Judicial decisions embody legal reasoning, societal values and support the foundations of our legal system. For scholars, lawyers and librarians there are three essential components: decision-making, opinion writing and publication.1 Recently, scrutiny of Supreme Court opinions and the work habits of the courts in general has been drawing attention to the entirety of judicial work that is at the heart of precedent.
State reporters have style manuals that instruct judges and clerks on the proper formatting for official opinions, which are an invaluable research tools describing language and structure, stylistic practices and abbreviations for various authorities.2 And then there are the Constitutional inspirations and statutory requirements for issuing judgments and opinions.3 So it is that the genius of court opinion writing must be expressed through form, style, and substance.4
The system for creating decisions, from the mind of the judge to the editors at the publishing house, has a responsibility for the accuracy of their content. This is all the more important as correctness in factual and legal research as well as publishing has gained increasing attention. At the same time, the science of judging is being informed by empirical research into the inner workings, ideologies, motivations and biases behind human decision-making.5 Overall, scrutiny of judicial opinions has been heightened in many respects.6
In the 1930s an Ohio judge had been disbarred after being found “guilty of having written, and caused to be published in a legal journal, an opinion in a fictitious cause purporting to have been heard and decided by him when he well knew that its published report would be relied upon by lawyers and judges as the decision of a court in a litigated controversy.”7 In that same era, the Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) case reached the U.S. Supreme Court based on a rule that no longer existed.8 And in the 1980s, there was the fake but entertaining opinion, Catt v. State, 691 S.W.2d 120 (Ark.1985), which inadvertently entered into the legal publishing channels.9 Over a decade later, it was favorably cited by a dissenting judge on the Arkansas Supreme Court.10 Regardless of intent, errors or fictions that infect mainstream legal publishing can have serious implications for researchers, practitioners and deciders.
Judging cases and writing and publishing opinions continue to face new challenges due to advances in technology and research practices, such as judicial notice of the Internet, independent factual research online, databases of unpublished opinions, copy-and-paste content, and automated decision making. This article collects an assortment of guides, manuals, treatises, law reviews, studies and newsworthy mentions that address significant issues in judicial decision-making, opinion writing and case law publishing.
BOOKS, GUIDES AND REPORTS
Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts (NYS Judicial Inst. 7.4 ed 2004)
“This book-length pdf addresses New York judicial opinion writing from A-Z.”
Appellate Opinion Writing (FJC 1975)
“A discussion of three aspects of opinion writing: preliminary considerations; the anatomy of the opinion; and peripheral matters such as citations, quotations, and the use of footnotes. Presented at a Seminar for Federal Appellate Judges sponsored by the Federal Judicial Center, March 11-14, 1975.”
Appellate Procedure Resource Guide (NCSC)
“The most common structure for a state appellate court system involves one court of last resort with largely discretionary review, commonly called a supreme court, and one intermediate appellate court with largely mandatory review. Because of this jurisdiction, the intermediate appellate court is the court of final review for the vast majority of state court appeals. Ten states are without an intermediate appellate court. Various combinations based on mandatory versus discretionary jurisdiction, size of the courts, use of panels, geographical divisions, and division between criminal and civil jurisdiction by court exist in the state appellate systems. Links to related online resources are listed below.”
Blindfolds Off: How Judges Decide (ABA 2014)
“This important new book penetrates that veil of secrecy with thirteen interviews tape recorded in the chambers of the respective judges. The author, Mr. Joel Cohen, is a skillful and tenacious, though invariably courteous, interviewer. He has picked as the interviewees federal district judges who have presided in famous, publicity-attracting cases, cases most likely to challenge a judge’s fidelity to a passive, formalistic—which is to say traditional—mode of judicial decision making, and he has focused the interviews on those cases.”
Judging for Public Safety: 4 State Chief Justices Share Lessons of Sentencing and Corrections Reform (Pew 2014)
“The American judiciary traditionally has played only a supporting role in shaping criminal justice policy, believing that such work was appropriately left to the legislative and executive branches. Increasingly, however, judges are stepping outside their chambers to help craft reforms that they believe will not only improve the administration of justice, but also protect public safety, reduce recidivism, and save taxpayer dollars. Some justices are driven by what they see as a need to change laws and policies that have led to steep costs and high incarceration rates but have done little to reduce recidivism. Others say the judiciary’s unique perspective on offenders and crime is essential for achieving comprehensive reform. Pew’s public safety performance project recently spoke with four sitting and former state supreme court chief justices—Carol Hunstein of Georgia, John Minton Jr. of Kentucky, Paul De Muniz of Oregon, and William Ray Price Jr. of Missouri—about their role in justice reinvestment initiatives. Their advice to colleagues on the bench? Get involved. Your voice will make a difference.”
Judicial Opinion Writing Handbook (William S. Hein & Co. 5th ed. 2006)
“Reviews existing methods, styles, rules and techniques described in numerous books and articles. Forms and structure outlines serve as a guide to the judicial writer. This edition has been expanded to include a section on Judge’s Views, which contains comments and ideas from many prominent judges, as well as a section dealing with the criticism of judges which has become more prominent in today’s society.”
Judicial Writing Manual (FJC 1991)
“This manual is intended to encourage judges and law clerks to think critically about their writing – not only about what to include and what to exclude but also about how to write well. We expect that newly appointed judges and law clerks will be the principal users of this manual. It therefore takes a functional approach to opinion writing, describing the considerations that arise at each stage of the writing and editing process; recommending organizational, structural, and stylistic techniques; and explaining the reasons for its recommendations. In keeping with the principle that there is no single right way to write an opinion, the manual explores alternatives and the considerations for choosing among them.”
Judicial Writing Manual: A Pocket Guide for Judges (FJC 2nd ed. 2013)
“More than twenty years have passed since the Federal Judicial Center published the first edition of this manual on judicial writing. In that relatively brief time, many of our basic assumptions about written communication have been challenged profoundly by technological change. Like books, magazines, and newspapers, orders and opinions written by judges are more likely than not to take the form of digital images rather than tangible objects. Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition sought to teach are particularly important for judges’ writing. But the elements of good writing are remarkably constant, and we think that you will find the principles explained so thoughtfully in the first edition no less applicable today. [Jeremy D. Fogel, Director, Federal Judicial Center]”
Opinion Writing (Carolina Academic Press 3rd ed. 2012)
“This Third Edition of Opinion Writing breaks new ground for all writers of trial and appellate opinions—trial and appellate judges, administrative law judges, arbitrators, as well as current and aspiring law clerks. The differences between this edition of Opinion Writing and its predecessors are fundamental. To be sure, four core topics remain the same: (1) theoretical concepts underlying a judicial opinion; (2) the anatomy of an opinion; (3) writing style; and (4) opinion writing checklists. But this edition is more than a teaching text. Instead, it takes opinion writers by the hand and reveals to them step-by-step how to write a judicial opinion. It is more than “what”; it is “how.””
Statutory Structure and Legislative Drafting Conventions: A Primer for Judges (FJC 2008)
“This guide describes the statutory framework of federal law and examines some legislative drafting conventions, the knowledge of which may help judges with statutory interpretation.”
Administrative Justice, Better Decisions, and Organisational Learning, SSRN (2014)
“Every year, government takes millions of decisions on matters such as individuals’ entitlement to social security, their immigration status, and tax liability. There are significant and pervasive concerns about the quality of these decisions. Government case-workers can make poor decisions if they do not collect all the relevant facts or if they misinterpret the relevant legal rules and guidelines. Poor decision-making means more appeals and challenges, increased costs and time, and stress for the individuals involved. Over recent years, the “right first time” agenda has been advanced as a solution to this problem. This article critically examines this agenda and the mechanisms available to government agencies to improve their decision-making. Recognising the difficulties of measuring the quality of decision-making, it considers how poor decision-making arises and how it might be remedied. I [Robert Thomas] argue that to improve their decision-making, government agencies need to engage in organisational learning. This occurs when individuals within an organisation experience a problematic mismatch between expected and actual results and inquire into it on the organisation’s behalf. Organisations learn when they identify appropriate lessons from history which are then encoded into routines that guide future behaviour. The paper examines mechanisms to improve initial decision-making including: re-organising internal decision processes; using feedback from tribunals; making polluters pay; and modifying agency culture.”
Altering Attention in Adjudication, 60 UCLA L. Rev. 1586 (2013)
“Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when information concerning the cost of incarceration is made available to them. In the second study, we demonstrate that judges assess the credibility of an expert witness more favorably when lawyers present an additional expert with similar, albeit notably weaker, credentials. In the third, we show that the format in which prosecutors present forensic testimony can alter judges’ assessments of that testimony’s probative value. Finally, we demonstrate that judges’ willingness to ignore inadmissible evidence in a criminal case is affected by both the gravity of the crime and the severity of police misconduct. In each of these studies, varying the context in which judges review evidence or altering the form in which that evidence is presented shifts judges’ attention and alters their decisions.”
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory L.J. 779 (2012)
“Without doubt, the Supreme Court’s most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC. The Court has been subject to heavy criticism for this case. A Barry Friedman has pointed out in a recent Georgetown Law Journal article, the Supreme Court does not always move the law in such a prominent fashion. It also engages in “stealth overruling. when it “fail[s] to extend a precedent to the conclusion mandated by its rationale” or it “reduc[es] a precedent to nothing.”
I [Richard L. Hasen] leave to others the question whether the Roberts Court empirically engages in more (stealth) overruling than earlier groups of Supreme Court justices did, and even if the Roberts Court does so, whether a higher overruling rate is grounds for condemnation. Instead, the more modest aim of this brief Essay is to catalog additional tools that Supreme Court Justices can use beyond express and stealth overruling to move the law. I also explain why Justices might choose to use one, rather than another, of these tools to move the law.
In particular, I analyze four additional tools. Anticipatory overruling occurs when the Court does not overrule precedent but indicates its intention to do so in a future case. Invitations exist when one or more Justices (1) invite litigants to argue for the overruling of precedent in future cases or (2) invite Congress to overrule Supreme Court statutory precedent. Time bombs exist when Justices include within a case subtle dicta or analysis not necessary to decide it with an eye toward influencing how the Court will decide a future case. Inadvertence occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values.”
Atomism, Holism, and the Judicial Assessment of Evidence, 60 UCLA L. Rev. 1524 (2013)
“How should judges go about assessing the admissibility of evidence? In this Article, I [Jennifer L. Mnookin] explore a key and underexamined issue within evidence law: the interpretive tension between atomism and holism. Should judges assess the admissibility of an item of evidence atomistically—piece by piece, and by itself? Or should they engage in a more holistic, synthetic, and relational inquiry? I argue that there is not, and cannot be, any simple answer to this question, because judicial atomism versus holism turns out to implicate two further important tensions within our bifurcated trial system: the balance of power between the judge and the attorney, on the one hand, and between the judge and the jury, on the other. Moreover, the relation between these multiple issues turns out to depend significantly on whether the evidentiary assessment at issue is what I term a low-threshold evidentiary determination, tilted in favor of admissibility (like relevance, or Rule 403), or, instead, a high-threshold determination (like the assessment of expert evidence). This Article explores both an array of evidence doctrines and the extent to which they provide guidance to judges vis-a-vis atomism versus holism, and then looks in detail at how atomism versus holism operates in both low-threshold and high-threshold circumstances.”
Changing Discourse of the Supreme Court, 12 U.N.H. L. Rev. 29 (2014)
“Academics, judges and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most Americans. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices.
In response to the criticisms, a few academics have conducted empirical research to determine whether certain opinions of the Supreme Court are more readable than other opinions. The authors of those studies have also attempted to identify factors that might influence the readability of an opinion, including (1) whether the opinion is a majority or dissenting opinion; (2) the number of Justices joining the opinion; (3) the ideology of the Justice authoring the opinion; and (4) the subject matter of the underlying dispute.
None of the studies, however, have examined whether the Court’s opinions have, in general, become less readable over time, as many critics assert. The attached article compares the readability of the opinions issued by the Supreme Court in the 1931, 1932, and 1933 terms to the opinions issued by the Court in the 2009, 2010, and 2011 terms. Since some commentators have suggested that the obfuscation of Supreme Court opinions is related to the increasing complexity of issues that the Court is addressing, it seemed logical to compare the readability of the Court’s opinions from the 1930’s, at a time before the “staturification” of law, and the expansion of federal administrative programs during the New Deal, to the modern opinions. In addition to exploring whether the Court’s opinions have become less readable, this article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930’s or today, and whether that has changed over time. Finally, the article examines which Justices, in the 1930s and today, wrote the most readable and least readable opinions.”
Confronting Supreme Court Fact Finding, 98 Va. L. Rev. 1255 (2012)
“Supreme Court justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I [Alli Orr Larsen] call “in house” fact-finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse.
This article discusses how that change in technology has and will affect the Court’s fact-finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60% of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age – specifically the possibility of mistake, the systematic introduction of bias, and notice/legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.”
Copy-Paste Precedent, 13 J. App. Prac. & Process 153 (2012)
“The federal appellate courts now decide eighty-five percent of their cases through unpublished, nonprecedential opinions. These are meant to resolve disputes squarely governed by existing precedent; they are not supposed to make law. Scholars have paid little attention, however, to the process by which unpublished opinions are prepared — or to ways in which this process allows some unpublished opinions to become de facto precedent.
This essay identifies one such way. “Copy-paste precedent” arises when the text of an unpublished opinion gets repeatedly copied and pasted by staff attorneys drafting subsequent opinions on the same topic. Whereas ordinary precedent is meant to be reasoned and published, then cited and quoted, “copy-paste precedent” gets followed without being either cited or explicitly quoted, thereby gaining the influence of precedent without real precedent’s authority — or scrutiny. The obscurity of copy-paste precedent makes it, paradoxically, harder to correct or overturn than regular binding precedent and strips it of the rule of law, legitimacy, notice, and reliance values standardly invoked to support precedent’s use.
Drawing an example from the Second Circuit’s largely unpublished case law on the meaning of “social visibility” in asylum law — the subject of a deepening circuit split and a recent en banc opinion in the Ninth Circuit — this essay shows that copy-paste precedent can prove even more influential than a circuit’s precedential statements on the same subject. This essay calls attention to a set of decisions in which the law that gets copied and pasted is substantively mistaken. Its broader goal, however, is to show why copy-paste precedent is itself a mistaken way for courts to make law.”
Empirical Study of Supreme Court Justice Pre-Appointment Experience, 64 Fla. L. Rev. 1137 (2012)
“This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious. The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. The article argues that the change is regretful for multiple normative reasons, including the way these experiences lead to legal complexity in Court decisions, the lack of litigation or trial experience on the Court, and the lack of what virtue ethics calls “practical wisdom.””
Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008)
“There is no one right way to write a judicial opinion. This article does not seek to define the perfect judicial opinion. Rather, this article intends to show how form and substance must be laced with ethical considerations. Part I defines the concept of ethics as applied to judicial opinion writing. Part II explains the function and importance of opinions to the judiciary and the public. Part III explores the different types of audiences of judicial opinions. Part IV contains a general discussion of different opinion writing styles commonly used in judicial opinions. Part V discusses the ethical considerations present in pure opinions: Judicial writings whose constituent characteristics are highly formalized. Part VI explores the ethical considerations present in less formal judicial writings, otherwise known as impure opinions. Part VII reviews ethical considerations specific to pure and impure opinions. Finally, part VIII discusses the use of law clerks in writing opinions.”
Factual Precedents, SSRN (2013)
“This article carefully describes how lower courts are using Supreme Court facts today, and then argues that these factual precedents are unwise. The Supreme Court is not a fact-finding institution, facts change over time, and – unlike legal precedents – one cannot be assured that factual statements from the Supreme Court are carefully deliberated and carry the force of law. I [Alli Orr Larsen] argue that Supreme Court statements of fact should not receive any authoritative force separate from the force that attaches to whatever legal conclusions they contributed to originally. If a fact is so central to the legal holding that the two melt together, then the Court is free to so state and thus insulate the factual conclusion from future challenge; but the precedential treatment would come only from the legal component of the decision. The default rule, I suggest, should be no precedential value for generalized factual claims – even ones that can be found in the U.S. Reports.”
Finding the Limits of Equitable Liberality: Reconsidering the Liberal Construction of Pro Se Appellate Briefs, 35 Vt. L. Rev. 863 (2011)
“The most basic function of the American state and federal judicial systems is clear: provide appropriate relief on the merits of valid claims. Given the procedural labyrinth and complexities of common law practice, securing such relief on such merits can prove to be quite a challenge for even the most adroit lawyer. Thus, widespread efforts to reduce or even remove often arbitrary obstacles from the path of pro se litigants—a class of court-users ill-equipped to handle many of the greatest difficulties of navigating the judicial forum—represents a logical and apparently equitable effort to further the fundamental drive towards merits resolutions. Still, these judicial efforts to assist pro se litigants operate in constant tension with the idea that all litigants are entitled to equal access to the courts and administration of judicial power. This Article examines a very specific example demonstrating this tension and raising troubling constitutional concerns: the United States Courts of Appeals’ practice of liberally construing pro se briefing to avoid waiver or reach unbriefed arguments while dismissing or denying relief on the similarly situated claims of represented litigants. As implemented in a majority of the circuits, this practice—decoupled from any statutory mandate or rule of general applicability—affords pro se litigants enhanced appellate review without regard to their individual circumstances, sophistication, or reasons for proceeding pro se. Drawing from this examination, this Article explores a variety of options designed to encourage judicial efforts to protect pro se litigants on a more principled basis thereby affording equal protection to all court-users while advancing the goal of producing appropriate resolutions on the merits of valid claims.”
Forensic Science Evidence and Judicial Bias in Criminal Cases, 49 Judges’ J. 18 (Summer 2010)
“Although DNA exonerations and the NAS report have raised serious questions about the validity of many traditional non-DNA forms of forensic science evidence, criminal court judges continue to admit virtually all prosecution-proffered expert testimony. It is suggested that this is the result of a systemic pro-prosecution bias by judges that is reflected in admissibility decisions. These “attitudinal blinders” are especially prevalent in state criminal trial and appellate courts.”
Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?, Am J. Pol. Sci., (forthcoming 2014)
“In this paper, we ask whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child’s gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and it is the first paper to show that empathy may indeed be a component in how judges decide cases.”
It is Political: Using the Models of Judicial Decision-Making to Explain the Ideological History of Title VII, SSRN (2014)
“Scholars and observers often explain or interpret Supreme Court decisions based on the ideology of the sitting Justices. Many offer a similarly political account of the Court’s decisions in actions brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Certain events in the history of Title VII do suggest ideological decision-making by the Supreme Court. Dozens of the Court’s Title VII opinions are split between the conservative and liberal Justices. On three separate occasions, including most recently the Lilly Ledbetter Fair Pay Act of 2009, a more liberal Congress amended Title VII in order to override the Supreme Court’s conservative interpretation of the statute. Yet subsequent to each of these amendments, the conservative Justices continued to vote to restrict Title VII, apparently following their political preference over Congressional intent. The full history of Title VII, however, does not conclusively establish that the Supreme Court is deciding cases according to ideological viewpoint. Although numerous split decisions fall along ideological lines, other cases, including a number of unanimous decisions, reflect votes contrary to political viewpoint and potentially indicate a different dynamic. The fifty years of Title VII jurisprudence therefore present the opportunity to assess whether Justices’ votes on issues of employment discrimination are determined by their respective ideology.”
Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421 (1995)
“I [Judge Richard A. Posner] have been interested in the topic of judges’ writing styles since I became a judge in 1981, and have written a fair amount about it. But rereading what I have written I find that it lacks system and I welcome this opportunity to begin to repair the lack. I shall start by trying to explain the elusive concept of “style” and to distinguish it from related concepts, notably “rhetoric.” I shall also try to distinguish “good” from “bad” style and then, abstracting from the question of quality, sketch the two fundamental judicial styles. Borrowing a distinction from Robert Penn Warren, I call these styles the “pure” and the “impure” and associate them with two fundamental jurisprudential stances, the “formalist” and the “pragmatist.” Formalists tend to prefer the pure style, pragmatists the impure. Last I consider whether judicial style has more than symptomatic significance–that is, whether it has significance independent of the clues (not always reliable, as we shall see) that it provides to the jurisprudence of the writer.”
Judicial Education and the Art of Judging: From Myth to Methodology, U. Missouri Sch. L., Center for the Dispute Resolution Symposium (2014)
“This symposium seeks to improve the understanding of judicial education by considering several related issues. First, if judicial education is intended to improve those skills and attributes that are unique to judges, then it is critical to understand what it is that judges do. Therefore, a number of symposium participants will consider what it means to be a judge and what it is about judging that is different than other sorts of decision-making.
The second set of issues involves questions of pedagogy and purpose. For example, what is the goal of judicial education? Is it to convey information, skills or a particular cultural mindset? Indeed, is it even reasonable to aspire to teaching what might be called the art of judging? Though critical, these issues have seldom been discussed. Several panelists in this symposium will nevertheless address these core concerns.
The third and final set of questions relates to educational techniques. For example, how do questions of content affect teaching methodologies? Do judges want (and benefit from) courses in substantive or procedural law, or are skills- or theory-based sessions better? Given recent budget shortfalls, can distance learning replace person-to-person learning in some or all circumstances?”
Judicial Opinion Writing: An Annotated Bibliography, 17 Legal Writing 197 (2011)
“The purpose of this annotated Bibliography is to assist professional legal writers in easily locating writing about judicial opinion writing and deciding what might be useful for them. The annotations are intended to speed the process of selecting relevant resources. Professors can use this Bibliography in planning a course for upper-level students, be it advanced legal writing, a seminar for future judicial law clerks, or a judicial externship classroom component. Instructors of new and experienced judges can find additional materials here, and judges can find additional references for their chambers and resources for their clerks.”
Judicial Opinions and Appellate Advocacy in Federal Courts—One Judge’s Views, 51 Duq. L. Rev. 3 (2013)
“I [Judge Richard A. Posner] have been a federal court of appeals judge for thirty years, and naturally over this long span of time I have formed judgments about how federal court of appeals judges should go about deciding cases, what their judicial opinions should be like (which raises the issue of how judges should use staff, consisting mainly of law clerks), and how lawyers should brief and argue cases in these courts. My purpose in this article is to distill my beliefs concerning opinions and advocacy into practical advice for federal court of appeals judges, their law clerks, and the lawyers who practice before these courts.”
Librarian’s Guide to Unpublished Judicial Opinions, 96 Law Libr. J. 475 (2004)
“Mr. Gerken provides readers with an overview of the rules and practice related to the nonpublication of judicial decisions. Using a question-and-answer format, he offers a convenient reference source for librarians to consult when responding to patron inquiries about unpublished opinions. A selective annotated bibliography of articles on the subject is included.”
Measuring Circuit Splits: A Cautionary Note, SSRN (2014)
“A number of scholars have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures certainly represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, real precision is infeasible given the nature of the enterprise and the Court’s practices. Third, using the Supreme Court Database, which some studies rely on to identify cases resolving conflicts in the lower courts, exacerbates the problems because the Database is not well suited to the task of compiling a dataset of cases involving splits.”
(Non)Finality of Supreme Court Opinions, 128 Harv. L. Rev. ___ (2014)
“This article is the first to explore the Court’s practice of revising its opinions after initial publication, which one Justice privately referred to as “a strange and reverse basis” and a Court official described as “completely at odds with general publishing practices.” The article examines the depth and breadth of the practice since the Court’s first opinions through present days. It describes both the institutional reasons for the practice, which one Justice privately speculated extended to each Justice’s natural inclination to “rush to judgment” and “to get ‘on the scoreboard'” as soon as “all the votes are in” and possibly “to guard against any last minute shifting of a vote.” The article also describes how the Court’s related procedures for revision have shifted over time to become increasingly less transparent and potentially lacking in the degree of procedural fairness and rigor appropriate for opinions of the Court and of the Justices. The article recommends that the Court amend its current practices to provide at the very least for after-the-fact disclosure of changes made both to increase transparency and to provide, indirectly, some check against unnecessary substantive changes. The article further recommends that the Court consider the possibility of providing prior notice as well in certain circumstances.”
Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 1 (2009)
“The authors [Ruggero J. Aldisert, Meehan Rasch and Matthew P. Bartlett] – a federal appellate judge and his law clerks – bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert’s classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, 2nd Edition, an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students. This Article draws from and complements topics addressed in Opinion Writing, 2nd Edition, while specifically highlighting the relationship between opinion writing and opinion readers.”
Predicting the Behavior of the Supreme Court of the United States: A General Approach, SSRN (2014)
“Building upon developments in theoretical and applied machine learning, as well as the efforts of various scholars including Guimera and Sales-Pardo (2011), Ruger et al. (2004), and Martin et al. (2004), we construct a model designed to predict the voting behavior of the Supreme Court of the United States. Using the extremely randomized tree method first proposed in Geurts, et al. (2006), a method similar to the random forest approach developed in Breiman (2001), as well as novel feature engineering, we predict more than sixty years of decisions by the Supreme Court of the United States (1953-2013). Using only data available prior to the date of decision, our model correctly identifies 69.7% of the Court’s overall affirm/reverse decisions and correctly forecasts 70.9% of the votes of individual justices across 7,700 cases and more than 68,000 justice votes. Our performance is consistent with the general level of prediction offered by prior scholars. However, our model is distinctive as it is the first robust, generalized, and fully predictive model of Supreme Court voting behavior offered to date. Our model predicts six decades of behavior of thirty Justices appointed by thirteen Presidents. With a more sound methodological foundation, our results represent a major advance for the science of quantitative legal prediction and portend a range of other potential applications, such as those described in Katz (2013).”
Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends Upon Who is Asking, 36 Rutgers L. Rec. 48 (2009)
“A severe prejudice to the criminally accused persists today in some trial courts’ analyses under the helpfulness prong, the often overlooked part of the test to admit expert testimony. Removing the reliability prong from the discussion, this article focuses instead on courts’ treatment of qualified experts employing reliable methods under the helpfulness prong. Despite the straight-forward articulation of helpfulness, one of the unfortunate truths in criminal litigation is that trial courts frequently admit testimony from the government’s experts and exclude the defendant’s proposed expert testimony. This article explores the language and reasoning articulated by some trial courts in reaching the paradoxical admissibility determinations of experts with equally reliable methodologies. This article profiles witness identification expert testimony typically offered by the defendant as compared to expert testimony from law enforcement witnesses for the government. This article then describes the way in which the disparate admissibility determinations by the trial court escape meaningful review and the possible avenues to a more fruitful appellate review.”
Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421
“Almost all of the Supreme Court’s cases reach its docket through discretionary grants of writs of certiorari. Sometimes the Court reverses course and dismisses the writ of certiorari as improvidently granted, or DIGs the case. The Court’s use of DIGs raises a set of intellectually challenging and interrelated empirical and jurisprudential issues that have received relatively little attention in the scholarly literature. This article fills that gap in several ways. First, it comprehensively documents the cases the Court has DIGed in the Warren, Burger and Rehnquist Courts (1954 through 2004 Terms). It then considers related empirical issues, including whether these cases share characteristics, how often the Court collectively or through the opinions of individual Justices justifies, or criticizes, the DIG, and how often the issue raised in a DIGed case returns to the Court in subsequent litigation.
The article then revisits several jurisprudential issues that have been the subject of some debate on the Court itself and in the scholarly literature. Chief among these is how DIGs potentially undermine the long-accepted norm that only four votes are necessary to grant certiorari. The conventional though not universally accepted response is that to support the Rule of Four, at least six votes should be necessary to DIG a case. Support for this position on the Court is strong though not absolute, and the article explores why the Rule of Six for DIGs has enjoyed robust if not ironclad support. The article then turns to the reasons that ought to justify a decision to DIG, and whether the Court should issue opinions explaining the DIG. In over half of the cases, the Court has not issued such opinions, either collectively or through individual Justices. The article closes with an examination of whether DIGs should be conceptualized as an example of strategic behavior by the Justices, and concludes that in most instances that characterization is not warranted.”
Supreme Court and Legal Uncertainty, 60 DePaul L. Rev. 311 (2011)
“This essay is an outgrowth of a paper presented at the 16th Annual Clifford Symposium on Tort Law and Social Policy. Its thesis is that our contemporary Supreme Court all too often creates (or fails to reduce) legal uncertainty for no sufficient legal or policy reason. The essay focuses both on uncertainty about what the law is and uncertainty about whether the law will remain the same. The examples it addresses include (1) the Court’s inability consistently to adhere to its multi-factorial test for stare decisis in constitutional cases, (2) the Court’s refusal even to acknowledge that the dubious regime of Chevron deference creates enormous instability in federal regulatory law, (3) the Court’s inexplicable decision to wait twenty years before addressing the unclear and contested meaning of the “intangible right of honest services” mail-fraud statute, and (4) the Court’s precarious punitive-damages jurisprudence, an initiative to which the Court has committed substantial resources, but one whose future remains profoundly uncertain. In each instance, I [Stephen G. Gilles] suggest that the Court’s tendency to undervalue legal certainty and stability can be seen as a symptom of what Craig Lerner and Nelson Lund describe in a forthcoming article as “the Supreme Court’s Cult of Celebrity.” The almost complete freedom Congress has given the Justices to set their own agenda has resulted in a Court whose members tend to behave more like nine independent constitutional oracles than like self-effacing, craftsman-like, certainty-fostering judges. The fact that the Court is closely divided along ideological lines may exacerbate these worrisome tendencies, but they would persist even if a solid majority emerged – and regardless of whether it was liberal or conservative. That is bad news for anyone, of whatever political persuasion, who thinks legal certainty and stability should be among the Court’s top priorities.”
Technological Due Process, 85 Wash. U. L. Rev. 1249 (2007-2008)
“Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required agencies to provide individuals notice and an opportunity to be heard. Agencies could foreclose policy issues that individuals might otherwise raise in adjudications through public rulemaking. One system allowed focused advocacy; the other featured broad participation. Each procedural regime compensated for the normative limits of the other. Both depended on clear statements of reason.
The dichotomy between these procedural regimes has become outmoded. This century’s automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. Automated systems jeopardize due process norms. Their lack of meaningful notice, and a hearing officer’s tendency to presume a computer system’s infallibility, devalue hearings. Standard Mathews v. Eldridge cost-benefit analysis is ill-equipped to compare the high fixed cost of deciphering a computer system’s logic with the accumulating marginal benefit of correcting myriad inaccurate decisions. Automation also defeats participatory rulemaking. Code, not rules, determines the outcomes of adjudications. Programmers inevitably alter established rules when embedding them into code in ways the public, elected officials and the courts cannot review. Last century’s procedures cannot repair these accountability deficits.
A new concept of technological due process is essential to vindicate the norms underlying last century’s procedural protections. This Article shows how a carefully structured inquisitorial model of quality control can partially replace aspects of adversarial justice that automation renders ineffectual. It also provides a framework of mechanisms capable of enhancing the transparency, accountability, and accuracy of rules embedded in automated decision-making systems.”
Trial and Error: The Supreme Court’s Philosophy of Science, 95 Am. J. Pub. Health S66 (2005)
“In Frye (1923) the D.C. Court upheld the exclusion of testimony of the results of a then-new blood-pressure deception test on the grounds that novel scientific testimony crosses the line between the experimental and the demonstrable, and so is admissible, only if it is sufficiently established to have gained general acceptance in the particular field to which it belongs. Ignored for a decade, rarely cited for a quarter-century, over time the Frye test became increasingly influential, until by the early 1980s it had been adopted by 29 states.
In 1975, however, newly-enacted Federal Rules of Evidence had set a seemingly less restrictive standard: the testimony of a qualified expert, including a scientific expert, is admissible provided it is relevant (unless it is excluded, under Rule 403, on grounds of unfair prejudice, waste of time, or confusing or misleading the jury).In 1992 proposals to tighten up the Federal Rules were before Congress. In 1993 the Supreme Court issued its ruling in Daubert — the first case in its 204-year history where the central questions concerned the admissibility of scientific testimony. The Frye rule arose in a criminal case, and had for most of its history been cited in criminal cases; but Daubert was a tort action in which the trial court had relied on Frye in excluding the plaintiffs’ experts’ testimony that the morning-sickness drug Bendectin was teratogenic. So the Supreme Court was to determine whether the FRE had superseded Frye, and in particular how Rule 702 was to be interpreted.
Yes, Justice Blackmun wrote for the majority, the FRE had superseded Frye; but the Rules themselves require judges to screen proffered expert testimony not only for relevance, but also for reliability.
In dissent, however, pointing out that the word reliable nowhere occurs in the text of Rule 702, Justice Rehnquist anticipated difficulties over whether and if so how Daubert should be applied to non-scientific expert testimony; worried aloud that federal judges were being asked to become amateur scientists; and questioned the wisdom of his colleagues’ readiness to get involved in philosophy of science. I [Susan Haack] think he was right to suspect that something was seriously amiss; in fact, what I shall have to say here might be read as an exploration, amplification, and partial defense of his reservations about that philosophical excursus.”
Trial by Google: Judicial Notice in the Information Age, SSRN (2013)
“This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.”
Typology of Judging Styles, 107 Nw. U. L. Rev. 1757 (2013)
“This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I [Corey Rayburn Yung] offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.”
Unanimity and Disagreement on the Supreme Court, SSRN (2014)
“In 2013, the Supreme Court showed an unusually high rate of unanimous decisions – the highest, in fact, since 1940. This increase in unanimity, long favored by Chief Justice John Roberts, places a spotlight on an insufficiently appreciated fact: In 1941, the Supreme Court experienced a radical transformation. Almost immediately, it changed from a court that had operated by consensus, with very few separate opinions, into something closer to nine separate law offices, with a large number of dissenting opinions and concurrences, and with a significant rate of 5-4 divisions. Remarkably, the patterns established in the early 1800s continued until 1941, and the patterns established in the early 1940s have persisted to the present day. The transformation of 1941 appears to be attributable, in significant part, to the leadership style of Chief Justice Harlan Fiske Stone, who had no aversion to separate opinions and split decisions, and who was a frequent dissenter himself. The transformation offers general lessons not only about consensus and dissent within courts, but also about broader relationships among leaders, personnel, path dependence, prevailing norms, and the Court’s future. With respect to group behavior, it suggests the possibility of multiple equilibria: With small differences in leadership style and prevailing norms, the level of publicly expressed dissent can either grow or wither. With respect to the normative issues, the standard arguments in favor of a higher level of consensus within the Court – pointing to the values of legitimacy, stability, and minimalism – rest on fragile empirical foundations. It is true that a badly fractured Supreme Court can create uncertainty, and that internal divisions have costs as well as benefits, but there is no sufficient reason to hope for a return to the pre-1941 patterns.”
Virginia Woolf and the Judicial Imagination, SSRN (2012)
“Envisage courts of law integrating best judgment with the gift of imagination. What if our legal system could be administered from a place of connected empathy? How could such a quantum shift in judicial attitude work in reality? Drawing on passages from ‘Mrs Dalloway’ and ‘To the Lighthouse’, Virginia Woolf and The Judicial Imagination constructs a conception of law with a literary core, suggesting that improvements in judicial decision-making are certainly a challenge but are feasible if emotions are thought of not as unintentional or non-cognitive impulses, but as a substance through which the imagination is cultivated. In this groundbreaking work, Jeremy C Bradley demonstrates the extent to which Virginia Woolf’s narratives portray vulnerability and assign value to emotions. Bradley further argues for the inclusion of narrative within legal theory as a means to improve law’s aims. Through cultivation of the ‘judicial imagination’, judges develop and broaden their capacity for empathetic reasoning. The imagination is our most personal, emotional and perceptive link within ourselves and with those around us. Bradley expands on this notion and in the process discovers a new literary and judicial paradigm with which he takes us through a journey to discover new insights within Woolf’s work that once again demonstrate her timeless relevance.”
Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010)
“Over the last few years–and especially following the 2006 Term–commentators have criticized the Supreme Court for engaging in “stealth overruling.” This Article examines the phenomenon, trying to ascertain why the Justices engage in the practice and how we should feel about it. The Article focuses on the gradual overruling of Miranda v. Arizona because here tangible evidence is available about the benefits to the Justices–and costs to the rest of us–of the practice of stealth overruling. The Article demonstrates that by engaging in stealth overruling the Justices are able to see that their will is done by lower courts and public officials, yet they avoid arousing negative public opinion. While this strategy benefits the Justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling suppresses the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law largely in the Justices’ hands.”
When Judges Err: Is Confession Good for the Soul?, 56 Ariz. L. Rev. 343 (2014)
“This essay focuses not on commendable explanations of why judges change their minds about the appropriate rule of law after mature reconsideration, but instead on, for want of a better description, how courts handle the judicial “”goof”–getting the applicable facts or existing law dead wrong. Interestingly, although many examples can be found of judges explaining why their previous view of the law has evolved, there are relatively few published decisions acknowledging common human error. My thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional “goof.” Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.”
Writing Appellate Decisions Observations of a Rookie Appellate Judge, Judges’ J. (Winter 2014)
“This article shares some observations from my rookie year on the art, science, and idiosyncrasy of writing appellate decisions. In doing so, some substantial caveats are in order: Every case is unique, every judge is different, almost every suggestion has exceptions, and what may work for nearly all cases doesn’t work for others. I [Judge Samuel A. Thumma] also do not claim to be a gifted writer in any respect. When I do provide clarity in writing, my best hope is to do so in a meat and potatoes sort of way. Finally, the views here are mine alone based on my own observations. With these significant limitations, here are some of my observations on writing appellate decisions based on my rookie year as an appellate judge.”
Advice to Law Clerks: How to Draft Your First Judicial Opinion, Westchester B.J., Spr./Sum. 2009
“This article offers advice to new law clerks and judicial interns on how to help their judges draft a judicial opinion.”
Alito’s Statistics Lesson Misses the Mark in Death-Penalty Dissent, Experts Say, Wall St. J. Law Blog, May 28, 2014
“Justice Alito’s forceful dissent in Tuesday’s death penalty ruling contains what statistician experts say are at least two mistakes — one of them having significant bearing on the argument that he and three other colleagues who joined him leveled against the majority. Both apparent errors have to do with statistical tools for measuring the accuracy of an IQ test, a central issue in a ruling that gave intellectually disabled defendants greater protection from the death penalty.”
Clever Piece of Code Exposes Hidden Changes to Supreme Court Opinions, Gigaom, June 12, 2014
“The Supreme Court has long made surreptitious changes to its opinions without telling anyone. In response, a coder has created a tool that flags and publicizes those changes.”
Detecting Judicial Corrections, Free Law Project, May 3, 2014
“One of the goals of the CourtListener platform is to enable others to analyze judicial opinions. To that end we provide all of our data as bulk downloads and try to archive any opinion that a court publishes.”
Electronic Plagiarism? The Dangers of the Cut-and-Paste, UK Human Rights Blog, May 26, 2013
“A judge hears a case and accepts one party’s version. That party provides a convincing closing speech (in a Word document) which the judge lifts, makes some modifications, and circulates as his judgment. What is wrong with that? Put it another way, does the judge have to re-invent the wheel by paraphrasing the arguments of the parties? What is wrong is the appearance that the judge has not really engaged with the arguments of the losing party – as the Court of Appeal emphatically pointed out in their judgment.”
Elena Kagan’s Very Jewish Dissent—and Mistake, The Tablet, May 5, 2014
“While I [Yair Rosenberg|] hate to quibble with Justice Kagan’s laudable–if debatable–effort to bring the Jewish story to bear on contemporary jurisprudence, setting aside the merits of her argument, Kagan made a small but important factual error. Newport was not “the home of the first community of American Jews.” That distinction belongs to New Amsterdam, where Jews fleeing persecution settled in 1654, and quickly established a flourishing community despite many obstacles, as recounted by Jonathan Sarna in his Yale University Press book American Judaism. (Newport is home to the country’s oldest standing synagogue, where Kagan spoke last year, which may have been the source of the confusion.)”
Errors in Supreme Court Opinions, Wash. Post (Volokh Conspiracy), May 2, 2014
“It’s important to notice these errors, both so they can be corrected (the EPA v. EME Homer City error was, the Reno v. ACLU error wasn’t), and so that people remember that even Supreme Court opinions should not be trusted implicitly. Indeed, I [Eugene Volokh] give the Reno v. ACLU error as an example in my Academic Legal Writing book, to illustrate the proposition that law students writing law review articles shouldn’t rely on intermediate sources, but should read, quote, and cite the original source: If you want to talk about what Pacifica or Ginsberg involved, don’t just trust how a later opinion describes it, but go back to the original.”
Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing, NY Times, May 25, 2014, at A1
“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”
In Court Ruling on Executions, a Factual Flaw, NY Times, July 2, 2008, at A1
“When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either. This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President George W. Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.”
Judges May ‘Cut and Paste’ When Writing Their Judgments: Supreme Court, Globe and Mail, May 24, 2013
“Judges who cut and paste material they did not write into their judgments are not plagiarists, the Supreme Court of Canada has ruled. Moving to resolve a tricky problem judges encounter regularly, the court said on Friday they may incorporate external material into decisions provided they have applied themselves diligently to the legal issues in the case. “To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment-writing,” the court said.”
Judges Revising Opinions After Their Release, Citing Legally, Apr. 29, 2014
“When judges release decisions containing similar bits of sloppiness, the process for correcting them is far less certain and, with some courts, far less transparent. What sets courts apart from other law enunciating bodies in the U.S. is their widespread practice of unannounced and unspecified revision well after the legal proceeding resulting in a decision binding on the parties has concluded. Several factors, some rooted in print era realities, are to blame.”
Justice Scalia Makes Epic Blunder in Supreme Court Opinion, TPM, Apr. 30, 2014
“Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.”
Justice Stevens Made the Same Mistake Before Justice Scalia, Wash. Post (Volokh Conspiracy), May 2, 2014
“When the Supreme Court misrepresented federal law in Kennedy v. Louisiana, it took a blogger to catch the mistake. When Justice Antonin Scalia was accused of making an “unprecedented” error in his EPA v. EME Homer City Generation dissent, it took a law student to discover that another justice had made the same mistake in an earlier opinion.”
Justices Are Long on Words but Short on Guidance, NY Times, Nov. 18, 2010, at A1
“The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship. In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”
More About EPA’s Victory, Legal Planet, April 29, 2014
“Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted. This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.”
Novels Every Supreme Court Justice Should Read, The Atlantic, Dec. 17, 2013
“But naming no names, I [Garrett Epps] think some of the nine might profit from a few lessons in how others feel. As our legal system grows more powerful and complex, lawyers and judges alike really have become more like technicians than were the giants of an earlier era. Some of that is inevitable—in an age of 1,200-page statutes, the ability to sort Subsection 123(a)(ii)(f) from Subsection 123(a)(ii)(g) demands a kind of niggling precision not needed back in the days when lawyers argued from Blackstone, Shakespeare, and Magna Carta. But some of it is the product of the vast scale of both society and its legal apparatus. And, let’s be frank, some of it is the product of the privileged lives our justices live, surrounded only by deference and approval, safe for life from any fear of sickness and want.
I asked a few observers of law and letters which books they would prescribe for the current justices. Robert Ferguson, a legal scholar and literary critic who teaches at Columbia Law School, suggested that every justice ought to read a volume of writing by prisoners. (His new book, Inferno: An Anatomy of American Punishment, examines why Americans are so much more eager to punish than citizens of other advanced nations.) “Bell Gale Chevigny’s Doing Time: 25 years of Prison Writing is one I use, but there are others,” he said. “Most judges have no clue of the hell holes they are sending people into.””
Rappers v. Scotus: Who Uses a Bigger Vocabulary, Jay Z or Scalia?, Slate, June 12, 2014
“What kind of writers are the justices of the Supreme Court? Scalia is reputed for writing trenchantly, Roberts and Kagan with wit, and Kennedy in garrulous and sentimental style. But what do you find if you rigorously analyze the complexity of their vocabularies? New methods for rigorous textual analysis make it possible to answer this question.”
What Makes a Good Appellate Judge?, N.Y.L.J., Dec. 2, 2013, at 6
“This piece reflects upon important qualities that a good appellate judge should possess.”
When One Justice Makes a Mistake, It is an Embarrassing Blunder. But When 9 Do, Silence., Election Law Blog, May 4, 2014
“These mistakes are easy to flag as mistakes because there is another precedent to compare—the mistake consists of how a prior case is characterized. But consider another kind of mistake: where a Court opinion mischaracterizes the law in a way that changes the law in a major way, perhaps through inadvertence. That’s what happened with a case on the standard for permanent injunctions a few years ago, eBay v. MercExchange. This kind of error is much more serious than the kind of error Justice Scalia made, which changed neither the holding of a case nor the standards lower courts would apply to a legal issue. The error I [Rick Hasen] described has changed the law in profound ways, and the Court has never acknowledged that it might have resulted from an error.”
Writing a Brief for the iPad Judge, Columbia Bus. L. Rev., Jan. 14, 2014
“”Know your audience” is a fundamental rule of skillful writing. For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets. According to experts on legal writing, this change in reading should trigger a similarly significant change in writing.”
1 See generally Judicial Writing Manual (FJC 1991)(“Judicial opinions serve three functions. First, written opinions communicate a court’s conclusions and the reasons for them to the parties and their lawyers. Second, when published, opinions announce the law to other lawyers, judges, academics, and the interested public. Finally, the preparation of a written opinion imposes intellectual discipline on the author, requiring the judge to clarify his or her reasoning and assess the sufficiency of precedential support.” Id. at 1).
2 See, e.g., New Jersey Manual on Style for Judicial Opinions (Sup. Ct. NJ 2004); New York Law Reports Style Manual (NY Law Reporting Bureau 2012); Supreme Court of Ohio Writing Manual (Ohio Sup. Ct. 2nd ed. 2013). See also Manual for Administrative Law Judges and Hearing Officers (NY 2002).
3 See Shirley S. Abrahamson, Judging in the Quiet of the Storm, 24 St. Mary’s L. J. 965 (1993)(“American legal historian Calvin Woodard wrote: “[f]rom an early date in this country, unlike England, a jealous public developed two major means of controlling the virtually unlimited powers of the judiciary: (1) requiring the judges to publish written opinions justifying their decisions, and (2) freezing the English doctrine (or really guild custom) of precedent into an ironclad rule of stare decisis, binding the judges absolutely to follow the holdings of earlier cases.” Calvin Woodard, Justice Through Law—Historical Dimensions of the American Law School, 34 J. Legal Educ. 345, 353 (1984).” Id. at 988 n. 68.). See also Jane Williams, Survey of State Court Opinion Writing and Publication Practices, 83 Law. Libr. J. 21 (1991); Precedential Effect of Unpublished Opinions, 105 A.L.R.5th 499.
5 See generally Dov Fox, Neuro-Voir Dire and the Architecture of Bias, 65 Hastings L.J. 999 (2014); Nicole Negowetti, Navigating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigators, SSRN (2014); Daniel S. Medwed, The Good Fight: The Egocentric Bias, the Aversion to Cognitive Dissonance, and the American Criminal Law, 22 J.L. & Pol’y 135 (2013).
6 Legal publishing and research are not flawless and errors can escape the attention of the most conscientious. This is similar to the questions raised by the quality of peer reviewing in scientific journals. Indeed, litigation involving scientific evidence is necessitating new kinds of experts on publishing and bibliography, e.g., journal publishers, peer reviewers and librarians, to testify about the process by which information is vetted and accepted by the community of scholars. See Ken Strutin, Shepardizing Science: Is an Article Fact or Fiction?, NYLJ, Sept. 28, 2011, at 5; Ken Strutin, Forensic Bibliometrics: Information Quality Assurance in Scientific Literature, LLRX, Jan. 16, 2012. See also Michael Hoenig, ‘Unreliable’ Articles: More on Peer Review’s Frailties; Complex Litigation, NYLJ, June 9, 2014; Michael Hoenig, ‘Unreliable’ Articles, ‘Trial By Literature’ Revisited; Complex Litigation, NYLJ, May 12, 2014, at 3; Michael Hoenig, Testifying Experts and Scientific Articles: Reliability Concerns, NYLJ, Sept. 16, 2011, at 3; Michael Hoenig, Gatekeeping of Experts and Unreliable Literature, NYLJ, Sept. 12, 2005, p.3. See generally Chris Graf et seq., Best Practice Guidelines on Publication Ethics: A Publisher’s Perspective, 61 Int. J. Clin. Pract. 1 (Jan. 2007).
7 In re Copland, 33 N.E.2d 857, 858 (Ohio Ct. App., Cuyahoga County 1940).
8 293 U.S. at 412 (“First. The controversy with respect to the provision of S 4 of Article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the Code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist.”). See Erwin N. Griswold, Government in Ignorance of Law a Plea for Better Publication of Executive Legislation, 48 Harv. L. Rev. 198, 204 (1934).
9 See Thomas E. Baker, Book Review: A Review of Corpus Juris Humorous, 24 Tex. Tech L. Rev. 869 (1993)(“[T]here is at least one bogus opinion in the national reporter system. The case purportedly involved two defendants in companion drug prosecutions, consolidated for trial and appeal, who were identical twins named Kelkenny and Gallico Catt. The elaborate issues on appeal had to do with mistaken identity, impossibility, and finespun theories of lesser included offenses. The convictions were affirmed in an opinion containing several clues that it was a hoax. Apparently, through some misunderstanding, West published the opinion in Southwestern Reporter, Second Series. After realizing the hoax, West editors did not include the decision in any index or digest.” Id. at 879). See generally Judicial Humor (Gallagher Law Library Updated June 7, 2013).
10 See Brunson v. State, 327 Ark. 567 (Ark. 1997)(“Also remarkable is the majority’s statement that it would be illogical to say none of four occupants of the vehicle could be arrested even though a marijuana smell came from the car. That suggests that when an officer reasonably suspects a crime has been committed by someone in a vehicle, all of the occupants of the vehicle may be arrested and searched. It is reminiscent of the opinion by Justice George Rose Smith in Catt v. State, 691 S.W.2d 120, delivered April 1, 1985, which appeared in the Arkansas Advance Reports at 285 Ark. 334, 691 S.W.2d 120, but which, sadly, did not make it into the bound volume. There, Justice Smith wrote to affirm the convictions of twin brothers, tried jointly, because an officer identified one of them, or someone who looked enough like him to be his twin brother, as having sold the officer cocaine. Justice Smith wrote, “We have no alternative except to hold that each verdict is supported by Officer Javert’s unshaken identification of the culprit, no matter who he was. My appreciation of the literary value of Catt v. State, supra, which has been cited as far away as Delaware, see The [Wilmington] News Journal, p. B4, [April 12, 1996], is so strong that I could never agree to overrule it. The logic espoused in support of the Catt brothers’ convictions should not, however, be extended to the search and the arrest of Mr. Brunson.” Id. at 576-576A).