I am blogging from the "Writing About the Law" conference at New York Law School. Here is the description and participants from the second panel:
Lost in Translation (?) Writing About the Law for a Non-Legal Audience
Writing about law for a lay audience poses its own unique challenges. What is lost and what is gained by having to translate complex legal concepts into concise news reporting, incisive commentary or compelling drama?
Panelists and Moderator:
- Adam Cohen, editorial board member, The New York Times.
- Jamie Heller, Deputy Managing Editor, The Wall Street Journal Online.
- Richard Sweren, writer and co-executive producer, Law & Order.
- Dahlia Lithwick, Supreme Court reporter, Slate.
- Brandt Goldstein (Moderator), Visiting Associate Professor of Law, New York Law School.
This panel certainly engages an interesting topic--the difficulties of translating legal discourse for a non-legal audience. The panel starts with Adam Cohen--who begins with the observation that much of his writing for the New York Times editorial page is "advocacy." He seems himself as trying to influence the Supreme Court's decisions. I wonder whether a NYT op-ed ever has a chance of actually influencing the Court? It seems unlikely, but perphaps the Justice's do read the Times before conference??? Cohen makes the point that this form of writing inevitably leaves much out--and that even long opinions cannot include everything. The moderator asks Cohen whether he thinks the Justices read him? Cohen responds that he thinks they do read him--although his evidence is that Justice Breyer read Cohen's favorable review of Breyer's book.
Dahlia Litwak suggests that she "writes for [her] grandmother" and "for law professors who have written seven textbooks [on the topic of her column]." Legal writers face "an uphill battle" because they are writing about topics that most Americans are not familiar with. The media asks how these stories can be made interesting? Writers try to figure out how to sell their editors on stories that may be "huge" legally, but not compete with Anna Nicole Smith.
Jamie Heller has a different perspective. Lawyers are so focused and narrow that they may not understand anything outside their own area of specialization. She emphasizes that the Wall Street Journal attempts to provide the simplest possible explanations.
Richard Sweren who writes and produces Law and Order. He says some of the most interesting episodes involve Lynne Stewart. (For an explanation, see this wikipedia article.) The moderator asks how the show conveys the law to its audience? Sweren says some stories are just too complicated, and that the legal issue must have emotional appeal. Jamie Heller says that emotional interest is a criteria for a story making it into the the Journal as well. And Dahlia Litwak relates Scalia's criticism of legal journalism--that it focuses too much on the sympathetic character and doesn't disentangle the law from the story.
The discussion then turns to the presumption of innocence. Jamie Heller says it is very difficult for defendants to get their side of the story out. Adam Cohen points out that charges make page one, but the dropping of charges may be on page 27. Dahlia Litwak points out that some media focus exclusively on stories that lack legal significance--kidnappings of attractive children, Scott Peterson, and so forth. Stories about statutory interpretation aren't interesting. Habeas corpus doesn't look good in a skirt. Litwak says she has to decide whether to write stories that will only be read by her dad and two law professors or stories that will get her on Nancy Grace--and that she is grateful that Slate allows her to make that choices.
Sweren notes that on his show the frequently start with a legal issue and they invent a murder to lead into the issue--he gives the example of an episode on military contractors in Iraq. The moderator turns to 24 and the depiction of torture on that show: can fictionalized accounts add to the debate? Litwak wrote about this issue: she suggests that Abu Graib and 24 have immunized us to torture. She believes that 24 is part of the process of normalizing torture. Sweren suggests that Law and Order took a different approach to this topic.
Jamie Heller discussed coverage of large law firms, suggesting that the issues are repetitive. Globalization. Big versus small. Associate dissatisfaction. Law firms don't change very much, she suggests.
Adam Cohen discussed "judicial activism". He gives the example of Scalia's approach to the Eleventh Amendment, which he asserts is "activist" and also mentions Lori Ringhand's study that purports to show that conservative Supreme Court Justices invalidate statutes more frequently than do liberal justices.
Dahlia Litwak notes that there simply isn't much editorial writing about law. She notes that much of the editorial writing is not well informed. The blogosphere, she suggests, provides a remedy for this.
Adam Cohen notes that he is in a different position that "beat reporters" who cover the Supreme Court. Beat reporters get "coopted" by the justices--whereas Cohen is free to write "mean" stories.
Jamie Heller notes that it is very difficult to digest long court decisions under time pressure. A court opinion can come in at the end of the day, and then needs to be reported accurately under extreme time pressure. This is certainly a problem--and my impression is that Supreme Court reporters generally do a good job, but that it is not unusual for a Supreme Court opinion to be badly misunderstood in the early going. This is one area where the blogosphere can make a difference--Scotus Blog has really provided a forum for informed expert debate about the meaning of Supreme Court decisions in the first few hours and days after release.
Jim Lindgren asked about the Duike case, noting that some of the talking heads were invited to comment repeatedly, even after it was shown that their comments were grossly inaccurate. Litwak respons that this is the nature of the meida and that it does tremendous harm.