23 September 2013

Anatomy of a Plain English post

As the new Supreme Court term approaches (oral arguments start October 7th!), several of you have asked me about how I go about writing my "Plain English" blog posts, so I thought I'd spend a little time explaining what goes into each post. To do that, I need to first talk about how things got started.

Back in January 2013, the Supreme Court had just released its decision in Already, LLC v. Nike, a case of alleged trademark infringement. Bruce Potter asked me if I knew of any resources that explained Supreme Court decisions in a way that non-lawyers could understand. I knew that SCOTUSblog occasionally wrote "Plain English" posts, so I pointed him there. But I also knew that this tended to be an irregular feature which tended to focus on the more noteworthy cases. Indeed, SCOTUSblog did not appear to ever write a Plain English post for a lesser profile case like Already. Finding no other appreciable resources, and more requests from friends and followers to summarize court decisions in understandable language, I decided to fill the niche, and my Plain English posts were born.

Originally, as was the case with Already, I researched and wrote the entire post on the day of the decision. This turned out pretty quickly to be rather cumbersome. Trying to understand the intricacies of complex legal issues and parse it into clear and concise language in a short period of time was a real challenge. Added to that, people were asking for more decisions. So I went back and wrote summaries for all of the decisions in the term that started in October 2012.

By the time June rolled around, I was writing my drafts several weeks in advance, anticipating the Court's decisions, and then plugging in the holding of the case at the time they were released. This gave me an opportunity to get ahead by doing most of the grunt work in advance, and saving decision days for last-minute analysis. This transformation from doing everything on the same day to working out a schedule in advance became the selling point for me that made Plain English worth doing. And of course, the great feedback from you has been the primary reason I'm still doing this.

Once the Supreme Court's term ended in June, I spent time over the summer reviewing the 40+ cases the Court had already granted for the next term. One-by-one, I reviewed the cases and wrote summaries in advance for all of them. I also made a few changes so that instead of holding the pages as drafts until decision day, I published them almost immediately so that they would serve as both a preview of the case now; and a wrap-up of the case once the decision was released. This has proven to me to have been a good decision as I see a considerable amount of traffic coming to these blog posts for upcoming cases. Publishing early also has the added benefit of getting the blog posts established within Google search results, such that many of my Plain English pages for upcoming cases can be found on the first page of results.

The pages themselves have evolved over time, and although some are shorter or longer than others, I endeavor to keep them in the range of 200-250 words. For a complex Supreme Court decision! Yes, it's a challenge. I've also become more efficient over time. The time that goes into each particular page varies, but on average I spent about 30-60 minutes during the initial write-up. SCOTUSblog may often provide a short summary of the case when it is accepted, but otherwise there aren't many secondary resources out there to rely upon. As a result, I often go directly to reading the lower court decision(s) and the petition for certiorari, as well as any supporting documentation. Depending upon the complexity of the legal issue, I may do some additional research to help understand the problem.

The basic format of the Plain English post is rather mechanical. First, I explain the background of the case. This will most often involve an introduction of the law or statute in question, and the procedural history of the case (how the case went from initial complaint all the way to the Supreme Court). Next is the question presented. I write this almost inevitably as "[t]he question before the Court [is/was]..." Once the decision is released, I will usually indicate the vote, with a link to the opinion at the Supreme Court's website, and include a statement of the case's holding. This is usually (but not always) verbatim from the Court's opinion. Lastly, I try to explain what this holding means--both to the parties in the case, and the practical impact of the decision as a whole. This last part is not easy--it is not at all clear on the day of decision what the practical impact of that decision might be years down the road--it is essentially an educated guess not just to a law student like myself, but to highly educated legal scholars alike.

I typically write summaries in my own words, but will often use some language from the lower court decision in the instances when those courts write clearly and plainly. I also link to the SCOTUSblog case page, because it is the best one stop shop for everything else you'd want to know about the case beyond my short summary.

This term, I've added a new feature. In the race to find nationwide, and largely abstract meaning for Supreme Court cases, we often gloss over the fact that behind these cases are real people and real problems.  In the introduction of David M. Dorsen's biography of Henry Friendly, he writes that "[b]y the time a case reaches the U.S. Supreme Court...all the facts are drained from it and the issues are almost abstract questions of constitutional or statutory law." So I've tried, when possible, to provide a peek behind the curtain, so to speak, as a means of reinserting some of the facts into the case. Two of the ways you'll see this incorporated into my posts are through "did you know" boxes (example) and imagery (example). As other ways present themselves, I'll look into making additional changes as necessary (or requested).

Finally, some disclaimers and caveats. I think it's pretty obvious, but I'll say it anyway, that I cannot, in 200-250 words, adequately explain in detail what it takes a learned Supreme Court justice 20 or 30 or 40 pages to do. By necessity, I have simplified the legal arguments, omitted dicta, and glossed over technical issues that are not immediately relevant to the specific holding. If you're looking for more detail than I can provide within the confines of the post, I urge you to contact me directly, or head to one of the resources I link to within my post. Additionally, I try very hard to keep my Plain English posts straightforward and non-political. While political factors are inevitably intertwined in any given decision, and while I have my own thoughts on any given decision (which I may often write about in other posts), I would prefer to keep Plain English as unencumbered by outside considerations as possible. Lastly, again, pretty obvious, but I'll say it anyway, I am a law student, not a lawyer (yet). Nothing on my blog should be construed as legal advice. I cannot say with certainty that my analysis of any decision is 100% correct. This is an art, not a science. Other intelligent people, some with law degrees and many years of practice, may disagree with me. Or, they might agree with me (I tend to like it better when this happens). It's even possible that I could be right and they could be wrong. These are complicated and complex issues, and that's why they're at the Supreme Court.

I have really enjoyed spending the last year working on Plain English. I hope that you have enjoyed it. As I have already written, I'm already hard at work on case pages for the new term. I hope that you will follow along this year, ask questions, and most importantly, provide feedback. Writing these pages is already a great experience for me, but when you let me know what you think, it makes a better product for everyone.
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