Legal Writing
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Judges who write colourful opinions which might be full of life and interesting are undermining the integrity of the judicial function and the legitimacy of opinions, a regulation professor has argued in an upcoming regulation evaluation article.
“Judicial opinions should conform to an even-keeled, impassive and even formulaic institutional style,” wrote Nina Varsava, a professor on the University of Wisconsin Law School.
Varsava’s article shall be printed within the Houston Law Review, Alison Frankel studies in an On the Case column for Thomson Reuters. Varsava instructed Frankel that a part of her goal “is to make people think about what we mean by a well-written opinion.”
Varsava argued that judges who attempt for trendy writing usually tend to be disrespectful or unfair to litigants who aren’t characters in a narrative. That form of writing can heated discussion with judges’ duties to be neutral, she mentioned.
“An opinion in which the facts are arranged into an engaging story may well be more compelling than one in which the facts are relayed dryly and impassively,” Varsava wrote. “To make a compelling narrative out of a case, though, a judge may have to shape the individuals involved into good guys and bad guys and to gloss over facts and law that would go against the good guys.”
Parties to a authorized dispute have a proper to assume that their arguments have been taken critically, and that occurs when judges use opinions to speak info and factual interpretations that favor both sides.
“But this kind of balance does not lend itself to the ‘strong dramatic arc[s]’ that many commentators want to see in judicial opinions,” Varsava mentioned, quoting a authorized writing professional.
Varsava mentioned judges are broadly inspired to put in writing in a full of life, particular person fashion, and journalists are a part of the issue. As an instance, she cited an ABA Journal headline that learn, “Gorsuch writes reader-grabbing opinions with fact summaries that are ‘a form of wry nonfiction.’”
The story, printed earlier than Justice Neil M. Gorsuch was confirmed to the U.S. Supreme Court, cited an appellate opinion by which Gorsuch wrote: “Haunted houses may be full of ghosts, goblins and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago, he recovered from his injuries, received a settlement and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.”
While commentators “wrote enthusiastically” about Gorsuch’s fashion, the sources didn’t talk about the authorized evaluation, Varsava mentioned.
Varsava mentioned Gorsuch went on to provide extra particulars in regards to the incident, which appears to serve just for dramatic impact in an “otherwise dry and banal dispute between insurance companies.” The narration “distracts from the live legal issues, compromising the opinion’s guidance value,” she wrote.
Varsava additionally cited an opinion by Justice Elena Kagan regarding the admissibility of proof obtained via a canine sniff. The sniff “was up to snuff,” Kagan wrote.
That’s a pleasant flip of phrase, Varsava mentioned, but it surely appears to make mild of the case by which a defendant was sentenced to 2 years in jail primarily based on the proof discovered.
“Narrative and literary flair in judicial opinions admittedly have potential benefits—making the law more accessible, for example, and possibly even more likely to be accessed,” Varsava wrote. “But the potential benefits of aesthetically pleasing and narratively persuasive opinions have ethical costs: a judge’s efforts to please, entertain and persuade can interfere with fundamental judicial duties, including those of impartiality and candor, and can compromise the legitimacy of the adjudicative process.”
Varsava thought-about attainable mechanisms that would take a few of the aptitude out of judicial writing, together with a proposal to ban judges from signing their names to majority opinions. Such a change might scale back judges’ incentive to face out stylistically and improve incentives to deal with the legitimacy of the court docket, she argued.
Hat tip to How Appealing.
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