required by the system. In these situations, it’s unclear whether the cost of excluding some litigants from getting an effective hearing of their claims is outweighed by the benefits of precision that using the shared ALE language provide to the legal system. . . .

*Yes, I know law school papers don't have to follow this title convention. I wrote these very close in time (and for two professors who happen to be married to each other), and the titular mirroring is actually deliberate. The colon is now banished.