to do these tasks,
47
although there certainly have been attempts to explain how
lawyers can write more clearly.
48
In their efforts to understand the tasks of
legal reading and writing scholars have examined them from several different
perspectives. Some involve hard logic focusing on the rational components, or
the delivery of information to use the phrase adopted earlier in this text.
Examples of this approach are the perspectives of argumentation,
49
mathematics,
50
logic,
51
automatic analysis
52
and rationality.
53
Other approaches
have looked at the more creative
or sensational aspects. These have
considered legal writing from the perspective of rhetoric,
54
language,
55
linguistics,
56
semantics,
57
style
58
and literature.
59
Creation of the Model
In answer to these perceived problems with legal writing, this text proposes a
model for writing law that is an adaptation of a general model for writing. This
model is based on an analysis of the process of communication. Essentially
the writer creates a text which conveys information to the reader. This process
has three highly interconnected parts – the readers, the text and the process of
writing. A writer must identify the likely readers so that the text can be
addressed to their level and understanding, the writer must understand the
function, structure and characteristics of a text so that they know how to
construct it, and the writer must understand the process of writing from first
idea to final edit so that they can perform it competently and efficiently.
While all of these are important, by far the most important is structure,
particularly the need to have a clear overall structure. For much legal writing,
especially those texts that create primary sources of law (drafting legislation
___________________
47
Nafziger (1980-82), Sossin (1995)
48
Willis (1978), Berry (1987)
49
Luhmann (1995).
50
Casen (1986), Lehman (1984).
51
Allen (1957), Allen (1962)
52
Marhno (1986)
53
Rubin (1991).
54
Wald (1995), Saunders (1994)
55
Chaim (1983), Danet (1980), Mellinkoff 1963, Shuy, (1986)
56
Goodrich (1984)
57
Moore (1981)
58
Posner (1995)
59
Nussbaum (1995). One related idea is to look at literature from a
legal perspective –
see Turner (1987-89). Another is to use literature to
teach law – see Turner (1985).
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