As an employee looking for a promotion or an ambitious student looking for an award, you will have to speak and write with both clarity and style. The former saves the reader’s time. The latter captures and holds their attention.
Many academic writers take a high-handed attitude towards the reader’s time and attention. Both are wasted when these writers dump their disorganized thoughts onto the page. Instead, they should transparently weave the strands of their arguments together so that the reader is not lost amid the thicket of ideas.
Remarkably, even the Harvard Law Review has articles with this problem. A recent article made interesting points about civil rights litigation. But these points were utterly obscured by the needlessly opaque, head-scratching prose.
I came across this:
“For much of the nineteenth century, victims of federal government misconduct pursued common law tort claims against responsible federal employees. But the framework for government tort litigation changed dramatically in the twentieth century. Congress adopted the Federal Tort Claims Act (FTCA), imposing vicarious liability on the federal government for some (but not all) torts committed by its officers and employees within the scope of their employment. Notably, the FTCA omitted many intentional tort claims from its coverage, leaving those matters to resolution under state common law. Then, in 1971, the Supreme Court recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics a federal judge-made right to seek damages for federal officials’ violations of the Fourth Amendment. Legislation adopted in 1974 extended the FTCA’s vicarious liability regime to the intentional torts of law enforcement officers. Victims of tortious misconduct can, at least in theory, sue the government under the FTCA for law enforcement torts and wrongdoing officers under the Bivens doctrine.”
“While available in theory, these remedies often go missing in practice, as they did in Hernández v. Mesa, the Supreme Court’s cross-border shooting case from 2020. The latest decision in the Bivens line, Egbert v. Boule, confirms the Court’s reluctance to expand the rights of individuals to pursue constitutional tort claims against federal officials. The Egbert Court reiterated that its more recent decisions “instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts ‘arrogat[e] legislative power.’” Under this vision of the separation of powers, Congress (rather than the federal courts) must take the lead in authorizing individuals to enforce the federal Constitution, especially in suits against officers of the federal government. Bivens may survive in the context of federal policing and imprisonment but has no growing power. For example, the Egbert Court rejected (without dissent) a new claim for First Amendment retaliation.”
Who was this article being written for? Even if it was written for other legal academics, consider that civil rights litigation is only one legal specialty among innumerable ones? Would practicing civil rights lawyers find the prose welcoming? Nonspecialists? I was a lawyer for over 15 years, wrestling with numerous constitutional issues, and I found the paragraph nearly impenetrable.
We’re going to rewrite this part of the introduction in stages. In this first post, we will disentangle the essential message. Then, we will rewrite, assigning a narrow set of topics to each paragraph. In a second related post, we will consider how we can frame the underlying issue as a problem, and how the article represents a solution to that problem.
The Underlying Meaning: Finding the Essential Actors
First, we must disentangle the essential point of these paragraphs. One problem is that we do not exactly know who is kicking and who is being kicked: there are numerous actors doing various actions.
We can usually find the actors in the front part of the sentence. Here we have
- victims of governmental misconduct
- framework for government tort litigation
- Congress
- FTCA
- Supreme Court in Bivens;
- 1974 legislation.
- Remedies
- Supreme Court ruling in Egbert v Boule
But the paragraph does not clearly state the links between the different actors. As a result, there is no cohesiveness.
In general, the article discusses how the victims of blatant government mistreatment are often not getting relief because federal courts are misreading a key federal statute. As a result, the courts are unfairly excluding many valid claims.
Coming back to these 2 introductory paragraphs, I saw that these were the main actors:
Victims of governmental misconduct. When they are hurt by federal employees, they often cannot sue the employees in tort in federal court.
Congress. After it passed the Federal Tort Claims Act, victims could not use many theories of intentional torts to sue individual government employees. In 1974, Congress changed the FTCA to allow victims to sue the government when a law enforcement officer has hurt them. It did that because of the Supreme Court’s Bivens ruling.
Supreme Court Bivens ruling. Under Bivens, if a law enforcement officer hurts a person, the victim can sue individual cop.
The Supreme Court in Egbert v Boule: Under this case, the Supreme Court would not extend the Bivens rule.
So, Congress through the FTCA and the Supreme Court in Bivens gave the victim the “who” to sue – the former said that if a government law officer hurt him, the victim could go after the whole government; the latter let the victim go after the individual cop. But the Supreme Court in Egbert said that it would not extend this rule to other government employees unless Congress said otherwise.
But I was still unsure about the overall thesis. This did not appear until the fourth paragraph:
“But in this Article, we argue that current law affords individuals a broad right to pursue tort-based redress, either against the federal government under the FTCA or against federal officers based on state common law.”
Now, we have the hero: the out-of-luck plaintiff; a person who has been hurt and can make no person or entity pay. The article discusses how this victim can make someone pay.
My Revision
Let us focus on this actor and rewrite these paragraphs, while keeping the relationships between the main actors clear:
(My version).
We argue that victims hurt by the unlawful actions of many governmental employees should have a right to sue either the federal government under the Federal Tort Claims Act or the actual federal officials under state common law. Presently, these victims often get no relief in federal court.
Through the FTCA, Congress has moved victims towards suits against the government itself. But there are limits: Congress has not authorized the victim to sue the government using intentional torts theories. Those suits must still be brought under state common law.
There is a theoretical exception. When a plaintiff is hurt by a federal law enforcement officer, he can still sue the officer and the government itself. In Bivens v Six Unknown Agents of the Federal Bureau of Narcotics, the Supreme Court created a right for victims to sue law enforcement officers who hurt them. Through a 1974 amendment to the FTCA, victims in these situations can sue the government.
But in Egbert v. Boule, a cross-border shooting case from 2020, the Court refused to extend the Bivens rule. It said that its recent decisions “instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts ‘arrogat[e] legislative power.’” Under this vision of the separation of powers, Congress itself must authorize victims to sue federal government employees. The Egbert Court unanimously rejected a new claim for First Amendment retaliation. After Egbert, Bivens may survive, but it will not grow.
Now, we have a framework for discussing the range of abuse that out-of-luck plaintiffs must endure.
Later the authors note:
“When coupled with gaps in the FTCA, the Court’s persistent refusal to expand the Bivens remedy has produced a series of notable remedial failures. When federal government officials unlawfully detain and torture individuals outside the United States, they almost invariably enjoy immunity from judicial oversight. Thus, suits to secure compensation for government torture committed during the Bush Administration’s war on terror have consistently run afoul of the territorial limits of the FTCA and the reluctance to fashion a Bivens remedy. Closer to home, scholars have observed that victims of sexual assault and battery in the federal workplace face severe obstacles in securing redress under either Bivens or the FTCA. Even a simple assault and battery claim, brought by a low-level employee who had been choked on the job by an aggressive superior, was consigned to the remedial abyss.”
In other words, individual government officials can behave barbarically, and the courts will not help the victims, even in cases of torture, sexual assault and battery, and choking.
However, these victims could have sued in the 19th century.
Experimenting with Rhetoric
As a hook, we could begin the introduction with rhetorical antithesis:
My version). In our modern society, government actors can choke, sexually assault, and torture, and the victims can often do nothing because of the Federal Torts Claim Act and Supreme Court rulings. But nearly two centuries ago, state common law would have allowed the courts to hold government abusers to account. Are we both moving towards the future and losing ground?
It could be made better, but it gets us the reader’s attention and gives the material emotional resonance. And with that, we have time to establish the framework for our piece.
The Takeaway
To ensure that their ideas are valued, the academic writer should always consider who they are writing for. For only academic specialists in civil rights litigation? Or for everyone? The linguist and author Steven Pinker has noted that in terms of their expertise, readers are distributed along a bell curve in terms of their knowledge, but that academic writers tend to overestimate how familiar readers in the middle will be with the subject. So, there is no harm in simplifying. The respectful author must recognize this.
As a final matter, consider that if the world-renowned Harvard Law Review allows writing this turgid, then other journals with less editorial rigor are probably letting in much worse. But, on the positive side, when you learn to write well, you will really shine against this grey background. And I will teach you principles that cover any kind of writing – whether in the business world or in academia.
In another post, I will examine the rest of the introduction and see if the author has stated the dimensions of the problem properly.
Are you struggling with your academic or business writing? Book a time with me and let us get to work.
