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November 26, 2007

A forthcoming Scalia book already on my must-read list

Thanks to How Appealing I saw that Tony Mauro has this new column in Legal Times headlined, "Scalia to Join Supreme Court Book Club; Don't expect a tell-all: Justice is working on guide for lawyers."  Here are excerpts from the article:

While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia's probably won't be a chart-topper -- except among lawyers.  Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs. 

Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts.  As Scalia is often viewed as the Court's best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods.

"Justice Scalia is a very serious student of advocacy," says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing.  "The idea is that we can make an important contribution to legal literature... and discuss basic principles of argumentation, rhetoric, and judicial persuasion."

Garner says they have "spent four of the last 14 days side by side in [Scalia's] office," writing and rewriting chapters in the book, a process they began last summer.  It's been an interesting experience, says Garner, who is also editor of Black's Law Dictionary....

In writing the book, Garner and Scalia have also delved into the classic authorities on rhetoric, persuasion and oratory, such as Cicero, Aristotle and Quintilian. "It sounds heavy, but it's not," says Garner, who describes Quintilian, a Roman rhetorician who wrote volumes on oratory nearly 2,000 years ago, as "Justice Scalia's new hero." 

Scalia suggested the book's first working title, "May It Please the Court," Garner says, but then nixed it because it has been used for several other works (including Peter Irons' compilation of taped oral arguments, which upset the Court when first published in 1993.)   Now, also at Scalia's suggestion, the projected title is "Making Your Case: The Art of Persuading Judges."  Garner says the publisher will be West.

This new book will be a must-read for all lawyers who file papers in the Supreme Court and probably all serious legal advocates.  And the snarky blogger in me cannot help but respond with a few questions in reaction to this article, such as (1) Why is Justice Scalia madly busy writing a book instead of writing opinions this time of year? and (2) Will his book include a chapter entitled "The Art of Persuading Clerks in the Cert. Pool"?

November 26, 2007 at 07:06 PM | Permalink


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If you want to impress this Court all you need to do is pay your Federalist Society dues. It'll even lead to you getting a nice cushy job, just ask Scalia, Olson, Alito, Thomas, Meese, Bork, Gale Norton, Spencer Abraham, Ashcroft, and John "Tourture is Cool" Yoo.

Posted by: dweedle | Nov 27, 2007 10:27:30 AM

how about less time writing and more time deciding cases.....

Posted by: | Nov 27, 2007 11:48:12 AM

If you want to impress this Court all you need to do is pay your Federalist Society dues. It'll even lead to you getting a nice cushy job, just ask Scalia, Olson, Alito, Thomas, Meese, Bork, Gale Norton, Spencer Abraham, Ashcroft, and John "Tourture is Cool" Yoo.

Each of those people has accomplished much more than just writing a check. Bork, Meese and Scalia were well-known and highly regarded before the Federalist Society even existed.

Posted by: | Nov 27, 2007 5:29:47 PM

Being “highly regarded” is a matter of perspective. Membership in the Federalist Society, by itself, won’t help. But it will give you the ability to tell other people your feelings and perhaps give you a chance to think that you are smart.

Are these guys good lawyers? Who knows.

Bork certainly is not. It is hard to tell with Olson, since he had a “plum” job in the administration and might not really have done all the hard work that lawyers are accustom to doing. But, I will give him credit: he is a good lawyer.

Unfortunately, a lot of things in the legal profession are a matter of perspective. For example, there is no objective way to tell whether one school is “better” than another. “Reputation” and “prestige” (two self-fulfilling concepts) are all we have to go on. Nevertheless, many firms and agencies will not hire people from low-ranked schools. Many non-lawyers will not date people from those schools thinking that they are morons.

Indeed, in my experience, Federalist Society membership is a way that people that went to lesser schools could rehabilitate themselves and get a chance to convince the people you mentioned above that they are “down” with the project and therefore smart.

Does membership in the Federalist Society mean you will win? Doubtful. Anyone can join the Federalist Society, including people with low LSAT scores that go to schools with minimal prestige (i.e. under 40% of the graduating class goes on to work at large law firms).

Perhaps what you are trying to argue is that this court is more receptive to a larger role for government (which most members of the Federalist Society, in their heart of hearts, seem to love as it gives them a chance to assert their power over others). But, I don’t think you need to be a member of the Federalist Society to want power.

Posted by: S.cotus | Nov 28, 2007 11:27:28 AM

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