29 November 2016

Topics Safe Enough To Risk Offending An Influential Academic Over

A new micro-symposium at SSRN provides counterpoints to and elaborations of University of Chicago law professor Richard Posner's essay, "What Is Obviously Wrong With The Federal Judiciary?" with only bylined pieces permitted.

The abstract stated:
After Richard Posner gave the Green Bag’s readers a double dose of “What Is Obviously Wrong With the Federal Judiciary,” we invited them to comment on his comments on the courts. So did he: “What I would most like to see would be criticism of the criticisms that I have made of the federal judiciary, and of the American legal culture more broadly, in this two-part article and at much greater length in Divergent Paths (and earlier books and articles). 
The Bluebook must have its defenders – let them defend their precious tome from me. And so must the awful legal jargon found in so many judicial opinions, and their verbosity; the superfluous headings and subheadings; the silly flourishes; the paeans to the adversary system; the pattern jury instructions; the standards of review; the dread of the italicized period; the spittoons behind the Supreme Court’s bench. The list goes on and on... But no; it seems I am to remain a voice crying in the wilderness. Pretty depressing.” This micro-symposium should inspire in Posner both a new cheeriness and more of the same old depression.
On which issues did academics (and perhaps a few practicing lawyers) dare challenge the judge?

* Which is the correct spelling of the latin legal phrase, "Ejusdem generis" or "Euisdem generis"?

* Headings and subheading in judicial opinions are important contrary to Posner's claim.

* An originalist method of interpretation of the constitution has some impact on the outcome of the case apart from the intended result of the person using it. Posner joins with an essay rebutting this and claiming that the so called originalist method advanced in the essay is "Faux Originalism".

My Two Cents On Other Matters

In Defense Of The Bluebook and the Italicized Period.

I was a Manual Of International Legal Citations editor during my term on the Michigan Journal of International Law, and in that post I gained some appreciation of the Bluebook (the leading legal citation style guide published by a consortium of three leading law school law reviews). 

Posner's University of Chicago style guide is its chief competitor in the marketplace for legal citation style guides, so he can fairly be accused of partiality.

What is good about the Bluebook?

When you write a law review or legal opinions or a legal brief, you must make stylistic choices about citation formatting whether you want to or not.  The decision to include a period in or outside italics, which is often hard to discern in print, is one such choice.

A good law review, court or law firm does so consistently and in a manner that has some outside justification for the choices made just like every other argument in persuasive legal writing. An authoritative ruling on every possible choice that could be made in formatting a citation, eliminates the need for the rest of the sane population of the world to debate these issues that must be decided to produce a finished work, but add little value of their own.

The core rules of the Bluebook are simple to apply in the handful of cases that make up 95% of legal citations, follow a common logic, and recognize the distinction between the more elaborate publishing register of an academic journal, and the more practical publishing register of a legal opinion or brief. The rest of the Bluebook provides guidance for myriad rarely used sources with examples that an author might otherwise fear to cite at all for fear that there is no proper legal citation for them. Thus, it implicitly broadens the scope of what is considered legitimate legal authority.

Also, the Bluebook's core rules (which I more or less follow in citations at this blog and its sister blog) thankfully eliminate much of the extraneous information required by ordinary academic journal style guides which are superfluous in legal writing, because, for example, the publishers of the leading case reporters are well known and the authorship of binding legal precedent is often irrelevant. 

The list of standard abbreviation conventions in the Bluebook is also particularly useful, and its jurisdiction by jurisdiction summaries provide a quick outline of the entire range of authoritative legal sources in existence.

In Defense of Legal Jargon In Court Opinions

Today, more than ever, legal researchers engage directly with source materials such as court opinions and statues, using word searches. 

In a word search, you only turn up cases that use the buzzwords of legal jargon you mention. An opinion that substitutes "plain English" for legal jargon will often be missed causing researchers to fail to identify relevant law since they no longer usually search using "digests" that organize case headnotes by subject matter regardless of the terminology used.

So, legal jargon in court opinions is more important now than ever before.

In Defense of Pattern Jury Instructions

At the end of every trial, the judge must devise jury instructions with input from the lawyers for both sides of the case relying on the relevant case law. There is infinite variety in how this can be done from scratch, which leads to constant legal battles over jury instruction language by counsel for both sides that is often critical on appeal because this is how all conclusions of law are implemented in a jury trial.

Yet, the vast majority of jury trials involve a modest subset of the entire law presenting legal issues that sometimes recur in every case, and sometimes recur in every case of a particular type.

Pattern jury instructions allow judges and counsel to dispense with wasteful argument over the details of jury instructions on matters where the law is settled that are tangential to the issues at hand for the jury (such as a lengthy description of their power to evaluate the evidence and the burdens of proof that apply). This frees up precious judicial and counsel resources at a time when a jury has heard all of the evidence and is waiting around to receive the case, to focus on the legal issues that are disputed and particular to the case at hand. It also insures relative uniformity across the judicial system.

In Defense of The Spittoons Behind the Supreme Court’s Bench

Why exactly would it be better for Supreme Court justices to spit on the floor than to spit into a spittoon? Duh!

And, if the spittoons were placed in front of the Supreme Court's bench, counsel presenting their cases to the court and the audience hearing oral arguments would be in line of fire of judicial spit. It is hard enough for them to face sharp questioning without having to dodge judicial spitballs as well.

In Defense Of Stating Standards of Review

Standards of review are obviously important to securing the right result in a case, and calling attention to this in each decision and brief, while somewhat redundant, does focus the authors on the task at hand in a manner that is often outcome determinative. Also, while the standard of review is clear to the participants even if not stated, it is helpful to state this so that clients and the public can better understand opinions.

In Defense of Verbosity

Verbose judges do so because (1) they seek to explain every element of their reasoning, and (2) it is faster to write a long opinion than a carefully honed smaller one. Both are desirable in the conditions they face relative to the common prior practice of dismissing arguments raised by counsel out of hand without any reasoned justification whatsoever.

No comments: