Cracking the Official Style in Harvard Law Reviews

The United States Constitution is one of the most famous forms of the Official Style.  Lawmakers and lawyers alike make a living on interpreting this wordy, complex document and presenting it as a code for all American citizens to live by.  While the Constitution is difficult to understand, texts written about it and texts written about law cases throughout history are even more difficult.  I have selected a journal piece from the Harvard Law Review on a case dealing with equal protection to break apart, and to show how it acts within its activity system as it is written in the Official Style.

    Justices in the Supreme Court write opinions (and dissents) on the cases they decide.  These documents are notoriously lengthy; the justices take months out of the year to write them.  They eclipse every aspect of the Official Style.  The webpage for the Harvard Law Review states their objective in the “About” tab: “The journal is designed to be an effective research tool for practicing lawyers and students of the law.”  I have taken this to mean that the articles will, in fact, be directed towards an audience that is assumed to be knowledgeable on law; however, it is to be written in a more understandable way than the Notes, Recent Cases, Recent Legislation, and Book Notes that they are dissecting.  I chose to pick a journal from this source to examine under the scope of the Official Style because I believe many journals from this site tend to be a bit ambiguous in which style they are being written.  The text they cite is from court opinions from prior cases, and is usually very difficult to understand.  The author tries to make these complex ideas more understandable.  The problem with this is that they still write within the Official Style realm.  I would personally consider most journals from the Harvard Law Review to be the on tip of the Official Style.  While they present aspects of it, they still strive to provide clarity.  I believe it is an excellent text to analyze because I will be able to show characteristics of the style in both numerous judges and justices jargonistic quotes as well as in the authors writing.

I will explain the Official Style so you have a better sense of what I am talking about.  The use of it has become overwhelming in modern day society.  While it is easy to spot it is much more difficult to understand.  It is characterized by the text being wordy, indirect, and quite honestly hard to understand.  It seems often as if someone were to open a thesaurus and choose ornate words in a verbose manner to describe a relatively simple concept.  Unfortunately, this style is used quite frequently in contracts and important documents that people would genuinely benefit from understanding.  By writing in the Official Style, some seek to confuse their audience to simply sign a document.  Other times, authors use the style to sound more educated and, well, official.  It was created for the scientific community to sound impersonal and detached.  Don’t get me wrong, the style can be a useful tool to use in certain situations, but one must be able to dissect the meaning out of this passive, complex writing tool if one wants to achieve greatness as a writer.  

The journal that I chose to examine is titled, “Employment Law - Age Discrimination - Seventh Circuit Holds That The ADEA Does Not Preclude § 1983 Equal Protection Claims. Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012).” Yes, the title does seem to scream, “I am complex and difficult to understand!” It has no given author, which is typical of Harvard Law Reviews; it is thought that if you are intelligent enough to be published by Harvard Law you don’t need the satisfaction of seeing your name printed in ink.  I will henceforth be referring to the author as “he” for functionality purposes.  This document can be accessed through the Harvard Law Review database, or at this link: http://www.harvardlawreview.org/media/pdf/vol126_levin_v_ madigan.pdf. According readability-score.com the average grade level is 12.3, the Flesch-Kincaid Reading Ease is 49, and the average words per sentence is 22.2 (analysis based off of one paragraph).  in interpretation of these results, one would presumably need above a high school education to understand the content based upon grammar and word structure.

Levin v. Madigan (2012) was a case in which the remedies for age discrimination were discussed.  Many federal circuit courts held that only the Age Discrimination in Employment Act of 1967 (ADEA) protected state employees.  The Levin court was the first one to declare that disgruntled employees could also seek remedies under the Equal Protection Clause § 1983 (in law, the symbol “§” stands for section).  As mentioned before, Harvard Law Reviews are written as a research tool for practicing lawyers and students of law.

The activity system of this document does not appear to be overtly large.  Not many people besides lawyers and students tend to access law reviews.  Employers may perhaps stumble upon this particular one when looking at what type of litigation they must be mindful of when in the hiring, firing, or promoting process of either young people or the elderly.  Disgruntled workers may also access it when considering the possibility of hiring a lawyer to represent them in a case and trying to determine how much material they would have on their side.  Even so, it is presumably safe for the author to assume that the audience would have some form of higher education and a sense of the legal system.  With that being said, I believe he made one exceptional error.

The Official Style is characterized with many uses of jargon, as is this journal.  One key word used exhaustingly throughout it is “preclude,” it is even used in the title.  One would think that a word that is so essential to the overall point that the author is trying to prove would be defined, but it is not.  It is used in all tenses (preclusion, precluded, precluding) but never once is a concrete definition given to explain exactly what the author is alluding to.  You may be thinking that this is not a strong enough example, most people with higher education could define preclude for you.  But what about words such as mired, progeny, irreconcilable, or jurisprudence?  These words reek of jargon and the overuse of a thesaurus.  

The author attempts to write in the Plain Style by using metabasis.  He uses cue words such as “first,” “second,” etc. (see page 1416) to keep the reader in line of the direction he is taking the article.  This can be seen as a bit ironic however because of his excessive use of the words “however” and “therefore.”  Virtually every paragraph includes these words.  It gives the feeling of the author talking circles around himself.  He makes one point, only to switch to a completely different direction.  This can be very difficult to follow, hence my argument for the Official Style.

Along with speaking around himself, he makes parts of his arguments long-winded, twice as long as they need to be, so the reader almost loses what the original point even was.

The dashes used to offset a portion of the sentence are used a bit erroneously.  The idea is so long that the reader becomes confused.  Perhaps that idea would have been better fit in the footnotes.  This article does indeed use a large quantity of footnotes.  About one-third of every page is filled with them.  Readers fear footnotes.  They don’t know what to do with them.  Do you read them as you go? Come back and read them when you’re done with the rest of the text?  It is difficult for audiences to comprehend.  Luckily, the audience for this text assumingly has a college education, but with that being said, it may frighten off other potential readers.  

    Another tactic of making text long winded is to use a to-be verb plus a prepositional phrase.  All verbs are changed into nouns supported by a form of the weak to-be verb.  The author exemplifies this perfectly, cited from page 1417, “And because the Supreme Court had previously held that “age discrimination in employment violates the Equal Protection Clause,” the Seventh Circuit found it was.  Another example comes from page 1415:

The OIAG stands for the Office of the Illinois Attorney General and is a perfect demonstration of the Official Style.  Instead of simply saying “we fired Levin for his poor performance,” they sidestep placing responsibility on themselves by using “was” and not saying directly that they were the ones doing the firing.  By writing in this more impersonal sort of way they can not only sound more professional but also become more detached from the situation.  It can be crucial in some fields to pull your way from a situation.  In the medical field for example, having to write up case report after case report of failed surgeries or deaths can become extremely overwhelming.  Instead of saying “I did this” or “I failed to do that,” the author can take a passive voice and not claim action at all.  This tactic can be key for mental health.

    The Official Style is significant in numerous situations.  Whether it is a good or bad approach to take is a judgment call but I have argued that it has both positive and negative aspects.  The Harvard Law Review is an excellent example of the style being used in a positive sense.  It seeks to elaborate on much more difficult to understand texts while keeping a unique, professional feel.

Erin Perry