>> Bad Writing: Lawyers And Judges Aren’t The Only Ones Guilty

Bad Writing: Lawyers And Judges Aren’t The Only Ones Guilty

By Judge Mark P. Painter

Each year, the journal Philosophy and Literature conducts a bad writing contest. It invites readers to send in examples of “the ugliest, most stylistically awful” sentences in academic writing. Here is one of two recent winners:

The move from a structuralist account in which capital is understood to structure social elations in relatively homologous ways to a view of hegemony in which power relations are subject to repetition, convergence, and rearticulation brought the question of temporality into the thinking of structure, and marked a shift from a form of Althusserian theory that takes structural totalities as theoretical objects to one in which the insights into the contingent possibility of structure inaugurate a renewed conception of hegemony as bound up with the contingent sites and strategies of the rearticulation of power.

The reading score of this 94-word gem is exactly 0 percent. The same is true of this 55-word masterpiece of obfuscation:

If, for a while, the ruse of desire is calculable for the uses of discipline soon the repetition of guilt, justification, pseudo-scientific theories, superstition, spurious authorities, and classifications can be seen as the desperate effort to “normalize” formally the disturbance of a discourse of splitting that violates the rational, enlightened claims of its enunciatory modality.

The first excerpt is from someone who is a full professor at Stanford, while the second was written by a full professor at the University of Chicago.

And lest you think these contest winners are isolated examples, I perused online some other “scholarly” writing. As with legal writing, bad examples are not hard to find.

This brings me back to the question of close reading, which I don’t see as a matter of fidelity to texts but rather as an attempt to surface the contradictions and struggles with which they are marked – in this case, again, the long and still ongoing struggle that today’s liberalistic discourses conduct against historical materialism and scientific socialism.

This example is a 55-word sentence, but it gets a readability score of 10 percent. Wow! Amazon.com tells us that the worthy author is an adjunct English instructor at Onondaga Community College in Syracuse, N.Y. But with the publication of this book of indecipherable writing, he will surely be promoted – perhaps to Stanford or Chicago.

Another random example brings us back to 0 percent readability:

In its reference to the historical images that circulate as floating signifiers in the condition of postmodernity, this story suggests that we attend to the consumption of commodified culture and recognize the signifying politics that embrace mass-media forms – concerns that are central to any analysis of the cultural characteristics of postmodernism.

When compared to the academic sophists above, even this mess of legalese doesn’t seem too bad:

Based on the findings and conclusions set forth with respect to each of the four areas of primary concern discussed above, the facts disclosed through our preliminary investigation do not, in our judgment, warrant a further widespread investigation by independent counsel and auditors.

But it is – it is an unreadable 43 words and scores 11 percent readability. And remember what a legislature is capable of:

If the agency determined that the petitioner is an adopted person, if the department of health informed the agency either that the file of releases does not contain a release or releases filed by one or both of the petitioner’s biological parents that authorize the release of identifying information to him and does not contain a release or releases filed by any biological sibling that authorizes the release of specified information to him or that the file of releases contains at least one such release but a withdrawal of release has been filed that negates each such release, if the agency did not inform the court that it had determined that one or both of the petitioner’s biological parents as indicated on the petitioner’s original birth record were deceased, and if the court did not determine that one or both of the petitioner’s biological parents as indicated on that record were deceased, the judge shall order that the petition remain pending until withdrawn by the petitioner and order the department of health to note its pendency in the file of releases according to the surname of the petitioner as set forth in his original birth record; shall inform the petitioner that he is an adopted person and, if known, of the county in which the adoption proceedings occurred; shall inform the petitioner that information regarding his name by birth and the identity of his biological parents and biological siblings may not be released at that time because the file of releases at that time does not contain an effective release that authorizes the release of any such information to him; and shall inform the petitioner that, upon the subsequent filing of a release by or the death of either of his biological parents, or the subsequent filing of a release by any of his biological siblings, the petition will be acted upon within thirty days of the filing in accordance with division (E) of this section.

That’s a 326-word sentence – and we’re back to 0 percent readability. Remember, sentences of more than 35 words are not readable (the exception – lists). Keep your sentences to an average of 18 words. Of course, even that wouldn’t save the readability of these academic writing examples. They are not written to be read – they are written to glorify the writer. And they are willfully obscure. At least when we lawyers are obscure, it’s not usually willful.


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 10 years, after 13 years on the Hamilton County Municipal Court. He has served as an Adjunct Professor at the University of Cincinnati College of Law since 1990. Judge Painter is the author of five books, including The Legal Writer: 40 Rules for the Art of Legal Writing. The book is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing, and will give his six-hour legal writing seminar on March 4 in Charleston, W. Va., March 25 in Dayton, Ohio, April 28 in Cleveland, May 6 in Indianapolis, June 16 in Louisville, Ky., and June 17 in Lexington, Ky. Contact him through his website www.judgepainter.org.