He Uses Metaphor, Alliteration, and other
Literary Devices (But Sparingly)
There’s a familiar refrain among some lawyers that law school
“ruined” their writing; such lawyers say they started law school as
solid, creative writers, only to have everything they deemed good and
imaginative about their writing stripped away by the formulaic nature
of legal writing. It’s true that beginning legal writers often have to
unlearn styles that served them well in other genres. Much academic
writing, for example, is bloated with complex sentence structures and
ten dollar words that seem to function more to gate-keep than to
welcome readers.
Yet, as many lawyers eventually discover, truly great legal writing
need not be boring. “Plain,” as in the advice “use plain language,”
is not code for “use dry, dull language.” Rather, it is simply a
recommendation to use language that is easy to understand the first
time its read. Using plain language doesn’t preclude using creative
literary devices; it simply requires using them more sparingly and
subtly, so as not to weigh down the legal document.
Gorsuch does this masterfully in his opinion. He uses alliteration
(“Constant competition between constable and quarry, regulator
and regulated, can come as no surprise in our changing world.” 4 ),
rhetorical questions (“Doesn’t it seem likely your friend would
understand you as speaking about a debt currently owed to Steve, not
a debt Steve used to own that’s now actually yours?” 5 ), and even an
extended metaphor (at various points, he describes the Petitioners
as “eager to pitch battle, 6 ” and “in retreat, 7 ” while one of their most
important premises “misses its mark.” 8 ).
Gorsuch’s use of these various literary devices gives his opinion an
almost poetic quality at times, one that isn’t often found in legal
writing. Yet, importantly, he doesn’t overuse the devices, which would
risk distracting from the important legal information conveyed in the
text. Instead, they are peppered throughout, adding a richness to the
opinion without detracting from its effective simplicity.
Conclusion
Gorsuch’s first written opinion as a United States Supreme Court
Justice reflects a clear, crisp style illuminated by a touch of creativity.
Who he is and who he will become as a Justice remains to be seen,
but if this first opinion is any indication, who he is as a legal writer
deserves praise.
1. Henson, et. al. v. Santander Consumer USA Inc., 582 U.S. __ (2017),
No. 16-349, slip op. at 1 (U.S. June 12, 2017).
2. Id.
3. Id. at 7.
4. Id. at 11.
5. Id. at 4.
6. Id. at 8.
7. Id. at 7.
8. Id. at 6.
SUMMER 2017
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