Watching my youngest son draft and redraft his high school essays under the watchful eye of his English teacher, who is smitten by the inerrant wisdom of Strunk and White’s Elements of Style, I was curious how the best legal scholarship in the country fares by classic rules of writing.
To simplify my task, I have chosen one rule that is easily quantifiable. In discussing elementary principles of composition, Strunk and White admonish writers to omit needless words:
Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts…. Many expressions in common use violate this principle…. In especial the expression “the fact that” should be revised out of every sentence in which it occurs.
So how do the top law journals perform under the microscope of William Strunk and E.B. White? In the countless hours of drafting and editing, do the top scholars and top student editors adhere to this elementary principle of composition?
The results are not encouraging. (Alas, I too plead guilty in my own scholarship). A ten-year search of the number of occurrences “the fact that” appeared in the flagship journals of the top law schools reveals the following:
Harvard Law Review: 869
Michigan Law Review: 496
Yale Law Journal: 459
Columbia Law Review: 436
Chicago Law Review: 431
NYU Law Review: 428
Penn Law Review: 408
California Law Review: 406
Stanford Law Review: 388
Virginia Law Review: 364
So on average the top journals misuse this phrase almost fifty times a year, and the Harvard Law Review misuses it over eighty times a year.
In our obsession with rankings, we can take solace in “the fact that” the Harvard Law Review is the best among the best at using this needless expression.