WRITING GUIDELINES:

GENERAL PRINCIPLES & RULES1

Professor David G. Post2

Beasley School of Law, Temple University
Last Revised: August, 2012

There is nothing more important in the practice of law than your ability to put together
quality written work. I’m happy to help you work on your writing, but please be forewarned:
Writing is difficult, for everyone – at least, everyone I know (or know of) who does it well. If
you think you can produce top-quality written work without pain and hard work you are either (a)
incredibly gifted or (b) mistaken.

Please read these guidelines through carefully. They are divided into “general principles”
and “rules.” The former are for you to think about; the latter are for you to obey, blindly if
necessary. I will expect, when reading your drafts and other written work, that you have actually
done – not “thought about doing,” or “appreciated the value of doing,” or “wondered what it
would be like to be doing,” but actually have done – the things I ask you to do in what follows. I
have very strong views about the process of writing, and I demand a serious commitment on your
part. Please ask yourself, after you have read through the following, whether you are prepared to
do what I’m asking you to do. If not, please feel free to reconsider working with me; I will not be
offended, and we will both be spared considerable future unhappiness.

I. GENERAL PRINCIPLES

1. Good prose is like a windowpane.

2. Impersonate your reader.
3. Your language becomes clear and strong not when you can no longer add, but when you
can no longer take away.
4. Read the cases. Read more of them. Read the ones you have read over again. Repeat.
5. You will not learn to write well by talking – to me, or to anyone else – about writing;
you will learn to write well by writing.
6. Good legal writing is persuasive writing. A good paper or article provides an answer to
a question (or related questions), and persuades the reader that the answer(s) are the best
ones available. It is not a “book report.”
7. Give yourself time to revise, and to revise again.
8. There is, unfortunately, no such thing as an “A for Effort” when it comes to written
work.
9. Everything you put on the page matters.

**********

1
This is distributed under a Creative Commons Attribution License (ver 2.5, available at
http://creativecommons.org/licenses/by/2.5/. Please copy, redistribute, and reuse.
2
Comments always welcome: [email protected].
Writing Guidelines – David Post
August, 2011
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1. “Good prose is like a windowpane” [George Orwell, “Why I Write”]

The point of legal writing is not to make the simple complicated – for example, by using
lots of impenetrable phrases, long sentences, and big words, or by continually reminding the
reader that “it is not entirely clear, but, . . .” or that “courts have left this area very uncertain . . .”
or the like. The point of legal writing is to make the complicated simple. Do not be afraid of
simplicity. Though we have all been taught that simplicity is a sign of stupidity, it is not. You
want your reader to say, after having read your brief or your memo or your article, something
like: “Well, that wasn’t very hard.”

A windowpane is doing its job well when it is transparent, allowing the viewer to see,
clearly, whatever is on the other side. Good prose is doing its job well when it is transparent,
allowing the reader to see, clearly, whatever is on “the other side.”

What’s on the other side? Your mind: your ideas, your opinions, your arguments.

This presents a problem. If your prose is like a windowpane, then, as Orwell put it, “when
you make a stupid remark its stupidity will be obvious, even to yourself.” Often, when putting
together written work, you will think to yourself: “My ideas and thoughts are a jumbled-up mess.
I don’t have any sort of ‘argument’ about why so-and-so exposes you to liability for such-and-such
. . . I don’t want my prose to be like a windowpane, because then the reader will see just how
confused I am. ”

This is an understandable reaction, but it is to be avoided at all cost. Being confused about
the law is no sin; the law is very, very confusing, certainly when you are first learning it and even
after you’ve been at it for many years. The law is full of simple questions –

“Would I be liable for copyright infringement if I were to download a photograph of

President Obama from the Philly.com website and display it on the screens in my classroom?”

that are actually quite complex, requiring an understanding of complicated statutory provisions,
caselaw that may be conflicting or contradictory and that in any event never seems to quite answer
the precise question being asked, etc. Whenever you are presented with questions like that, your
initial thoughts and ideas are likely to be something of a jumbled mess; it is to be expected, and it
happens to all of us.

[It’s especially annoying because it seems that the more you know about a subject, the
more (not less) complicated it gets, and the more difficult it becomes to answer simple questions.
If you don’t know much about copyright law, you don’t even realize how complicated the question
I posed above actually is.]

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So when you begin work on your paper, with some question(s) about the law in front of
you (see #6 below), your thoughts and ideas are probably pretty jumbled up; you won’t have
anything resembling a clear argument in your head, or even a clear idea of what such a thing would
look like.

That’s not the problem – we all start there; it is an inevitable part of the process of trying to
master very complicated material. The problem arises if you let that dissuade you from writing
whatever it is you are writing as clearly as you possibly can. If that exposes the disorder in your
mind, so be it; one of the functions of writing is to help you figure out what it is that you don’t
understand (so that you can go out and do research and try to understand it).

You have to want to write clearly if you are going to learn how to do it. Start by trying to
make every sentence say exactly what you want it to say.

2. Impersonate your reader.

There is one skill that is critical and on which all others, in my opinion, depend: the ability
to read your own work as it appears to a reader. The process of writing well consists of (a)
writing, (b) reading what you have written from your reader’s perspective, and (c) revising what
you have written so that it is clear to your reader. Over and over again.

It sounds easy enough; in fact, it is very difficult. You have to learn how to put yourself in
the mind of your reader (who may know nothing, or next-to-nothing, about the subject matter of
your paper or article), and to ask of your own work what the reader will ask: Does what I am
reading make sense? What exactly is the author trying to say here? Am I learning something as I
read?

To do that, you must, first of all, know (or decide) who your reader is, because you can’t
answer the question “Is what I have written clear?” unless you can answer the question: “Clear to
whom?” Your explanation of why section 512(c) of the Copyright Act covers dissemination of
decryption software, or why business method patents do not serve the purposes underlying the
Patent Act, or why the Copyright Royalty Tribunal is unconstitutional under the doctrine of
separation of powers, etc., will be very different, depending upon whether you are explaining that
to (a) a judge on the Federal Circuit, (b) the Chief Systems Engineer at Comcast, (c) a reader of
the Philadelphia Inquirer, (d) a high school student, (e) a partner at your law firm who specializes
in international tax law, (f) a partner at your law firm who specializes in patent prosecution, etc.

Here’s a sentence that might appear in your paper:

“Like much of the DMCA, sec. 512(c) provides ISPs with a safe harbor against copyright
infringement claims for monetary damages.”

That sentence is either perfectly clear, or complete gibberish; I can’t tell which it is (and
neither can you) unless we know who the reader is, because whether or not it is clear depends on
what the reader has in his or her head at the moment he/she encounters the sentence. What’s the
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DMCA? Who/what are “ISPs”? What’s a “safe harbor”? What’s copyright infringement? What
are “claims for monetary damages”? Either (A) the reader had some idea what these things meant
before starting your paper, or (B) you have explained earlier in your paper what they mean, or (C)
the sentence is a failure and needs to be revised because the reader does not know what it means.
WRITING WELL MEANS SATISFYING YOURSELF THAT EITHER (A) OR (B) IS TRUE, FOR EVERY
SENTENCE IN YOUR PAPER.

Reading your own work from your reader’s perspective means learning how to clear your
head of everything you have learned about the subject matter from having worked on the paper.
This, too, is difficult, but indispensable. Your reader does not know what you know, has not read
what you have read, has not been surrounded by articles about this subject matter for weeks or
months the way you have, etc. If you keep all of that stuff in your head as you read over what
you have written, you may conclude that your writing makes sense and is reasonably clear (to
you) when it is actually very confusing to your reader (who does not have any of that in his/her
head).

[See Rule 1]

Developing an ability to edit your own work in this way is the most important thing you
will get out of your writing project. You are the one editor who will always be at your own
disposal throughout your career, the one person who will always be available to read your work
and to comment upon it, to help you see which arguments are strong and which are weak, which
sections make sense and which do not. To put it differently: when you begin your project, you’re
focused on my editorial comments; by the time you’re finished, I want you to be focused on your
own.

3. “Your language becomes clear and strong not when you can no longer add, but when
you can no longer take away.” [Isaac Babel]

Less is more. Say what you need to say. Eliminate unnecessary words. Get to the point.

Here’s an excerpt from a student paper:

In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
defendant was subject to the personal jurisdiction of the court. In so ruling, the court found that
both prongs of the personal jurisdiction test had been met. First, the court found that the
defendant fell under the District of Columbia's long arm statute, D.C. Code § 13-423, and was
therefore subject to the jurisdiction of the court. Second, the court found that the defendant
possessed the minimum contacts with the District of Columbia necessary for the exercise of
personal jurisdiction to be constitutional.

It’s not bad, by any means, but here’s my edited version:

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In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
defendant was subject to the court’s personal jurisdiction. The defendant satisfied both prongs of
the personal jurisdiction test: he fell within the District of Columbia's long arm statute, D.C.
Code § 13-423, and possessed the “minimum contacts” with the District of Columbia required for
the constitutional exercise of personal jurisdiction.

These are the changes I made in going from the first to the second version:

In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
defendant was subject to the court’s personal jurisdiction of the court. In so ruling, the court
found that. The defendant satisfied both prongs of the personal jurisdiction test had been met.
First, the court found that the defendant : he fell underwithin the District of Columbia's long arm
statute, D.C. Code § 13-423, and was therefore subject to the jurisdiction of the court. Second,
the court found that the defendant possessed the “minimum contacts” with the District of
Columbia necessaryrequired for the constitutional exercise of personal jurisdiction to be
Constitutional.

The original passage has 99 words; the revised version has 66 – exactly 33% fewer. Not
coincidentally, the revised version is also better – more direct, clearer, easier to follow.

4. Read the cases. Read more of them. Read the ones you have read over again. Repeat.

Students hardly ever do the amount of case law research that is required for a good paper.
The cases, however, are where the law is – not in the law review articles, not in the treatises, not
in the trade publication, not in the ALR annotations, but in the cases and other primary material
(statutes, treaties, constitutions). Secondary sources can be enormously helpful – they can point
you to the cases that you need to read, and sometimes they can help you to understand the cases
you have read. But they should never be used as substitutes for the primary material on which
they’re based.

Learning how to read the cases critically – identifying their strengths and their
weaknesses – will help you become a better writer, because it will help you learn how to read
your own work critically. As you read the cases, always ask yourself: What question (or series of
questions) is the court answering? How does it get to the answer? What is the answer? Are you
persuaded that it got the right answer? Are you actually learning something about whatever it is
the court is talking about? Why, or why not?

Reading judicial opinions is also valuable because it helps you soak up a way of talking
and writing about legal questions – customary phrasings, ways of talking about and using
precedent, and legal doctrine, and the like. If you have read lots of opinions, you are much less
likely to write a sentence like the one I’m looking at right now, from a student paper:

“Personal jurisdiction can no longer be missing ‘because the defendant did not physically
enter the forum state’. Burger-King Corp. v. Rudzewicz. . . . ”

I have never encountered any judicial opinion (or any other document, for that matter)
that referred to whether or not personal jurisdiction was “missing.” It’s just not a word that is

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used in connection with personal jurisdiction. What the author of this sentence has conveyed to
me is that he/she has either (a) not read very many judicial opinions dealing with the question of
personal jurisdiction, or (b) has not been paying much attention to those s/he has read.

5. You will not learn to write well by talking – to me, or to anyone else – about writing;
you will learn to write well by writing.

Talking about writing is like talking about carpentry, or about playing the piano, or about
riding a bicycle – interesting, perhaps, but of little help in actually learning how to do any of these
things. To learn how to do them, you have to do them, over and over and over. It’s called
“practicing.” It’s the same with writing; actually practicing the skill you are trying to master is
almost always more useful than talking about it. If you’re trying to learn how to write well, write
more – more outlines, more case summaries, more issue statements, more drafts of papers, more .
. . Write (more) just for yourself, and write (more) for others.

I’m always happy – really – to talk to you about your project. But talking to me is much
less valuable than you (and most students) think it is. If you have questions about your writing
project, by all means come in and see me; but before you come in to talk, write down what you
want to talk about. A sentence, or a paragraph, or an outline, describing your thoughts, or the
question(s) you have, will help a great deal. That will not only give you valuable practice in the
art of writing, but I guarantee you that it will make our subsequent conversation much more
productive.

[See Rule 2]

6. Good legal writing is persuasive writing. A good paper or article provides an answer to
a question (or series of related questions), and persuades the reader that the answer(s) are
the best ones available. It is not a “book report.”

A good paper contains (a) a specific question (or set of questions), (b) an answer to that
question(s), and (c) an argument in support of that answer.

1. The question

You will not write a paper “discussing,” or “analyzing,” or “summarizing,” or

“examining,” some aspect of intellectual property law or Internet law or Constitutional law or . . .
You will write a paper that will pose, and then propose an answer to, a specific question (or set of
questions) about intellectual property law or Internet law or Constitutional law or . . ..

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The absence of a good question is far and away the most common flaw in student writing
– and it is generally fatal. A good question provides a paper with structure and purpose; it lets
you make the decision “what do I leave in and what do I leave out?” [Answer: you leave in
everything the reader needs to understand the question and your answer to it, and you leave out
everything else.] “How much ‘background’ do I need to include?” [Answer: As much as the
reader requires to understand the question and your answer to it.] “Of the zillions of cases out
there, which ones should I read?” [Answer: Those that bear on the specific question you’re
trying to answer.] Etc.

Coming up with a good question is not a simple task, to be sure; but if you fail to do so,
you will not have a good paper. Here are some randomly-chosen good ones:

Whether § 512(c) of the Copyright Act shields a website owner from liability for
the dissemination of decryption software.

Whether software patents are invalid under the Bilski test for patentable subject
matter.

Whether (and under what circumstances) foreign website owners are subject to
personal jurisdiction in U.S. courts.

Whether (and under what circumstances) foreign website owners can raise the
First Amendment as a defense to prosecution under the Online Gambling
Enforcement Act.

Whether “browsewrap” licenses are enforceable under the Uniform Commercial

Code and/or the Uniform Electronic Transactions Act.

Whether §230(c) of the Communications Decency Act shields social networking

sites from liability for invasions of privacy.

Whether the use of a competitor’s trademarked name in a website “meta-tag”

constitutes a sufficient “use in commerce” to subject the user to liability under the
Lanham Act.

And here are some bad questions:

What effect will the enforcement provisions of the new Anti-Counterfeiting Treaty
have on illegal file-sharing?

Should international patent law make it easier for developing countries to

distribute patented medicines?

Is “cyber-bullying” a serious social problem, and, if so, what should be done about
it?
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What makes the good questions good? First, you can answer them using the tools of
legal analysis and legal argumentation. I don’t have to know what the answer to any of them
might be to know, just by looking at them, that they can be answered using legal analysis and legal
argumentation – that you can, by pulling together the statutes and cases and administrative
regulations and the like, construct an argument that e.g., §230(c) of the Communications Decency
Act does (or doesn’t) shield social networking sites from liability for invasions of privacy. You’ll
have a lot of explaining to do – what does §230(c) say? What kinds of liability for invasions of
privacy could a social networking site face? How is “social networking site” defined? Etc. But
those are all questions of a sort we, as lawyers, should be able to answer.

Second, they’re good questions because they are “descriptive,” rather than “normative” –
that is, they focus on what the law is, not on what the law should be. I am not, frankly, very
interested in your opinion about whether § 512(c) of the Copyright Act should shield website
owners from liability for dissemination of decryption software, or whether cyber-bullying should
be curbed, or whether browsewrap licenses should be enforceable, or whether social networking
sites should be immunized from liability for privacy invasions, etc. – at least, I’m not interested
until you first explain to me what the law is, and you show me that you understand what the law
is.

Third, they’re good questions because they are all rich and complicated. A good question
is one with good arguments that can be made on both sides and a deep ocean of relevant caselaw
and commentary from which you can draw those arguments. Reading over the list of questions
above, there’s no way for you to tell whether they are, or are not, “good questions” in this sense.
But I can tell – because of my familiarity with the subject matter involved. That’s one of the most
important roles I (or other faculty advisors) play in this whole process: we can help you decide
whether you’ve got a good question or not. If, say, the Supreme Court has just decided, last
term, the question "whether the use of a competitor’s trademarked name in a website ‘meta-tag’
constitutes a sufficient ‘use in commerce’ to subject the user to liability under the Lanham Act,”
that would probably not be a good question, because it would have too straightforward an answer
(i.e., whatever the Court declared the answer to be).

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How do you find a good question? There’s no simple answer to that. Start with some
general topic you find interesting and engaging – privacy on social networking sites, enforcement
of international arbitration awards in US courts, copyright liability for web hosting services, etc.
One way to find good questions is to try to find legal issues that people are actually fighting
about. Find a few recent articles on the general topic and read them over, looking for areas of
disagreement and argument and conflict among the commentators and for citations to recent
cases. Then, read the cases that seem to be the focus of the commentaries, asking yourself: What
questions are the courts answering? What questions are they leaving for later, or ignoring, or
missing? Are their arguments persuasive? Look for dissenting opinions – what are the judges
disagreeing with one another about, and why? Another idea: Find a good reporter service (e.g.,
US Law Week, or BNA’s “Electronic Commerce Law Report,” or any of the other specialized
reporters that has good summaries of recent cases – talk to the folks in the Library if you’re not
familiar with any of these), looking for issues that have arisen in the cases recently (and on which
there might be a difference of opinion among different courts) and/or issues that have been left
open in the decided cases.

2. The answer. Now that you have your question, you might think that your job is the
find “the answer” to the question. Not so! Or, at least, not exactly. As noted above, having a
“good” question means having a question on which there are differences of opinion as to what
“the answer” is. “Does section 512(c) of the Copyright Act covers the dissemination of
decryption software?” You can argue that it does, and you can argue that it doesn’t – remember,
that’s what makes it a good question. There’s no “answer” hiding somewhere out there that
you’re trying to find; there are multiple, mutually contradictory answers to the question, and
what you’re trying to do is to put together the arguments for one of them (and against the others)
in a coherent and persuasive manner.

Most legal writing is like this: briefs, judicial opinions, memoranda of law, etc. They are
designed to persuade the reader of something by the force of argument(s). If you try to find “the
answer” to the question, you’ll inevitably end up producing something along the lines of: “It’s
very complicated, and messy, with arguments for and against, and I really don’t know what ‘the
answer’ is.” That’s not very useful for the reader. I don’t need to read your paper to know that
the law surrounding section 512 and decryption software is complicated and messy. You need to
help the reader make sense of that mess, and the best way you can do that is not to “summarize”
the law but to argue for a position in regard to the law.

So: once you have your question, you take a position on it, and then your task is
persuade me – your reader – that your position is the correct one. Marshal the relevant legal
arguments – from the statutes, the cases, the commentary (normally, in that order) – that make
your case.

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Choose one side or the other – it doesn’t really matter which. Make the argument that
section 512(c) does cover the dissemination of decryption software. If, as you go forward, you
find the opposing arguments too strong to overcome, change your answer. This is a luxury you
have when writing research papers that you don’t have when working for clients. You never
want to say to your client (unless you have to): “Well, I’ve finished my research and, lo and
behold, I have discovered that the stronger argument is that you are, after all, liable under section
10(b) of the Securities Act!” But with a research paper, you may start out with some thesis –
e.g., that browsewrap licenses are enforceable under the UETA – but then conclude, after doing
research on the question, that much stronger arguments exist for the opposite proposition. That’s
fine – you’re free to turn around and write that paper instead.

3. The argument. So now you have your question, and your answer to the question
(otherwise known as your “thesis statement”): Section 512(c) of the Copyright Act does not
shield a website owner from liability for the dissemination of decryption software. Now, persuade
me.

One of the errors that beginning writers make frequently is that they begin actually writing
(as opposed to “doing research”) much too late in the process. (A related error is that when they
do begin writing, they begin with the “Introduction”; see below). Remember: you’re not trying to
figure out the answer, you’re trying to marshal the arguments. You don’t have to wait until
you’ve got it “all figured out” – indeed, if you wait until you’ve got it all figured out, you’ll never
even begin to write, because you’ll never have it all figured out. That’s the nature of legal
problems.

You can’t construct your argument in your head and then spill it out onto the page. It
doesn’t work like that; unless the question you’ve posed is a very simple one, you are not going
to be able to the answer without putting your argument down on paper and reading it through to
see if it holds water. Start by trying to state the propositions that will make your argument:

Thesis: Section 512(c) of the Copyright Act does not shield a website owner from liability
for the dissemination of decryption software.

1. Section 512(c) only shields website owners from liability for dissemination of third-
party “speech.”
2. Decryption software is not speech.
3. Therefore, Section 512(c) of the Copyright Act does not shield a website owner from
liability for the dissemination of decryption software.

Now, all you have to do is persuade the reader that #1 and #2 are correct. Go do that; put
that argument together, using the statutory language, caselaw, and secondary sources as
necessary.

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[If you do that, you’ll find out that it’s not that simple; you’ll need to break #1 and #2
down into smaller pieces if you are to persuade me: what does 512(c) actually say? Where does
it contain a limitation in regard to “speech”? What is “decryption software”? Why is it not
“speech”? Etc. But that’s the point of the process.]

7. Give yourself time to revise, and to revise again.

Writing well is often painful; it is always difficult and time-consuming. It will always take
longer — usually a lot longer — than you think (or than you’d like) to get an outline or a decent
draft together, let alone your final product. You must commit to spend however much time it
takes to produce a quality product. You need to revise your work as necessary so that it makes
sense to that reader. You don’t get to stop when you have completed one, or two, or four, or any
fixed number of revisions of your paper; you get to stop when what you have written is clear to
your reader (see #8, below). If that takes five, or fifteen, revisions, that’s what it takes.

When asked whether she enjoyed writing, Dorothy Parker replied “No –
I enjoy having written.”

When asked whether he found writing difficult, Red Smith replied:

“Not at all – you just sit down at the typewriter and open a vein.”

8. There is, unfortunately, no such thing as an “A for Effort” when it comes to written
work.

You don’t get any prizes for the number of revisions you’ve done, the amount of sweat
you poured on the page, or the difficulties you overcame to produce your paper; you get prizes
for expressing yourself clearly. The reader doesn’t know, and the reader doesn’t care, about
anything other than what appears on the printed page. “I would have added in the additional
cases and fixed the mess in Section III, but my car broke down on Monday and my uncle’s family
has been staying in our house this week, and ...” won’t cut it.

9. Everything you put on the page matters.

Everything – every word, every bit of punctuation, every decision to begin a paragraph
with one sentence rather than another, every decision whether to use “shall” or “should” or “may”
or “might,” or whether to use “since” or “because” or “thus” or “moreover” – matters. That may
or not be true in other fields, but it is true in ours. This is less an objective fact than an attitude,
an attitude that may or may not come naturally to you but which I urge you to start cultivating.
Care about the words you put down on the page. Give a damn about them. They reflect who you

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August, 2011
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are as a lawyer, and they are often the only reflection of who you are as a lawyer that your
professional colleagues will get to see.

When Robert Frost’s Collected Poems was originally published, it contained these familiar
lines (in “Stopping by Woods on a Snowy Evening”):

The woods are lovely, dark, and deep

But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.

In fact, what Frost had actually written was:

The woods are lovely, dark and deep

But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.

Adding that comma after “dark” changes – subtly, but critically – the meaning of that
stanza.

We are not poets, and the texts we read and write as lawyers are, heaven knows, not
poetry. But consider the following: The Copyright Act of 1874 granted copyright protection to
“any engraving, cut, [or] print,” and it provided that

“. . . in the construction of [this] Act, the words ‘engraving,’ ‘cut,’ and ‘print’ shall be
applied only to pictorial illustrations or works connected to the fine arts.”

Question: What about “pictorial illustrations” that were not “connected to the fine arts”?
Are they covered by copyright? That depends on whether “connected to the fine arts” modifies
both “pictorial illustrations” and “works,” or “works” alone. See Bleistein v. Donaldson
Lithographic Co., 188 U.S. 239 (1903) (Holmes, J.).

Note how the meaning of this phrase would change if there were a comma after “pictorial
illustrations”:

“. . . in the construction of [this] Act, the words ‘engraving,’ ‘cut,’ and ‘print’ shall be
applied only to pictorial illustrations, or works connected to the fine arts.”

And note how the meaning would change if there were commas after both the words
“pictorial illustrations” and “works”:

“. . . in the construction of [this] Act, the words ‘engraving,’ ‘cut,’ and ‘print’ shall be
applied only to pictorial illustrations, or works, connected to the fine arts.”.

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The 1874 Copyright Act is much less beautiful than “Stopping by Woods on a Snowy
Evening.” (And section 512(e) of the 1976 Copyright Act is even less beautiful than that – see
the Appendix). The moral of the story, however, is that in legal prose, as in poetry, everything
you put on the page matters. If you don’t start cultivating that attitude towards your own
writing, you will never learn to write well.

If you are not a good proofreader, find someone who is and ask him/her for help. The
details matter – not only because they can affect the meaning of what you have written, but also
because your attitude towards the details gets communicated to your reader.

Typographical errors, for instance, matter. Not because they necessarily affect the
meaning of what you have written, for, often, they do not; it is easy enough for the reader to
realize you meant “ideas” when you wrote “ideax,” or that you meant “the Copyright Act” when
you wrote “the Copyrihgt Act,” or that you meant to write “the employer’s liability for
monitoring employee emails depends upon its status under section so-and-so . . . ” when you
wrote “the employer’s liability for monitoring employee emails depends upon their status under
section so-and-so. . . ” etc. But they matter because they communicate a lack of attention to your
own writing; surely, if you had seen the word “ideax,” you would have corrected it, so the fact
that it remained in your document suggests that you didn’t read it yourself. And if you didn’t
read it, why should I?

Writing Guidelines – David Post

August, 2011
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II. RULES

1. Before you submit anything to me – an outline, a draft, whatever – read it over, from
start to finish, in one sitting, as if you were the person for whom it is being written.
2. When you come to speak to me about your project, bring something in writing (or, if
possible, email it to me in advance).
3. Read your work aloud.
4. Write your Introduction LAST.
5. Quote first; explain later.
6. Use topic sentences.
7. Do not thump on the table.
8. Eliminate the passive voice from your papers.
9. Avoid unnecessary introductory and transition words.
10. Watch out for “as explained below” and “as explained above.”
11. Do not use “since” when you mean “because.”
12. Be wary of “because”; it often reflects a failure of organization.
13. Use parallel structure.
14. If you’re saying the same thing, or referring to the same thing, use the same words.

**********

1. Before you submit anything to me – an outline, a draft, whatever – read it over, from
start to finish, in one sitting, as if you were the person for whom it is being written. Satisfy
yourself that your reader will not be confused by what you have written (or revise as necessary).]

2. When you come to speak to me about your project, bring something in writing (or, if
possible, email it to me in advance). I’m always happy to talk to you about your project. To
enter my office, however, you need a ticket – which consists of something in writing. It can be
anything from a one sentence description of the question you’d like to ask me, to a short
paragraph describing your confusion in researching a particular question, to an outline, or a full
draft – but it must be in writing.

3. Read your work aloud. “Writing,” Lawrence Sterne wrote (in Tristram Shandy), “is
conversation.” He was correct. If your paper, or outline, or memo, or letter, or brief, or . . . does
not make sense to a listener, chances are very good that it won’t make any sense to a reader, and
vice versa. Read your work aloud – to yourself if need be, or to someone else if possible. Many
of your work’s shortcomings will become evident when you do that – that’s the good news.
Learning how to write well is learning how to identify those shortcomings, and to fix them. If you
can’t even find them, you can’t fix them.

4. Write your Introduction LAST. Your paper will, usually, consist of three basic parts: an
Introduction, an Argument, and a Conclusion – in that order. You know what your main
conclusion is going to be: that’s your thesis statement (“Section 512(c) of the Copyright Act
does not shield a website owner from liability for the dissemination of decryption software”).
Writing Guidelines – David Post
August, 2011
Page -14-
Now, work on the argument. That’s the hard part. When you start, you don’t have a very good
idea of what your argument looks like, and therefore you can’t possibly write an Introduction
because the function of an Introduction is to tell the reader what’s coming, and you don’t really
know yet what’s coming.

Once you know what your argument is going to be, it is easy to write an Introduction;
before you know what your argument is going to be, it is very difficult –almost impossible – to do
so.

5. Quote first; explain later. The actual words used in the statutes or the opinions under
discussion always matter. Do not tell your reader what you think a statutory section means until
you have given him/her the actual language in the statute; don’t venture to say what you think a
court meant until you first tell me what it actually said. If the statutory language (or the court’s
opinion) is clear, then it’s clear, and nothing more need be said. If it needs explanation and
interpretation (as it almost always does), explain and interpret – after you tell me what the words
are that you are explaining and interpreting. I don’t want to know your opinion about the statute
or the case – I want to know (a) what it says, and (b) what it means.

6. Use topic sentences. Each paragraph in your paper should make one point, and each
paragraph should begin with a declarative sentence stating that point. These “topic sentences” are
enormously important. Read your paper over reading only the first sentences in each paragraph.
Ask yourself: If you knew nothing else about this subject matter, would this reading of the paper,
topic sentence by topic sentence with nothing else, have made sense to you? If the answer is
“no,” you’re not finished.

7. Do not thump on the table. Eliminate the phrases “it is clear that . . . .,” and “it is obvious
that” and all similar phrases, along with the words, “clearly,” “obviously,” and “undoubtedly,” and
all their close cousins, from your vocabulary. If something is obvious, then there is no need to say
so – the reader will already see it, because you have made it so obvious. If it is not obvious,
saying that it is will not make it so. Ninety-nine times out of 100, you use these words or phrases
as crutches, to obscure the fact that you have not made something clear, or obvious, when you
should have.

8. Eliminate the passive voice from your papers.

Do not say “As the Internet grew, new uses for domain names were found . . .” Tell your
reader who found them (e.g., “As the Internet grew, users found new uses for domain names . . .
.”).
Do not say “The 5-step test for determining likelihood of confusion under the Lanham Act
was crafted . . .” Tell your reader who crafted it ( “The Eighth Circuit crafted the 5-step test for
determining likelihood of confusion under the Lanham Act . . . ”).

Do not say “Where there is no general jurisdiction, the possibility of specific jurisdiction
must be examined.” Tell your reader who must examine it ( “Where there is no general
jurisdiction, the court must examine the possibility of specific jurisdiction”).
Writing Guidelines – David Post
August, 2011
Page -15-
Do not say “The arbitrators’ decisions are enforced by the imposition of monetary
penalties on wrongdoers.” Tell your reader who enforces them (“The CFTC enforces the
arbitrators’ decisions by the imposition of monetary penalties on wrongdoers”)

Do not say “The modern framework for analyzing a question of personal jurisdiction was
developed in International Shoe Co. v. Washington, 326 U.S. 310 (1945).” Tell your reader who
developed it ( “The Supreme Court developed the modern framework for analyzing questions of
personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945)”).

Do not say “ASCAP was authorized to demand payment for the broadcast of copyrighted
works.” Tell your reader who authorized it ( “Congress [or “the FCC,” or “the Communications
Act,” or whomever it was] authorized ASCAP to demand payment for the broadcast of
copyrighted works.”).

Do not say “In this paper, theories of intellectual property protection are discussed”;
indicate who discusses them ( “In this paper, I discuss theories of intellectual property
protection.”)3.

Write so that the reader can tell who the actor is who is performing the action described in
each of your sentences.

9. Avoid unnecessary introductory and transition words. Words or phrases like “Moreover,”
“In addition,” “Furthermore,” “As such,” “Notwithstanding,” “It should be noted that . . .” are
hardly ever useful. Most of the time they get you into trouble. They tend to be inserted when the
logical transition between your sentences or paragraphs makes no sense, and reflects your
desperate hope that by saying “moreover” or “furthermore” you will cover up that unfortunate
failure of organization. If you have two sentences that do not belong together, throwing in an “In
addition” at the beginning of the second sentence will not help. Use these devices very sparingly,
if at all.

10. Watch out for “as explained below” and “as explained above.” These are also signals
that your work is not yet properly organized. What is a reader supposed to do when he/she
encounters the phrase “as explained below” in a paper? Stop reading and go “below” to wherever
you explain what needs to be explained? If something needs to be explained now, explain it now.
If it doesn’t, don’t. Always remember: readers read from front to back, and from left to right; do
not make the reader’s understanding of something depend on something that you say later.

11. Do not use “since” when you mean “because.” When I come across a sentence in a paper
that begins like this:

“Since enactment of the Copyright Act in 1976 …”

I expect what follows to look something like this:

3
All of these examples, as you might have guessed, come from actual student papers.
Writing Guidelines – David Post
August, 2011
Page -16-
“Since enactment of the Copyright Act in 1976, music reproduction technology has
greatly altered the landscape of the music business,” or
“Since enactment of the Copyright Act in 1976, there have been many attempts to revise
the statutory “work for hire” provisions,” or
“Since enactment of the Copyright Act in 1976, copyright law has become a more
important part of legal practice.”

What I do not expect is something that looks like this:

“Since enactment of the Copyright Act in 1976 was part of an effort to balance the
incentives to create and to disseminate copyrighted works, it is important to keep the interests of
authors and publishers in mind when considering statutory provisions.”

I get a little jolt of dissonance when I reach the words “was part of an effort . . .” It’s the
wrong part of speech, and I have to return to the beginning of the sentence to make sense of
what’s written. That’s just a little bit of extra work I have to do as a reader, and it violates a
cardinal rule: never make your reader work hard – harder than absolutely necessary – to
understand what you are saying.

12. Be careful of “because”; it often reflects a failure of organization.

“The license that Joanna executed is not terminable, because it was executed in 1977, and
§ 201(a)(1) only applies to licenses executed after January 1, 1978.”

Notice: this sentence is backwards. It begins with a legal conclusion (the license is not
terminable), continues with a fact (the license was executed in 1977), and ends with a rule of law
(§ 201(a)(1) only applies to licenses executed after January 1, 1978). The use of “because” is
often a tip-off to this problem; when you use the word, make sure that it is not being used to
cover over this kind of mis-organization.

13. Use parallel structure. If you are talking about general and specific jurisdiction and one
paragraph begins, “In order for there to be general jurisdiction, the defendant must have . . . .,”
then begin the next paragraph about the parallel topic (specific jurisdiction) with parallel language:
“In order for there to be specific jurisdiction, the defendant must have . . .” If you tell the reader
that a statutory provision imposes three requirements on defendants, tell the reader what they are
– one, two, and three. Make things simple for your reader.

14. If you’re saying the same thing, or referring to the same thing, use the same words.
You may have been taught otherwise, and encouraged to use diverse phrasing so as to give your
writing variety and color. But for legal prose, that is a serious trap. Once you tell me that § 512
of the Copyright Act protects Internet service providers from copyright infringement claims, if
you later refer to “online service providers,” and later to “Internet access providers,” and later to
“telecommunications providers,” . . . your reader will assume that you’re talking about different
categories; if you weren’t, why would you give them different labels?
Writing Guidelines – David Post
August, 2011
Page -17-
Writing Guidelines – David Post
August, 2011
Page -18-
“A man may take to drink because he feels himself to be a
failure, and then fail all the more completely because he
drinks. It is rather the same thing that is happening to the
English language. It becomes ugly and inaccurate because
our thoughts are foolish, but the slovenliness of our
language makes it easier for us to have foolish thoughts.
The point is that the process is reversible.”

George Orwell, “Politics and the English Language”

Orwell’s Six Rules (from “Politics and the

English Language”:

1. Never use a metaphor, simile or other figure

of speech which you are used to seeing in print.
2. Never use a long word where a short one will
do.
3. It if is possible to cut a word out, always cut
it out.
4. Never use the passive where you can use the
active.
5. Never use a foreign phrase, a scientific word,
or a jargon word if you can think of an everyday
English equivalent.
6. Break any of these rules sooner than say
anything outright barbarous.

Writing Guidelines – David Post

August, 2011
Page -19-
Appendix

Here’s another, much more complicated, statutory illustration of the significance of a

single comma. Section 512(e) of the Copyright Act provides:

“(e) When a public or other nonprofit institution of higher education is a

service provider, and when a faculty member or graduate student who is an
employee of such institution is performing a teaching or research function, for
the purposes of subsections (a) and (b) of this section such faculty member or
graduate student shall be considered to be a person other than the institution,
and for the purposes of subsections (c) and (d) such faculty member's or
graduate student's knowledge or awareness of his or her infringing activities
shall not be attributed to the institution, if--
(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials that are or
were required or recommended, within the preceding 3-year period, for a
course taught at the institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year period,
received more than two notifications described in subsection (c)(3) of claimed
infringement by such faculty member or graduate student, and such
notifications of claimed infringement were not actionable under subsection (f);
and
(C) the institution provides to all users of its system or network
informational materials that accurately describe, and promote compliance
with, the laws of the United States relating to copyright.”

Read it again, carefully. Here’s a little problem of statutory interpretation. Assume that:

(a) Temple University is a “nonprofit institution of higher education” that is a “service

provider” within the meaning of subsection (e);

(b) A faculty member – call him “Professor Post” – is an employee of Temple University
and is “performing a teaching or research function” within the meaning of subsection
(e);

(c) Temple University does not provide “informational materials that accurately describe,
and promote compliance with, the laws of the United States relating to copyright” to
all users of its system, i.e., it does not meet the condition laid down in subparagraph
(C) of the above provision.

The question: Is Professor Post “a person other than the institution” for “the purposes of
subsections (a) and (b) of this section” (whatever subsections (a) and (b) might be)?

The answer is “No.” Why? Because “for the purposes of subsections (a) and (b) of this
section” Prof. Post “shall be considered to be a person other than the institution” only if the

Writing Guidelines – David Post

August, 2011
Page -20-
conditions in sub-paragraphs (A), (B), and (C) are satisfied. Because the condition in sub-
paragraph (C) is not satisfied, Prof. Post shall not be considered to be a person other than the
institution. [If you don’t see that, re-read the section over until you do].

Note what happens if we omit the comma before the word “if” at the end of the first
paragraph. The section now reads as follows:

“(e) When a public or other nonprofit institution of higher education is a

service provider, and when a faculty member or graduate student who is an
employee of such institution is performing a teaching or research function, for
the purposes of subsections (a) and (b) of this section such faculty member or
graduate student shall be considered to be a person other than the institution,
and for the purposes of subsections (c) and (d) such faculty member's or
graduate student's knowledge or awareness of his or her infringing activities
shall not be attributed to the institution if --
(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials that are or
were required or recommended, within the preceding 3-year period, for a
course taught at the institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year period,
received more than two notifications described in subsection (c)(3) of claimed
infringement by such faculty member or graduate student, and such
notifications of claimed infringement were not actionable under subsection (f);
and
(C) the institution provides to all users of its system or network
informational materials that accurately describe, and promote compliance with,
the laws of the United States relating to copyright.”

The answer to the question presented is now “Yes.” Removing the comma has completely
changed the meaning of the subsection. Now, for “the purposes of subsections (a) and (b) of this
section” Prof. Post “shall be considered a person other than the institution” – full stop. The
conditions in sub-paragraphs (A), (B), and (C) apply only to determining whether the faculty
member will be considered to be a person other than the institution for purposes of
subparagraphs (c) and (d). (If you don’t see that, read the section over again – aloud if necessary
– until you do).

Writing Guidelines – David Post

August, 2011
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