At the risk of offending one anonymous commenter who desperately wants me to condemn Dan’s insistence on insulting him and forget what I care about — writing words that one is willing to stand behind and justify — I will try to clarify and expand upon what I wrote:

I never said one cannot write anonymously. Quite plainly I don’t ban anonymous comments on my blog. Quite plainly I’ll never be Lord of the Internet with the power to ban anonymous writers. Nor, if I were Lord of the Internet, would I ban anonymous writing. I believe in the freedom of speech, even speech that expresses views I despise. Views I think are stupid are another tolerable phenomenon.

But I do care deeply about the quality of writing. I teach law students how to write as lawyers, and the vast majority of my professional life as a law professor and a lawyer depends on the effectiveness of what I write. One thing I am convinced of and try passionately to convince my students of is that that you cannot be an effective writer if you do not have the courage to own your words. By that I mean, among other things, that you must believe in your words, believe those are the  best words you could come up with under the circumstances to express your point of  view. If you don’t do so, you’re just parroting things you haven’t truly thought through. Your failure to think them through typically means you haven’t entirely grasped what it is you’re trying to say (and what the writer of what you’re parroting meant to say). It also means your words will not convince the intelligent reader who isn’t already convinced that you’re right.

One necessary implication of my belief in the necessity of owning your words is that anonymous online writing loses a lot of its credibility by the very fact that it is anonymous.

My view does not mean that anonymous writing entirely lacks credibility.The anonymous author’s character (and an anonymous author has a character, one that makes an alert reader wonder why he isn’t willing to claim his words as his own) detracts from the reader’s valuation of that anonymous author’s writing. But a myriad of factors go into influencing a given text’s persuasive force. The author’s character is only one, albeit an important one.

The point that really seems to have hit a nerve is that it seems plain to me that choosing to write anonymously is for all relevant purposes grounded in fear. Sometimes that fear justifies the anonymity because (a) the author’s fear is of sufficient immediate and substantial harm and (b) the message is so important that even if it is compromised by anonymity it is worth getting out. Where those so offended by my views and I differ is in the amount of courage we think is appropriate. They have fears of the consequences of identifying themselves online when they write and they’re deeply offended that I don’t believe those fears justify their ways of using anonymity.

Thinking he had caught me questioning the courage of one of my colleagues (whose views, not courage, I question) one anonymous commenter pointed out that Jonathan Adler blogged anonymously on the Volokh Conspiracy as “Juan non-Volokh” prior to being granted tenure. At the time, Jonathan had a legitimate fear that the mere act of blogging would jeopardize his shot at tenure. As a general matter at that time, blogging was not only considered beneath legal scholars, but also to be an actual drain on time better devoted to “real” scholarship. (While blogging is no longer a negative in the eyes of most professors, it still is considered by most entirely irrelevant to scholarly achievement). I have absolutely no reason to believe Jonathan chose anonymity to hide the substance of the views he expressed on the Volokh Conspiracy. Those views were quite well known among his colleagues (and to the public) and in substance were entirely of a piece with the public writing he did under his own name. Nonetheless, I do believe that Jonathan’s writing under his own name has more force than his writing did under his chosen pseudonym. Nor do I have any reason to believe he would disagree.

To take one of Dan Hull’s more obvious examples of non-cowardly fear justifying anonymity, an Iranian dissident has good reasons for writing under a pseudonym. But one question his anonymous identity might raise, among others is this: is he really a dissident or is he in fact a CIA or Saudi plant? All sorts of credibility problems arise when one chooses to separate one’s writing from one’s identity.

Ken, who chooses anonymity, has written that he prefers to remain anonymous because his favorite styles are, as he describes them, “satire, sarcasm, and ridicule.” Ken also believes that “these are potent weapons in the fight over ideas.” But, unfortunately, poor Ken is too subtle for most people and he therefore fears their reactions:

People don’t like being made fun of. Moreover, some people are functionally incapable of understanding irony, sarcasm, and satire. Other people are offended easily, and particularly by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally featured here to the extent it amuses us.

I would suggest to Ken words he so proudly identifies as satire, sarcasm, and ridicule are not really the “potent weapons” he believes they are. It is well known that online writing in particular is a very poor medium for the effective use sarcasm. Effective satire that actually persuades someone previously unconvinced of the writer’s point of view is a very rare thing. Far more often, satire is just the words of someone seeking affirmation from others who share the writer’s contempt for the object of the satire. And ridicule? Ridicule amuses your toadies. To everyone else, it’s just name-calling.

But Ken is no Jonathan Swift, and I think he knows it. In fact, Ken’s “satire, sarcasm, and ridicule” are, to my mind (and to the mind of those who are convinced by me, but plainly not to Ken and his anonymous colleagues), merely the lazy expression of hostility and disagreement.

But, regardless of how we characterize the writing that Ken believes to be a “potent weapon in the war of ideas,” what he fears is the risk those “functionally incapable” of understanding his meaning would pose to him. Who are these people? Well, he once worked for big firms that would so dislike what he wrote he feared his employment would be threatened. He has clients he fears he’d lose if they knew the truth of his views on social issues. He fears needing to justify his writing to opposing lawyers or judges who might use those words against him. He fears he or his family will be stalked or threatened like other bloggers have been. And he bravely wrote critically once about a white supremacist who lived just one town over from him.

Are these fears the legitimate fears of a brilliant writer wielding potent tools in the war of ideas? You can judge for yourself. The fear of the law firms, the clients, and opposing counsel and judges seems to me more likely fears of being busted for using stupid words by people to whom one has the responsibility to express oneself intelligently. The fear of being stalked seems to me the fear of something so unlikely (even though it does happen, of course) that it’s really nothing but an empty rationalization. The fear of the white supremacist? I might grant Ken that one, but then why does all of his writing need to be anonymous?

To address the question more generally: are your political views so inconsistent with your employment that your job would be threatened if you really expressed them? Are you so desperate for a job you need to keep that one despite the fact it is inconsistent with true expression of what you believe? Are you writing online about your employer despite an employment policy that forbids you to do so? Is that a legitimate exercise of anonymity? If you’re Karen Silkwood or Daniel Ellsberg, it would be, but I have grave doubts that the people complaining to me are in that league.

And if it’s your clients’ reactions you fear, why would they not like what you write? Would they like it if they knew you were hiding your real thoughts from them? Why do you represent them if legitimate expression of what you really believe would offend them? Are you really capable of representing them zealously if you harbor secret thoughts that, if known, would cause them to retain different lawyers? Is a blog really an appropriate place for telling stories about how dumb your clients are? You enjoy doing it. You want to do it. But does being able to do that justify anonymous blogging?

I AM NOT suggesting that  fears are always illegitimate. What I am suggesting is that a free-floating fear of being stalked as a result of online writing is pretty far off the wall. And I’ve worked for big law firms and clients of all sorts. It’s not the everyday law firm or client who would fire you for thoughtful writing online. There would have to be something really atrocious about the employer. And clients care far more about courage, skill, and passion than they do about disagreements on social issues that are irrelevant to their representation, especially if those views are expressed cogently and the lawyer is willing to stand behind those views. The last thing clients want is a lawyer who’s afraid to let the world know that he believes in and will stand behind his words.

And are these fears so real that they justify anonymity on everything a blogger writes? Selective, tactical anonymity is an option, guys. And choosing to remain silent on matters that you can’t write about in ways that won’t endanger you with people who matter to you is an option too. That of course, is a whole other topic: a good lawyer takes a lot of really interesting stuff to his grave with him.

And, honestly, I don’t see substance on Popehat (the site I originally linked to and from which the hostile commenters came) that would usually be the sort of thing that would threaten the livelihood of its authors or commenters. They’re a bunch of guys who might like to romanticize the subversiveness of what they write, but, really, they’re not exactly a threat to anyone or anything.

Nor am I.

Then again, while the content at Popehat is pretty run of the mill, the words themselves do not really do that substance a lot of justice. And that indeed is a major part of the problem. As Charles wrote, anonymity allows you to write that a cop was a “fascist” without people who know you and would be offended by those words know that you wrote them. But merely writing that a cop is a “fascist” is just nasty name-calling, not credible writing. And Patrick, in the very first comment responding to my blog post – writing anonymously, of course — explained that he’s never heard about me but that if he really cared he could “write a blogpost mocking [me], that would stick to the front page of a Google search for [my] name forever.”

A put down and a threat as an opening move? That’s a perfect example of why I called anonymous writing online cowardly. If one is going to insult and threaten, one ought to have the courage to let one’s employers, clients, loved ones, and targets know that being a bully is what one is in the business of doing.

Or one could claim to use insults rhetorically, to highlight a point, but that’s a dangerous game, and it takes a special person to get away with it, and Dan Hull happens to be a special person.

But the most important thing about Dan Hull for purposes of this discussion (though quite plainly Patrick and his Popehat People want to make anyone who happens upon this post or the last one on this point think otherwise) is that Dan Hull wrote those insults under his own name! He’s willing to own and justify those insults. And doing so has benefited him immensely. Clients love lawyers who make the work their own. And it sure doesn’t seem that the Popehat guys are big believers in political correctness, so I can’t believe they were genuinely hurt by his words except to the extent the substance behind his insults hit home.

My point is that if you don’t own your writing you cannot truly be persuasive. That’s why I emphasized that my students, as lawyers in training, must learn to own their words, to be ready to justify the choices they made in writing the words they wrote.

And Charles happens to be right about one thing — outside the law (and too much within it, truth be told) the courage to own one’s words is sorely lacking. I think that’s a real shame and a major loss for the quality of any discourse, be it about politics, literature, science, religion, etc. Charles, I guess, expects less of people than I do. I also think that people would be surprised how much they’d benefit from saying what they mean in ways they’d be proud to claim as their own to anyone.

Finally, I am making no demands. I am stating my point of view. Yes, I am an Associate Professor of Legal Writing, but that’s just a title. And I hardly use it to put on airs. Anyone who knows anything of the status wars within academia or has read much into my archives knows I write quite openly, under my own name, about (1) the fact my title is reflective of a remarkably low status and an absence of job security and (2) my opinion that (contra Patrick) law professors are NOT an elevated class.

Am I a nobody? Well, Mike (whoever he might be) certainly things so. One thing I do know — anyone with access to an internet connection has about as good an opportunity to determine that for themselves as they would for anyone who writes openly under his own name.

And they can take that information and factor it into their judgment whether and the extent to which they agree with me.

Here’s my suggestion to everyone, including the Popehat guys: try writing under your own names. You might find your words and views become far more compelling not only to your readers but also, far more importantly, to yourselves. But be careful: being thoughtful and precise — writing things that you’re willing to justify to those who challenge them — might make you rethink some of the stuff you hold to so passionately.

Or you can ignore me entirely. That’s entirely your prerogative. You can even, if you wish, go on thinking of me as a narcissistic nobody who doesn’t matter, and I’ll go on thinking of of most anonymous bloggers as a bunch of cowards who write to please themselves and don’t persuade anyone who hasn’t already bought into their point of view.

And when it gets down to it, tthe vast majority of anonymous online writing is simply bad writing that wouldn’t see the light of day if the writer knew everyone he knows could match the words to the person.

By that, of course, I do not mean that their words are their property. There’s a lot of confusion about that issue, but that’s not today’s lesson.

What I mean is that it’s not enough to parrot words you believe are authoritative to make your case. You must use words you know in your heart state what you mean. Parroting the words of others, even if they are authoritative, won’t do that. Which is why one of my favorite quotes is Ralph Waldo Emerson’s: “I hate quotations. Tell me what you know.” (I love paradox too.)

But in order to own your words you have to have the courage to stand behind them too. It’s one reason I bemoan the influence of anonymous student evaluations. It’s why too I’m all in with Dan Hull in this insane exchange about his insistence that anonymity is the death of productive discussion on the internet.

What possible conviction can you hold in your words if you’re not even willing to put your name to them? As Dan makes clear, there are of course exceptions to this rule — there are times anonymity is necessary to preserve one’s safety. But legitimate fear for one’s safety for stating disagreement is a rare thing that we don’t encounter terribly often in 2010 on the internet in the United States. It’s almost hilarious to find people disputing Dan under the pseudonyms “Publius” and “Marcus Agrippa.” Almost hilarious. Really, it’s pathetic.

If you can’t own your words, put yourself forward as the authority behind your words and rely on the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. I’ve said it recently: a good thing about being a lawyer is there is always someone telling you your wrong. You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but cowardice, and cowards aren’t known for their wisdom.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

In a 2003 article entitled “PowerPoint Makes You Dumb,”  Clive Thompson, summarizing Tufte’s article, wrote: “When NASA engineers assessed possible wing damage during the mission, they presented the findings in a confusing PowerPoint slide — so crammed with nested bullet points and irregular short forms that it was nearly impossible to untangle. ‘It is easy to understand how a senior manager might read this PowerPoint slide and not realize that it addresses a life-threatening situation,’ the [Columbia Accident Investigation Board] sternly noted.”

Further summarizing Tufte’s article (which is really worth reading in its entirety), Thompson wrote: “[The low resolution of a PowerPoint slide means that it usually contains only about 40 words, or barely eight seconds of reading. PowerPoint also encourages users to rely on bulleted lists, a 'faux analytical'' technique, . . . that dodges the speaker's responsibility to tie his information together. And perhaps worst of all is how PowerPoint renders charts. Charts in newspapers like The Wall Street Journal contain up to 120 elements on average, allowing readers to compare large groupings of data. But, as Tufte found, PowerPoint users typically produce charts with only 12 elements. Ultimately, Tufte concluded, PowerPoint is infused with 'an attitude of commercialism that turns everything into a sales pitch.'''

Think of the difference between a low resolution photo and a high resolution photo of the same scene -- the viewer of the low resolution photo remains ignorant even of the possible presence of information present in the high resolution photo, much less the precise nature of that information.

Tufte self-publishes his books, not because he wouldn't be able to attract a commercial publisher, but, rather, because by self-publishing he can control entirely the manner in which he presents his material. Since his entire mission is to explain how to effectively present graphic information, that control is crucial to his work.

What does the effective presentation of graphic information have to do with lawyering, which primarily relies on the use of verbal information? Plenty. The principles applicable to the effective presentation of visual information are the same principles applicable to the effective presentation of verbal information. Important information must be highlighted, the conclusions must be supported with detailed, "high resolution," step by step explanations and the telling use of narrative, and anything extraneous to the points being made has to be cut out. You must also be acutely aware of your audience and the precise purposes you are trying to achieve. Moreover, as Ruth Anne Robbins has so effectively demonstrated in her article, "Painting With Print: Incorporating concepts of typographic and layout design into the text of legal writing documents," the visual appearance of even our written work is crucial to its effectiveness. Finally, of course, our culture (including our legal culture) is one that increasingly relies on the visual presentation of information. There is no denying, however, that a well written brief, an effective oral argument, or a successful classroom discussion is like a high resolution photo, while a PowerPoint presentation of of the same information is like a low resolution photo of the same subject.

In short, Tufte is exactly right in PowerPoint does Rocket Science when he concludes: "Serious problems require a serious tool: written reports."

But again, merely using words instead of PowerPoint slides isn't the answer. The words need to be chosen and arranged effectively. My students often make the same mistake the NASA engineers made in their PowerPoint presentation, which did in fact contain statements meant to convey the substantial risk that resulted in the Columbia's disintegration upon its reentry into the earth's atmosphere. The problem was that the crucial information was buried in a place and amidst so much other, misleading information that it was impossible for the audience to notice it.

It reminds me of my students when, in response to feedback they don't like, come to me with their work and argue that they really did include in their writing the important points I've said they've neglected. They even can point me to the words that I can see they really did mean to make those points. But those points are either expressed in language that is too obscure or are put in places in which they do not fit into an effective overall analysis. It's not just student's, of course. All of us have those moments when we believe we have expressed our opinion on a subject effectively, but if that if that opinion is unconnected to the evidence, authority, and reasoning that supports it, if it is buried in words that don't support that opinion, or if in any other way its truth is obscured, it might as well not even be there.

Addendum: here's one example of stupid verbal argument that bases its conclusion on the information it presents but is too "low resolution" to make its conclusion convincing. The Washington Examiner argues that "[g]overnment workers, especially at the federal level, make salaries that are scandalously higher than those paid to private sector workers.” I have to admit I was startled when I saw the editorial’s title: “Want to get rich? Work for feds.” Sorry, but none of the rich people I know of outside of Congress (which doesn’t make you rich, but, due to the cost of running for office, requires you to be rich) are government workers.

So what information does the Examiner base its conclusion on? “As of 2008, the average federal salary was $119,982, compared with $59,909 for the average private sector employee. In other words, the average federal bureaucrat makes twice as much as the average working taxpayer.” The Examiner even has a cool little graph to make the same point visually!

What’s the problem with the argument? It takes no account of the differences in education, training, and ability required to do all those federal jobs and the education, training, and ability required to do the jobs done by “the average private sector employee.” How many government jobs are there that compare to the legion of private sector jobs that pay minimum wage to stock shelves in superstores, flip hamburgers in fast food restaurants, or the like?

I know plenty of government employed lawyers. They really do make more, even much more, than “the average private sector employee.” But they make less, much less, than private sector lawyers whose education, training, and ability are no better than theirs. And their education, training, and ability do happen to be considerably more than those of “the average private sector employee.”  So why do my friends who work for the government do what they do? Because they believe in and love what they’re doing. Some are prosecutors. Some are public defenders. Some work for government regulatory agencies. And they’re great at what they do. They definitely don’t do it for the money.

Does anyone believe that going to work for the government is the way to get rich? God, stupidity is rampant.

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.