In the Opinion of the Court by William Domnarski, Paperback | Barnes & Noble
In the Opinion of the Court

In the Opinion of the Court

by William Domnarski

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Editorial Reviews

Paul Lermack
Although judges feel constrained by law in the content of their opinions, they have complete creative control of their literary styles. They may choose to write for an audience of specialists or lay persons, briefly or at length, clearly or ambiguously, directly or circuitously, in simple language or in paragraphs decorated with figurative or rhetorical devices. They may write narrowly, dealing only with dispositive points, or fill their essays with dicta. Judges may choose to write expository prose, argumentative prose, or political propaganda. Opinions show more stylistic variation than any other literary genre. Because judges are free from the commercial constraints that bedevil novelists, filmmakers and all other literary artists, they are free to determine how, and how much, literary variables influence the development of law. But opinions influence public opinion and public policy as well as law. If, as Joseph Vining has argued (1986), the legitimacy of American courts comes from the natural respect which citizens feel when they perceive creative minds wrestling with important public problems, then opinions-- the basic means by which judges communicate with the public--are central to maintaining that legitimacy. For this reason, we worry when the lower federal courts make it difficult to follow their work by burying us in more than eighty thousand pages of new text each year. And we worry even more when the Supreme Court issues fragmented seriatim opinions which make it difficult to understand the law and even more difficult to teach it. It is not surprising that the impact of style on legal substance is now being studied by policy scholars as well as by literary scholars and lawyers. William Domnarski, an attorney in private practice in Minneapolis, has assisted this scholarship by discussing various aspects of the history of federal opinion-writing. His brief book can be divided into three loosely related parts. The first two chapters are a history of who wrote opinions and how they were disseminated; in them, Domnarski explores the backgrounds of some important federal judges, traces the increasing importance of law clerks (who introduced the heavily footnoted law review style), and explains how entrepreneurial court reporters yielded control of opinion publication to that legal leviathan, West Publishing Company. Along the way we learn that early justices often wrote for the general public to mobilize support for common law courts; that political appointees in the nineteenth century were often of poor quality; that the first numbered footnote did not appear until 1887; and that law clerks, so indispensable today, have only recently come to draft most federal opinions. In the second third of the book, Domnarski traces the relationship between substance and style in Supreme Court opinions. Though he has done some quantitative research on workloads and on judicial education in various historical periods, his discussion is only tangentially quantitative. Domnarski is an enthusiast of the genre. He is obviously delighted by good legal writing; his attention is caught by the felicitous phrase, the well-chosen example, and the arresting metaphor. Alone among scholars he appreciates, and can communicate his love for, the subtle and frequently deadpan humor that judges sometimes use. We find good prose playing a key role in familiar episodes: Brandeis introducing scientific evidence; the rivals Black, Douglas, Frankfurter and Jackson all spurring each other on to heroic efforts; and Warren consciously aiming opinions at the general public to persuade them to support his egalitarian reforms. But the highlights are all in the past. In sorrow, Domnarski concludes that present Supreme Court opinions are uniformly colorless. Now, a straightforward style rarely does justice to factual or political complexities, and bland law clerk prose smothers vibrant issues like a monotone voice smothers a pretty tune. Although I agree with this conclusion, I donÆt think Domnarski has devoted enough space to supporting it. He asserts that Miller, Taney and other judicial ancestors were good writers without providing supporting texts. Although he provides brief examples of the styles of Jackson and other justices he admires, he doesnÆt provide the long examples we need to judge whether each style furthers the purpose of the justice who adopted it. Except for a few dissents, he provides little explication of the narrow and often poorly argued prose of the present Supreme Court. Domnarski attempts exemplification in Chapter Four, "The Canon," in which he discusses the relationship between style and substance in eleven important Supreme Court opinions. But he has only fifteen pages to present his selection criteria, justify his selections, and discuss all eleven cases. To do justice to the subject, Domnarski needs a longer book. Students may get more benefit from case studies of one or two opinions, like Carter (1991) or Cover (1983). The most interesting part of the book is DomnarskiÆs exploration of the relationship of style to substance in lower federal court opinions. I pity Domnarski the enthusiast, because he had to read through the haystack of the federal reporters, 95% of whose opinions (he estimates) show no judicial flair whatsoever, to find a few well written needles. He concentrates on these, tracing the rare flash of creativity to the example of such good writers as Learned Hand and Henry Friendly, to the constant press and pull of new issues, and to the fact that lower judges have to negotiate their prose with fewer, or no, colleagues. Domnarski does a good job describing the distinctive styles of Hand, Friendly and Frank Easterbrook. And he presents a lengthy example, devoting a whole chapter, 40 of his 155 expository pages, to Richard Posner. Posner may not be a good model for other judges, if only because his work habits seem beyond the reach of mere mortals. He can write legal prose faster than most people can read it. Since 1982, while he continued his scholarly career by producing thirteen books and 95 journal articles, he has written every word (Domnarski insists) of more than thirteen hundred opinions. Usually, he listens to oral argument during the day and writes a draft of the opinion in the case that evening. After praise that borders on hagiography, Domnarski notes only one departure from omnicompetence: Posner doesnÆt have time to watch much television and is innocent of mass culture. I havenÆt found all of this vast output to be of uniformly superior quality. But Domnarski concentrates only on good legal prose; if we accept his selectivity, he shows Posner to be a worthy disciple of Holmes, Hand and Friendly. At the very least, Posner has forged a clear, readable and appropriate style. Like all the good writers Domnarski lists, he has a sense of narrative. In his opinions, a story is always being told or retold; a principle is being worked out, or a process is being explicated. Though Domnarski provides mostly brief examples of literary devices used in PosnerÆs writing, he quotes one opinion in its seven-page entirety, and it reveals the literary excellence that Posner is capable of. Finally, Domnarski shows that Posner has been influential among other federal judges For the judges that Domnarski likes--Holmes, Frank, Hand, Easterbrook and Friendly, in addition to Posner--the process of deciding a case matters more than the decision itself. The key judicial value is dispassion, rather than serving an ideology or advancing a cause. The tools of expression are valued to the extent that they allow the judge to describe faithfully the process or reasoning by which the judgment was reached. In addition, Domnarski suggests, a judge cannot develop a strong individual voice if he tries to live in the law alone. He must have experience beyond the bench. If Vining is correct, writers who can convey this sense of judging to the general public could restore the Supreme CourtÆs rapidly eroding prestige. Why, then, havenÆt presidents appointed such people to the high court? PosnerÆs career suggests an answer: his opinions are accessible and clear. They constitute a paper trail that will make it impossible for him to be confirmed in the present political climate. Perhaps any appellate judge who writes well would be Borked today. A president who seeks good judicial writers will have to look for people without appellate court experience. But we can hope that the candidates will include a future Robert Jackson, William O. Douglas or Earl Warren. References Carter, Lief (1991). AN INTRODUCTION TO CONSTITUTIONAL INTERPRETA-TION: CASES IN LAW AND RELIGION. New York: Longman. Cover, Robert M. (1983) "Nomos And Narrative," 97 HARVARD LAW REVIEW 4. Vining, Joseph (1986). THE AUTHORITATIVE AND THE AUTHORITARIAN. Chicago: University of Chicago Press.

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University of Illinois Press
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5.96(w) x 8.89(h) x 0.56(d)

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