Legal Commentary

I enjoyed Dave's post immensely, even if I'm not sure I've ever heard the word "zazz" before.  I would note that Dave doesn't distinguish too much between legal writing that has operative force in the real world, such as a court's order, and legal advocacy, such as a brief, and legal scholarship.  He notes the distinction, but I would make more of it.  There are reasonable limits to the degree to which writing in category one should engage in too much free-wheeling humor, particularly humor directed at the parties; although, as he notes, judges like Posner and Kozinski, who are already skilled writers, manage to add a good deal of liveliness to their writing without generally crossing the line.  Those judges show that you can write perfectly seriously without writing pompously -- that there's a difference between having real substance and putting on a show of having gravitas.

But Dave's argument that good humor has to be "not terribly serious," while "law is, at its core, a pretty serious endeavor," strikes me as incorrect on both sides of the equation.  While there is plenty of good light and absurd humor, it strikes me that great humor (and, in fairness, maybe there's a difference between good humor and great humor) should be very serious indeed, in the sense that it should strike at the heart of our own worst and weakest moments and those of others, and flirt with some very serious lines -- not for the sake of being "transgressive," and certainly not because doing so is conducive to social change, or any such rot, but because that's where the best humor lies. 

Contrariwise, I am not sure I agree with the proposition that law in general, at least if you're talking about academic legal writing, is an especially serious endeavor.  Is it, really?  Even if it were, that has nothing do do with what kind of wit you can bring to the enterprise.  It's possible to take an enterprise perfectly seriously, invest all your heart and all your intellectual rigor in it, and still wear your work, and your sense of self, lightly.  Indeed, if you love your work and take joy in it, I should think it would often be shot through with a sense of gentleness, grace, and bemusement -- not least self-bemusement. 

Of course, that doesn't excuse sloppy, boring, or out-of-touch pop culture references or bad jokes; maybe it's thus safer to be "weighty" than light. But I tend to think of the absence of genuine lightness and humor in legal academic writing as one more symptom of the legal academy's endless crisis of authority (maybe the human condition's endless crisis of authority; I'm not sure, but I'll start with a narrower sample just to be safe). Writing with an intentional air of gravity isn't that different from using unnecessary big words in a manuscript, or making the manuscript look all fancy and law review-ish, or making extravagant claims about the novelty of your work, or using fancy letterhead, or acting as if you know more than you do, or insisting on being called "Doctor" even though you're a mere academic (although I trust that no law professors indulge in that particular petty sin). It's just one more means of asserting, claiming, or pretending to authority in an environment in which the criteria for substantive evaluation or so contested, and the judges of those criteria often so unqualified, that one may be better off, and get further, by looking "authoritative" than by merely making good arguments. That's true both in the sense that you may get more validation from others by acting "serious," and in the sense that you may feel better about yourself if you can convince yourself that you are a "serious" person engaged in "serious" work.