diff --git a/.claude/agents/legal-qa.md b/.claude/agents/legal-qa.md
index 2443328..2ead094 100644
--- a/.claude/agents/legal-qa.md
+++ b/.claude/agents/legal-qa.md
@@ -37,9 +37,10 @@ tools:
 - רק עובדות: תיאור נכס, היסטוריה תכנונית, החלטת ועדה
 
 ### 3. כיסוי טענות (claims_coverage)
-- כל טענה מבלוק ז נענתה בבלוק י
-- גם אם בניסוח שונה — העיקר שנדונה
-- **קריטי** — אם טענה לא נענתה, ה-QA נכשל
+- כל טענה מהותית מבלוק ז קיבלה מענה בבלוק י (ישיר, קיבוץ, או ציון שנבחנה)
+- טענות שסומנו [skip] ב-chair_directions — לא נספרות
+- טענות שסומנו [bundle] — נבדקות כקבוצה: אם הנושא טופל, כולן עוברות
+- **קריטי** — אם טענה מהותית ללא סימון לא נענתה, ה-QA נכשל
 
 ### 4. משקלות בטווח (weight_compliance)
 - בלוק ו (רקע): 15-40%
@@ -56,6 +57,15 @@ tools:
 - סעיפים 1, 2, 3... ללא איפוס בין בלוקים
 - ללא כפילויות במספור
 
+### 7. עמידה במתודולוגיה (methodology_compliance)
+ראה `docs/decision-methodology.md` לעקרונות המלאים. בדוק:
+- לכל סוגיה בבלוק י — ניתן לזהות מבנה סילוגיסטי: כלל + עובדות + מסקנה?
+- ממצאים עובדתיים מופרדים ממסקנות משפטיות (לא מעורבבים)?
+- טענה מרכזית של הצד המפסיד קיבלה מענה הוגן (Steel-Man — הוצגה בחוזקתה)?
+- כשנדרש איזון — יש ניתוח מפורש (אינטרסים, השלכות, הכרעה)?
+- אין "נוסחאות ריקות" (משפטים שמחיקתם לא משנה כלום)?
+- ציטוטים עטופים בסנדוויץ' (הקדמה → ציטוט → ניתוח)?
+
 ## חומרה
 
 | בדיקה | חומרה | משמעות |
@@ -66,6 +76,7 @@ tools:
 | משקלות | warning | מדווח, לא חוסם |
 | כפילות | warning | מדווח, לא חוסם |
 | מספור | warning | מדווח, לא חוסם |
+| מתודולוגיה | warning | מדווח, לא חוסם |
 
 ## תהליך עבודה
 
diff --git a/.claude/agents/legal-writer.md b/.claude/agents/legal-writer.md
index a89b27c..00b580d 100644
--- a/.claude/agents/legal-writer.md
+++ b/.claude/agents/legal-writer.md
@@ -34,9 +34,10 @@ tools:
 
 ## לפני שאתה מתחיל — קרא!
 
-1. מדריך סגנון: `skills/decision/SKILL.md`
-2. ארכיטקטורת 12 בלוקים: `docs/block-schema.md`
-3. לקחים מהחלטות קודמות: `docs/legal-decision-lessons.md`
+1. **מתודולוגיה אנליטית: `docs/decision-methodology.md`** — איך לחשוב על החלטה
+2. מדריך סגנון: `skills/decision/SKILL.md` — איך דפנה כותבת
+3. ארכיטקטורת 12 בלוקים: `docs/block-schema.md`
+4. לקחים מהחלטות קודמות: `docs/legal-decision-lessons.md`
 
 ## ארכיטקטורת 12 בלוקים
 
@@ -145,11 +146,35 @@ case_update(case_number, status="drafted")
 
 ## בלוק י — דיון (הבלוק החשוב ביותר)
 
-- מבנה CREAC: מסקנה בפתיחה → כלל → הסבר → יישום → מסקנה
-- ענה על כל טענה מבלוק ז
-- השתמש בציטוטים ארוכים (200-600 מילים) מפסיקה
-- אל תחזור על עובדות מבלוק ו
-- אל תשתמש בכותרות משנה (למעט נושאים נפרדים לחלוטין)
+**עקוב אחר `docs/decision-methodology.md` — שלבי הניתוח:**
+
+### שלב א: פסקת מפה
+פתח בפסקה שמודיעה מה ייבחן: "שלוש שאלות עומדות להכרעה: (1)...; (2)...; (3)..."
+
+### שלב ב: סוגיות סף (אם רלוונטיות)
+אם עולה שאלת סף — היא נדונה ראשונה. אם נדחית — פסקה אחת ועבור לגוף.
+
+### שלב ג: לכל סוגיה — מבנה סילוגיסטי (CREAC)
+1. **מסקנה** — פתח בתשובה
+2. **כלל** — ציטוט הוראת תכנית/חוק (התחל מלשון הטקסט, לא מפסיקה)
+3. **הרחבה** — תקדים רלוונטי אחד (טכניקת סנדוויץ': הקדמה→ציטוט→ניתוח)
+4. **יישום** — החל את הכלל על העובדות. הפרד ממצא עובדתי ממסקנה משפטית. השתמש בנתונים (מספרים, מידות, אחוזים).
+5. **Steel-Man** — הצג את הטענה הטובה ביותר של הצד המפסיד: "אמנם צודק העורר כי..., אולם..."
+6. **מסקנה חוזרת** — סגור
+
+### שלב ד: איזון (כשנדרש)
+אם אין כלל ברור — בנה איזון: זהה אינטרסים קונקרטיים → בחן השלכות לכל כיוון → שקול השלכות מערכתיות → הכרע.
+
+### שלב ה: טענות נותרות
+- טענות מרכזיות ללא סימון: מענה פרטני
+- טענות שסומנו [bundle] ב-chair_directions: קבץ ודון יחד
+- טענות שסומנו [skip] ב-chair_directions: "נבחנה ולא מצאנו בה ממש"
+- טענות חלשות: קיבוץ. "באשר לטענות הנוספות — לא מצאנו בהן ממש"
+
+### כללים נוספים
+- אל תחזור על עובדות מבלוק ו — הפנה: "כאמור בסעיף X לעיל"
+- כל מילה עובדת — אין "לאחר ששקלנו את כלל השיקולים"
+- כנות לגבי קושי — "הדבר אינו נקי מספקות, אולם..."
 
 ### חובה: שימוש בעמדות יו"ר מ-`get_chair_directions`
 
diff --git a/CLAUDE.md b/CLAUDE.md
index 1e28417..c07f4f8 100644
--- a/CLAUDE.md
+++ b/CLAUDE.md
@@ -42,6 +42,7 @@
 | [`docs/block-schema.md`](docs/block-schema.md) | הגדרת 12 בלוקים — content model, constraints, processing params | **לפני כל כתיבת החלטה** |
 | [`docs/migration-plan.md`](docs/migration-plan.md) | תוכנית מעבר vault → DB — טבלאות, עדיפויות, כמויות | לפני ייבוא נתונים |
 | [`docs/legal-decision-lessons.md`](docs/legal-decision-lessons.md) | לקחים מ-3 החלטות — מה עבד, מה השתנה, ביטויי מעבר חדשים | **לפני כל כתיבת החלטה** |
+| [`docs/decision-methodology.md`](docs/decision-methodology.md) | **מתודולוגיה אנליטית — איך לחשוב על החלטה מעין-שיפוטית** | **לפני כל כתיבת החלטה** |
 | [`docs/corpus-analysis.md`](docs/corpus-analysis.md) | ניתוח שיטתי של 24 החלטות — מפת תוכן, דפוסי דיון תכנוני, פערים | **לפני כל כתיבת החלטה** |
 | [`docs/memory.md`](docs/memory.md) | הקשר כללי — skills, פרויקטים שהושלמו, מבנה vault | להתמצאות כללית |
 | [`skills/decision/SKILL.md`](skills/decision/SKILL.md) | מדריך סגנון מלא של דפנה — טון, מבנה, ביטויים, מתודולוגיה | **לפני כל כתיבת החלטה** |
diff --git a/docs/corpus-analysis.md b/docs/corpus-analysis.md
index 4543228..1509604 100644
--- a/docs/corpus-analysis.md
+++ b/docs/corpus-analysis.md
@@ -173,14 +173,12 @@
 - טיפולוגיה/טופוגרפיה → רק זעיתר
 - תכנית אב כמסגרת → רק בית הכרם + תורן
 
-### 5.3 פער: הפרומפט הנוכחי לא מכיל "צ'קליסט תוכן"
-הפרומפט של block-yod (שורות 198-234 ב-block_writer.py) אומר:
-- ✅ CREAC methodology
-- ✅ ענה על כל טענה
-- ✅ צטט פסיקה
-- ❌ **אין**: "בתיק רישוי, כסה את הנושאים התכנוניים הרלוונטיים"
-- ❌ **אין**: צ'קליסט תוכן לפי סוג ערר
-- ❌ **אין**: "הקשר תכנוני רחב" כמרכיב חובה
+### 5.3 ~~פער: הפרומפט הנוכחי לא מכיל "צ'קליסט תוכן"~~ — **נסגר (2026-04-12)**
+נוספו:
+- ✅ צ'קליסטים תוכניים לפי סוג ערר (`lessons.py: CONTENT_CHECKLISTS`) — מוזרקים לפרומפט
+- ✅ מתודולוגיה אנליטית (`docs/decision-methodology.md`) — מלמדת איך לחשוב, לא רק מה לכסות
+- ✅ טיפול גמיש בטענות (bundle/skip דרך chair_directions)
+- ✅ בדיקת QA חדשה (methodology compliance)
 
 ### 5.4 פער: הבחנה לא מספיקה בין תת-סוגי רישוי
 תיקי רישוי שונים מאוד זה מזה:
diff --git a/docs/decision-methodology.md b/docs/decision-methodology.md
new file mode 100644
index 0000000..4813ef9
--- /dev/null
+++ b/docs/decision-methodology.md
@@ -0,0 +1,409 @@
+# מתודולוגיית כתיבת החלטות — מדריך אנליטי לוועדת ערר לתכנון ובניה
+
+מסמך זה מלמד כיצד לחשוב, לנתח ולבנות החלטה מנומקת. הוא אינו עוסק בסגנון הכתיבה של דפנה (ראה SKILL.md) ולא בנושאים שיש לכסות (ראה צ'קליסטים תוכניים). הוא עוסק בשיטה — כיצד להפוך חומרי מקור להנמקה משכנעת שתעמוד בביקורת שיפוטית.
+
+---
+
+## א. שלב מקדים — הבנת התיק לפני שנכתבת מילה
+
+### א.1 קרא הכל, סכם, ואז חשוב
+
+לפני שנכתב משפט אחד — קרא את כל חומרי המקור: כתב הערר, תגובת הוועדה המקומית, תגובת מבקשי ההיתר (אם יש), פרוטוקול הדיון, חוות דעת מומחים, ומסמכי תכנון רלוונטיים (תכנית, נספחים, החלטות ועדה מקומית).
+
+**מה לעשות:**
+- סמן את הטענות המרכזיות של כל צד. אל תסמוך על סיכום הצד — קרא את הנוסח המלא.
+- זהה מהן העובדות שאינן שנויות במחלוקת ומהן העובדות השנויות במחלוקת.
+- זהה את המסמכים הנורמטיביים הרלוונטיים (תכניות, חוקים, תקנות) וקרא אותם במלואם — לא רק את הסעיף הנטען. מילה בסעיף אחד מתפרשת לאור סעיפים אחרים באותו מסמך.
+
+### א.2 סווג את הערר
+
+סוג הערר קובע את מסגרת הניתוח:
+- **ערר רישוי (1xxx)**: שאלת שיקול דעת תכנוני; הוועדה מפעילה שיקול דעת עצמאי.
+- **ערר היטל השבחה (8xxx)**: שאלת שמאות ומשפט; ביקורת על שומה.
+- **ערר פיצויים — סעיף 197 (9xxx)**: דומה להיטל השבחה.
+
+הסיווג משפיע על תקן הביקורת, על עומק הדיון התכנוני, ועל טון ההחלטה.
+
+### א.3 נסח את השאלות לדיון — במילותיך
+
+הוועדה אינה כבולה לניסוח של עורכי הדין. אם העוררים העלו שמונה טענות אבל באמת יש שתי שאלות מרכזיות — נסח שתי שאלות. ניסוח הסוגיות הוא אבן הפינה של ההחלטה: הוא קובע אילו עובדות מהותיות ואילו כללים חלים.
+
+**מה לעשות:**
+- נסח כל שאלה כסילוגיזם מכווץ: הנחה משפטית, עובדות תמציתיות, שאלה חדה. לדוגמה: "תכנית X קובעת קו בניין של 3 מטרים. הבקשה כוללת בניה במרחק 1.5 מטרים מגבול המגרש. האם הבקשה תואמת את הוראות התכנית?"
+- ניסוח הסוגיות נכתב בגרסה סופית רק אחרי שהדיון מגובש — כדי לוודא שהשאלות תואמות את התשובות.
+
+**מבוסס על:** FJC Judicial Writing Manual §§A5-A7; Garner, Making Your Case §36; Posner — ניסוח סוגיות כאבן פינה.
+
+---
+
+## ב. ניתוח סף — מתי לבדוק, מתי לדלג
+
+### ב.1 שאלות סף תמיד קודמות
+
+אם עולה שאלת סמכות, מועד הגשה, או עמידה בתנאי מוקדם — היא נדונה ראשונה. הלוגיקה פשוטה: אם אין סמכות לדון, כל שאר הדיון מיותר.
+
+**מה לעשות:**
+- אם שאלת הסף נדחית (כלומר, הוועדה מוסמכת / הערר הוגש בזמן) — ציין זאת בפסקה אחת ועבור לגוף הערר.
+- אם שאלת הסף מתקבלת — ההחלטה מסתיימת בה. אין צורך לדון בגוף.
+- אל תדון בשאלת סף שלא הועלתה על ידי אף צד ושאין לה בסיס בחומר.
+
+### ב.2 ציון תקן הביקורת
+
+בפתיחת חלק הדיון, ציין את תקן הביקורת של הוועדה: "הוועדה מפעילה שיקול דעת תכנוני עצמאי" (ברישוי) או "הוועדה בוחנת את תקינות השומה המכרעת" (בהיטל השבחה). בלי ציון תקן — הקורא לא יודע באיזה סטנדרט נבחנה ההחלטה, והנימוק נשאר עמום.
+
+**מבוסס על:** FJC §B6; Posner — legalism works when the rule is clear.
+
+---
+
+## ג. סדר הסוגיות — מה קודם ולמה
+
+### ג.1 עקרון הסדר
+
+1. **שאלות סף** — תמיד ראשונות.
+2. **הסוגיה המכריעה** — מיד אחריהן. הסוגיה שמכריעה את הערר באה לפני סוגיות משניות.
+3. **סוגיות נוספות** — לפי חוזק ההנמקה. פתח בנימוק החזק ביותר. רושם ראשוני אי אפשר לבטל, ותשומת הלב של הקורא בשיאה בהתחלה.
+4. **סוגיות שנויות אך לא נחוצות** — בסוף, או בכלל לא.
+
+### ג.2 מתי לא לדון בטענה
+
+ההחלטה צריכה לדון רק בסוגיות שיש לפתור כדי להכריע. אם העורר העלה שמונה טענות אבל שתיים מכריעות — הדיון מתמקד בשתיים. את השאר ניתן לטפל כך:
+- טענה שהועלתה ברצינות אך אינה נחוצה: "טענה זו נבחנה על ידי הוועדה. נוכח מסקנתנו לעיל, אין צורך להכריע בה."
+- טענות חלשות או חוזרות: ניתן לקבץ. "באשר לטענות הנוספות שהעלו העוררים — לא מצאנו בהן ממש."
+- אל תתעלם לחלוטין מטענה מרכזית. הצד המפסיד חייב לראות שהוועדה שקלה את יסודות עמדתו.
+
+### ג.3 פסקת מפה
+
+בפתיחת הדיון, ספק מפת דרכים: "שלוש שאלות עומדות להכרעה: (1) האם הבקשה תואמת את הוראות התכנית לעניין קו הבניין; (2) האם ההקלה המבוקשת עומדת בתנאי סעיף 147; (3) מהו הסעד המתאים." הקורא יודע מראש מה לצפות, וההנמקה נתפסת כמאורגנת.
+
+**מבוסס על:** FJC §§B2-B5; Garner, MYC §§7, 12; LWPE §27; Posner — narrow holdings, focus on what matters.
+
+---
+
+## ד. בניית הניתוח — הלב של ההחלטה
+
+### ד.1 מבנה סילוגיסטי לכל סוגיה
+
+כל סוגיה נבנית כסילוגיזם:
+
+1. **הנחה עליונה (הכלל)** — סעיף בתכנית, הוראת חוק, הלכה פסוקה, או עיקרון תכנוני.
+2. **הנחה תחתונה (העובדות)** — העובדות הספציפיות של הערר שנבחנות לאור הכלל.
+3. **מסקנה** — התוצאה שנובעת בהכרח מהחלת הכלל על העובדות.
+
+זהו השלד. כל הנמקה שאינה ניתנת לפירוק למבנה זה — חסרה חוליה. אם לא ניתן לזהות את הכלל — ההנמקה אינה מספקת. אם לא ניתן לזהות כיצד העובדות מקיימות את הכלל — ההנמקה קריפטית.
+
+### ד.2 התחל מלשון הטקסט
+
+כשהמקרה נשלט על ידי הוראת תכנית או סעיף חוק — פתח תמיד בציטוט ההוראה. לא בפסיקה, לא בעקרון כללי. המילים של הטקסט הן נקודת המוצא.
+
+**מה לעשות:**
+- הבא את לשון ההוראה הרלוונטית (ציטוט ישיר, קצר ככל האפשר).
+- פרש מילים במשמעותן הרגילה.
+- בדוק עקביות עם הוראות אחרות באותה תכנית.
+- תן תוקף לכל מילה — מילה "מיותרת" בטקסט נורמטיבי אינה מיותרת.
+- אם יש עמימות — השתמש בכלי פרשנות: הכלל הכללי מצטמצם לאור הפרט; מילה מתפרשת לאור הקשרה; הכללת דבר אחד מרמזת על הדרת אחרים.
+
+### ד.3 שלושה מקורות להנחה העליונה
+
+בעררי תכנון, הכלל נשאב משלושה מקורות:
+- **טקסט**: הוראות התכנית, חוק התכנון והבניה, תקנות.
+- **תקדים**: פסיקת בתי משפט, החלטות ועדת ערר ארצית, החלטות ועדות ערר מחוזיות.
+- **מדיניות**: שיקולים תכנוניים — צפיפות, אופי סביבה, אינטרס ציבורי, השפעות כלכליות.
+
+בחר את המקור החזק ביותר. אם יש הוראת תכנית ברורה — אין צורך בפסיקה כדי לתמוך בה. פסיקה נדרשת כשהטקסט עמום או כשצריך לקבוע כיצד ליישם עיקרון כללי.
+
+### ד.4 ההנחה התחתונה היא המפתח
+
+ברוב העררים, הכלל המשפטי אינו שנוי במחלוקת. השאלה היא כיצד העובדות משתלבות בכלל. זהו לב ההחלטה. ההנמקה חייבת להראות בפירוט — לא בהכרזה — כיצד העובדות הספציפיות מקיימות או אינן מקיימות את תנאי הכלל.
+
+**מה לעשות:**
+- השתמש בנתונים: מספרים, מידות, אחוזים, תאריכים (כשרלוונטיים). "הבקשה חורגת ב-1.5 מטרים מקו הבניין" — לא "הבקשה חורגת באופן משמעותי."
+- הפרד בין ממצא עובדתי למסקנה משפטית. "הבניה במרחק 1.5 מטרים מגבול המגרש" — ממצא עובדתי. "חריגה זו עולה כדי סטייה ניכרת" — מסקנה משפטית. אל תערבב.
+- כל מעבר מכלל לעובדה למסקנה צריך להיות מפורש. לא לכתוב "העובדות מלמדות כי הערר אינו מוצדק" בלי לפרט למה.
+
+### ד.5 מבנה CREAC בפועל
+
+לכל סוגיה, השתמש במבנה הבא:
+
+1. **מסקנה** (Conclusion) — פתח בתשובה לשאלה. "הבקשה אינה תואמת את הוראות התכנית לעניין קו הבניין."
+2. **כלל** (Rule) — הבא את הכלל. ציטוט הוראת התכנית או ההלכה.
+3. **הרחבה** (Explanation) — אם הכלל דורש הבהרה, הבא תקדים רלוונטי אחד שמסביר כיצד הכלל יושם במקרה דומה.
+4. **יישום** (Application) — החל את הכלל על עובדות המקרה. כאן נמצא לב ההנמקה.
+5. **מסקנה חוזרת** (Conclusion) — סגור בתמצית. "לפיכך, הבקשה אינה עולה בקנה אחד עם הוראות התכנית."
+
+הפתיחה במסקנה חיונית: הקורא יודע לאן הדיון מוביל, וכל עובדה שנקראת אחר כך מובנת בהקשרה. עובדות ללא מסגרת — נתפסות כאקראיות וחסרות משמעות.
+
+**מבוסס על:** Garner, MYC §§22-27; FJC §§B1, B8; Posner — facts drive decisions; data over words; distinguish findings from conclusions.
+
+---
+
+## ה. איזון ומידתיות — מתי ואיך
+
+### ה.1 מתי נדרש איזון
+
+איזון נדרש כשהדין לא נותן תשובה חד-משמעית. כשהכלל ברור והעובדות מתאימות לו — אין צורך באיזון. אל תאזן כשאפשר להכריע לפי כלל. איזון הוא כלי לשעה שהכללים אוזלים, לא תחליף לניתוח נורמטיבי.
+
+### ה.2 מבנה האיזון
+
+כשאיזון נדרש, בנה אותו כך:
+
+1. **זהה את האינטרסים** — מהם האינטרסים המתחרים. לא "אינטרס הציבור" מול "אינטרס העורר" באופן מעורפל, אלא אינטרסים קונקרטיים: "זכות הקניין של העורר לבנות על מגרשו" מול "שמירה על אופי מגורים צמודי קרקע בשכונה."
+2. **בחן השלכות לכל כיוון** — מה קורה אם מקבלים? מה קורה אם דוחים? לא "מהו האינטרס החשוב יותר" אלא "מהן ההשלכות של כל תוצאה על כל אינטרס."
+3. **שקול השלכות מערכתיות** — לא רק תוצאה לתיק זה, אלא גם האות שנשלח למערכת התכנון. קבלת הערר תיצור תקדים? תפתח פתח לבקשות דומות?
+4. **הגע למסקנה** — ציין מפורשות מה מכריע את הכף ולמה.
+
+### ה.3 מידתיות כמבחן
+
+כשהוועדה מטילה מגבלה או תנאי — בדוק: (1) האם המגבלה משרתת תכלית ראויה; (2) האם יש אמצעי פוגע פחות; (3) האם הפגיעה מידתית ביחס לתועלת. שלושת השלבים צריכים להיות מפורשים בטקסט.
+
+**מבוסס על:** Posner — balance as methodology; systemic vs. case-specific consequences; pragmatist approach within legal norms.
+
+---
+
+## ו. טיפול בטענות — כללים מעשיים
+
+### ו.1 אל תהפוך את הדיון לוויכוח
+
+ההחלטה מנתחת שאלה — לא מתווכחת עם עורכי דין. המבנה הנכון הוא: שאלה → כלל → עובדות → מסקנה. לא: "העורר טוען X — אין לקבל טענה זו — שכן Y."
+
+הדיון לא מתנהל כ"תשובה לכתב הערר" אלא כניתוח עצמאי שבוחן את השאלות שהתעוררו. הוועדה מגיעה למסקנותיה מכוח הנימוק — לא מכוח דחיית טענות.
+
+### ו.2 Steel-manning — הצג את הטענה הטובה ביותר של הצד המפסיד
+
+לפני שדוחים טענה — הצג אותה בגרסה החזקה ביותר שלה. לא קריקטורה של הטענה, אלא הטענה כפי שעורך דין מוכשר היה מנסח אותה. אז הסבר למה היא נדחית.
+
+**למה זה חשוב:** טענת קש קלה להפריך, אבל הקורא (ובמיוחד בית המשפט בביקורת שיפוטית) יזהה שלא התמודדת עם הטענה האמיתית. הצגה הוגנת של הטענה ודחייתה — משכנעת. הצגה מעוותת — מחשידה.
+
+**מה לעשות:**
+- כשנדרשת התמודדות עם טענת העורר, כתוב: "אמנם צודק העורר כי [נקודה שפועלת לטובתו], אולם [הנימוק לדחייה]."
+- אם יש נקודה שאי אפשר להגן עליה — הכר בה בגלוי. "נכון כי המבנה הסמוך חורג מקו הבניין. אולם עובדה זו אינה מקנה זכות לחריגה נוספת, שכן..."
+- טענה חלשה שאין בה ממש — מספיק משפט אחד. אל תפזר זמן על טענות שאינן ראויות לדיון.
+
+### ו.3 מיקום ההתמודדות עם טענות נגדיות
+
+באמצע הדיון — לא בהתחלה ולא בסוף. המבנה המומלץ לכל סוגיה:
+1. הנחה משפטית (הכלל)
+2. יישום על העובדות
+3. מסקנה ראשונית
+4. **טענה נגדית + תשובה**
+5. **טענה נגדית נוספת + תשובה** (אם יש)
+6. נקודה תומכת נוספת
+7. משפט סיכום
+
+פתיחה בטענות הצד השני מציבה את ההחלטה בעמדת הגנה. סיום בהן משאיר את המוקד על הצד המפסיד. האמצע הוא המקום הנכון.
+
+### ו.4 קיבוץ טענות
+
+כשיש טענות רבות שמכוונות לאותה נקודה — קבץ אותן. "העוררים העלו מספר טענות הנוגעות לאופן חישוב השטחים. לאחר בחינתן, לא מצאנו בהן ממש, ונפרט." זה עדיף על טיפול נקודתי בכל טענה, שמייצר תחושה של רשימת מכולת ולא של ניתוח.
+
+**מבוסס על:** FJC §§B3-B4, E1-E2; Garner, MYC §§4, 8, 10-12; LWPE §30; Posner — honest engagement with counterarguments, avoid empty formulas.
+
+---
+
+## ז. ציטוטים ואזכורי פסיקה — פחות זה יותר
+
+### ז.1 טכניקת הסנדוויץ'
+
+כל ציטוט חייב להיות עטוף: משפט הקדמה → ציטוט → ניתוח.
+
+**הקדמה גרועה:** "בית המשפט קבע כדלקמן:" (ריקה מתוכן).
+**הקדמה טובה:** "בית המשפט קבע כי אין לקבל בקשות שהוגשו באיחור ללא טעם מיוחד:" (מודיעה על התוכן).
+
+אל תניח שהקורא יקרא ציטוט ארוך. סכם את עיקרו לפניו, ולאחריו הוסף ניתוח שמסביר כיצד הציטוט רלוונטי למקרה הנדון.
+
+### ז.2 כמה לצטט
+
+- **הוראת תכנית/חוק**: ציטוט ישיר — המילים המדויקות חשובות כי ההנמקה נבנית עליהן.
+- **הלכה פסוקה**: פרפרזה עדיפה. צטט ישירות רק כשהניסוח המקורי עושה נקודה שלא ניתן לבטא בפרפרזה. 1-2 משפטים לכל היותר.
+- **כלל מוסדר**: מקור אחד מספיק. לא מחרוזות של "ראו: X; Y; Z; A; B." מחרוזת אזכורים אינה מוסיפה כוח — היא מעידה על חוסר ביטחון.
+- **כלל חדש או שנוי במחלוקת**: כאן כן יש מקום לסקירת ההתפתחות בפסיקה, אבל ממוקדת ותכליתית.
+
+### ז.3 היררכיית תקדימים
+
+בעררי תכנון, סדר המשקל הוא:
+1. פסיקת בית המשפט העליון
+2. פסיקת בית משפט לעניינים מנהליים
+3. החלטות ועדת ערר ארצית
+4. החלטות ועדות ערר מחוזיות אחרות
+5. ספרות משפטית/תכנונית
+
+העדף תקדים עדכני. כשמאזכרים תקדים — ציין בדיוק מה נפסק ואם מדובר בהלכה מחייבת או אמרת אגב. אם התקדים שונה מהמקרה הנדון — אמור זאת במפורש.
+
+### ז.4 הפניות ביבליוגרפיות
+
+שלב את שם בית המשפט ושם התיק בגוף הטקסט ("כפי שקבע בית המשפט העליון בפרשת אליאב") והעבר את ההפניה המספרית להערת שוליים. הפניות בגוף הטקסט שוברות את מהלך המחשבה.
+
+**מבוסס על:** FJC §§D1-D5; Garner, MYC §§26-27, 48, 50; LWPE §§28-29.
+
+---
+
+## ח. כתיבת חלק העובדות — ניטרלי, ממוקד, מדויק
+
+### ח.1 רק עובדות הנחוצות להסברת ההחלטה
+
+כל עובדה שמופיעה — הקורא יניח שהיא רלוונטית. אם היא לא רלוונטית — היא מסיחה דעת. אם היא רלוונטית ולא מופיעה — ההנמקה חסרה בסיס.
+
+**מה לעשות:**
+- כלול רק עובדות שמשמשות בדיון. מבחן: לכל עובדה בחלק הרקע, שאל — "האם אני מפנה לעובדה זו בחלק הדיון?" אם לא — שקול להסיר.
+- תאריכים מדויקים רק כשהם מהותיים (מועד הגשה, תוקף תכנית, שאלת שיהוי). אחרת — "כחודש לאחר מכן", "בתחילת 2023."
+- פרטים "מעניינים" שאינם רלוונטיים — השמט. היסטוריה של השכונה, נוף, תיאורים ציוריים — רק אם רלוונטיים להחלטה.
+
+### ח.2 ניטרליות מוחלטת
+
+חלק העובדות אינו טוען. אין בו מילות שיפוט ("למרבה הפליאה", "באופן מפתיע"). אין בו ציטוטים מצדדים (ציטוטים שייכים לחלק הטענות). הוא מציג עובדות — לא מפרש אותן.
+
+אבל ניטרליות אינה הסתרה. אם יש עובדה שתומכת בצד המפסיד — היא חייבת להופיע. רקע ניטרלי כולל את כל העובדות המהותיות, לא רק את אלה שתומכות בתוצאה.
+
+### ח.3 מבנה: סדר כרונולוגי, עובדות כלליות ואז ספציפיות
+
+עקוב אחר ציר הזמן: הנכס, הבקשה, ההחלטה, הערר. אל תפתח בהחלטת הוועדה המקומית ואז תחזור לתיאור הנכס.
+
+בתיקים רב-סוגייתיים — הגבל את חלק הרקע לעובדות כלליות ושלב עובדות ספציפיות בדיון בכל סוגיה. זה מונע כפילות ושומר על רלוונטיות.
+
+### ח.4 דיוק מוחלט
+
+אל תסמוך על עובדות כפי שמוצגות בכתבי הטענות. בדוק מול חומרי המקור (פרוטוקולים, תכניות, תצהירים). שגיאה עובדתית היא הדבר המזיק ביותר שיכול לקרות להחלטה — היא מערערת את סמכותה ופוגעת באמינותה.
+
+**מבוסס על:** FJC §§C1-C6; Garner, LWPE §§3, 17, 23; MYC §36; Posner — data over words, facts drive decisions.
+
+---
+
+## ט. כתיבת חלק ההכרעה — ברור ואופרטיבי
+
+### ט.1 התוצאה חייבת להיות חד-משמעית
+
+"הערר נדחה." "הערר מתקבל." "הערר מתקבל בחלקו." לא "לאור כל האמור לעיל, הערר נדחה" — אלא סיכום קצר (2-3 משפטים) שמסביר את עיקר ההנמקה, ואז התוצאה.
+
+### ט.2 הוראות אופרטיביות מפורטות
+
+כשהערר מוחזר לוועדה המקומית — אל תדבר בחידות. "הערר מוחזר לוועדה המקומית לצורך דיון מחדש" — אינו מספיק. פרט: מה צריכה הוועדה המקומית לבחון? לפי איזו תכנית? האם לתת שימוע? מהם השיקולים שיש לשקול?
+
+כשנקבעים תנאים — פרט כל תנאי באופן שהגוף המבצע יוכל ליישם בלי לפרש את ההחלטה.
+
+### ט.3 שמירה על סמכות הערכאה הנמוכה
+
+גם כשנמצא פגם בשיקול הדעת — ההחלטה מחזירה את העניין לוועדה המקומית כדי שתפעיל שיקול דעת מחדש. אל תכפה תוצאה ספציפית אלא אם הדין מחייב תוצאה אחת בלבד.
+
+### ט.4 התייחסות לוועדה המקומית — ללא ביקורת מיותרת
+
+כשהערר מתקבל — הוועדה המקומית טעתה. אבל ההנמקה מתמקדת ב"מה צריך להיות" — לא ב"כמה טעתה הוועדה המקומית." אין "באופן מפתיע", "למרבה הפליאה", "שגתה שגיאה חמורה". נמק את הפגם — אל תבקר את השופט.
+
+**מבוסס על:** FJC §§E4, F1-F3; Garner, MYC §21; Posner — narrow holdings, constrained pragmatism.
+
+---
+
+## י. טכניקות כתיבה — ברמת הפסקה והמשפט
+
+### י.1 משפט נושא בפתיחת כל פסקה
+
+כל פסקה נפתחת במשפט שמודיע על הנקודה המרכזית שלה. לא באזכור פסק דין, לא בהפניה, לא בתיאור רקע. הנקודה — ואז התמיכה.
+
+**לא:** "בעע"מ 1234/05 נקבע כי..." → הקורא לא יודע למה הוא קורא על פסק הדין הזה.
+**כן:** "ועדת ערר אינה מוסמכת להתערב בשיקול דעת מקצועי של מהנדס העיר. כך נפסק ב..." → הקורא יודע את הנקודה, ופסק הדין תומך בה.
+
+### י.2 גשרים בין פסקאות
+
+כל פסקה חייבה להיות מחוברת לקודמתה. שלושה כלים:
+- **מילות קישור מפורשות**: לפיכך, אולם, בנוסף, מנגד, אכן, עם זאת.
+- **מילות הצבעה**: "בעניין זה", "נוכח קביעה זו", "מעבר לכך".
+- **הדי הפסקה הקודמת**: חזרה על מונח מפתח מהפסקה הקודמת בפתיחת הפסקה הנוכחית.
+
+### י.3 פסקה אחת — נקודה אחת
+
+אם פסקה עוסקת גם בכלל המשפטי, גם ביישומו, וגם בטענה נגדית — חלק אותה. הפסקה היא יחידת החשיבה הבסיסית, ויחידה שמכילה שני רעיונות שונים — מבלבלת.
+
+### י.4 כותרות אינפורמטיביות (כשמתאים)
+
+כשיש כותרות משנה בדיון (בתיקים מורכבים עם סוגיות נפרדות) — כתוב כותרת שמודיעה על המסקנה, לא רק על הנושא.
+- **לא:** "סוגיית קו הבניין"
+- **כן:** "הבנייה בקו אפס אינה עולה בקנה אחד עם הוראות התכנית"
+
+### י.5 בניין פעיל
+
+"הוועדה המקומית דחתה את הבקשה" — לא "הבקשה נדחתה על ידי הוועדה המקומית." בניין פעיל קצר יותר, ברור יותר, ומזהה את הפועל. חריג: כשהפעולה חשובה יותר מהפועל ("ההיתר בוטל" — כשלא חשוב מי ביטל).
+
+### י.6 דיוק ומשמעת לשונית
+
+- **עקביות מינוחית**: אם כתבת "היתר בנייה" — אל תעבור ל"רישיון בנייה." עקביות חשובה מגיוון.
+- **לא להגזים**: "הפסיקה חד-משמעית" — רק אם היא באמת חד-משמעית. "אין כל ספק" — רק אם באמת אין. הגזמה מערערת אמינות.
+- **לא לנפח**: "במידה ו-" → "אם". "לאור העובדה ש-" → "מכיוון ש-". "על מנת ש-" → "כדי ש-". כל מילה שאינה עוזרת — מפריעה.
+- **לא לכפול**: "לבטל ולהפקיע" → "לבטל". אם מילה אחת מספיקה — מילה שנייה מחייבת את הקורא לחפש הבדל שאינו קיים.
+- **סיום חזק**: אל תסיים משפט בתאריך או בהפניה אלא אם הם חשובים. המילה האחרונה במשפט היא זו שנשארת.
+
+### י.7 כנות לגבי קושי
+
+כשהמקרה קשה — אמור זאת. "הדבר אינו נקי מספקות, אולם..." עדיף על פני הצגת מקרה קשה כקל. כנות לגבי הקושי מחזקת את אמינות ההחלטה — הקורא מבין שהוועדה התלבטה ובכל זאת הגיעה למסקנה מנומקת.
+
+אבל — ההחלטה משקפת רק את התוצאה הסופית. לא לתעד כל צעד ומעד בדרך, לא להציג שני מסלולי חשיבה חלופיים. אם ההחלטה קשה — ניתן לומר זאת, ואז להציג את ההנמקה הסופית בביטחון.
+
+### י.8 הימנעות מנוסחאות ריקות
+
+כל משפט חייב לעשות עבודה. "לאחר ששקלנו את כלל השיקולים הרלוונטיים" — ריק. מה שקלתם? "בעניין זה יש לומר" — ריק. אמור מה יש לומר בלי ההקדמה. "הננו סבורים" — ריק. כתוב את מה שאתה סבור, בלי להכריז שאתה סבור.
+
+מבחן: אם מוחקים את המשפט וההחלטה לא מאבדת מידע — המשפט מיותר.
+
+**מבוסס על:** FJC §§G1-G6; Garner, LWPE §§5-17, 24-26; MYC §§6, 35, 39, 43; Posner — avoid empty formulas, candor about uncertainty.
+
+---
+
+## יא. אנלוגיה ותקדים — מתי ואיך
+
+### יא.1 אנלוגיה דורשת הסבר מדיניות
+
+"מקרה זה דומה לפרשת X" — ריק, אלא אם מסביר למה הדמיון רלוונטי. מה המדיניות שעמדה בבסיס ההחלטה ב-X? האם אותה מדיניות חלה כאן?
+
+**מה לעשות:**
+- כשמפנים לתקדים, ציין: (1) מה נפסק שם; (2) מה הנסיבות הדומות; (3) למה הרציונל חל גם כאן.
+- כשמבחינים מתקדים: (1) מה שונה; (2) למה ההבדל משמעותי.
+
+### יא.2 החזקות חלופיות — "אף בהנחה"
+
+הימנע מ"אף בהנחה שצודקים העוררים בטענתם..." ו"גם אם היינו מקבלים..." — הם מחלישים את ההחזקה העיקרית. אם יש שני נימוקים — דון בנימוק המשני קודם ואז הצג את הנימוק העיקרי. כך שני הנימוקים עומדים בזכות עצמם, בלי שאחד מערער את השני.
+
+**מבוסס על:** FJC §B7; Garner, MYC §§26, 48; Posner — analogy requires policy analysis, narrow holdings.
+
+---
+
+## יב. עריכה — רשימת ביקורת
+
+לפני סיום ההחלטה, בצע את הבדיקות הבאות:
+
+### ביקורת מבנית
+- [ ] המבוא מכסה את כל הסוגיות שנדונו בהחלטה
+- [ ] כל עובדה בחלק הרקע מופיעה בדיון (אין עובדות "יתומות")
+- [ ] כל קביעה בדיון מבוססת על עובדה מחלק הרקע (אין עובדות חדשות בדיון)
+- [ ] סדר הסוגיות לוגי: סף → מכריע → משני
+- [ ] המסקנה נובעת מהדיון — לא מכריזה תוצאה שלא נומקה
+
+### ביקורת אנליטית
+- [ ] לכל סוגיה — ניתן לזהות כלל + עובדות + מסקנה (מבנה סילוגיסטי)
+- [ ] הממצאים העובדתיים מופרדים מהמסקנות המשפטיות
+- [ ] הטענה המרכזית של הצד המפסיד קיבלה מענה מנומק
+- [ ] אין "נוסחאות ריקות" — כל משפט עושה עבודה
+- [ ] אין הגזמה — "חד-משמעי", "ברי", "ללא ספק" רק כשמוצדקים
+
+### ביקורת עקביות
+- [ ] התוצאה בבלוק יא/יב תואמת את הסיכום בבלוק א/ב
+- [ ] מינוח עקבי לאורך כל ההחלטה (אותם מונחים לאותם מושגים)
+- [ ] הציטוטים מדויקים ובהקשרם
+- [ ] אזכורי פסיקה נכונים (לא מייחסים לפסק דין יותר ממה שאמר)
+
+**מבוסס על:** FJC §§G8-G10; Garner, MYC §6; Posner — precision, intellectual honesty.
+
+---
+
+## סיכום — עשרת העקרונות המנחים
+
+1. **סילוגיזם תמיד**: כלל → עובדות → מסקנה. אין קיצורי דרך.
+2. **התחל מהטקסט**: הוראת תכנית או חוק — לפני פסיקה, לפני עקרונות כלליים.
+3. **עובדות מכריעות**: רוב המקרים מוכרעים על ידי העובדות, לא על ידי הדין.
+4. **נתונים, לא תיאורים**: מספרים ומידות — לא "משמעותי", "ניכר", "מהותי."
+5. **Steel-man**: הצג את הטענה הטובה ביותר של הצד המפסיד — ואז הסבר למה היא נדחית.
+6. **כנות**: מקרה קשה — אמור שהוא קשה. אל תעמיד פנים שקל.
+7. **כל מילה עובדת**: נוסחה ריקה, מילה מנופחת, כפילות — מחק.
+8. **מסקנה קודם**: הקורא יודע לאן הדיון מוביל — העובדות מובנות בהקשרן.
+9. **מקור אחד מספיק**: לנקודה מוסדרת — אזכור אחד. מחרוזות אזכורים = חולשה.
+10. **הוראות ברורות**: הצד שמקבל את ההחלטה חייב לדעת בדיוק מה נדרש ממנו.
+
+---
+
+*מסמך זה מבוסס על שלושה מקורות מרכזיים: (1) Federal Judicial Center, Judicial Writing Manual (1991, 2020); (2) Garner, Legal Writing in Plain English (2001) ו-Scalia & Garner, Making Your Case (2008); (3) Posner, How Judges Think (2008). העקרונות סונתזו והותאמו להקשר של ועדת ערר לתכנון ובניה בישראל.*
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+# עקרונות כתיבת החלטות מעין-שיפוטיות — מיצוי מתוך Judicial Writing Manual (FJC)
+
+מקורות:
+- **מהדורה ראשונה (1991)** — Judicial Writing Manual, Federal Judicial Center
+- **מהדורה שנייה (2020)** — Judicial Writing Manual: A Pocket Guide for Judges, Second Edition
+
+---
+
+## A. מבנה כולל של ההחלטה — מה קודם, מה אחרון, רצף
+
+### A1. חמישה מרכיבים חובה בהחלטה מלאה
+
+**העיקרון:** החלטה מלאה חייבת לכלול חמישה אלמנטים בסדר הבא: (1) מבוא — טבע התיק ומצבו הפרוצדורלי; (2) ניסוח הסוגיות; (3) תיאור העובדות המהותיות; (4) דיון בעקרונות המשפטיים וביישומם; (5) התוצאה האופרטיבית וההוראות.
+
+> "A full-dress opinion should contain five elements: (1) an introductory statement of the nature and procedural posture of the case; (2) a statement of the issues to be decided; (3) a description of the material facts; (4) a discussion of the governing legal principles and the resolution of the issues; and (5) the disposition and necessary instructions."
+> — 1991, עמ' 13; 2020, עמ' 13
+
+**יישום לוועדת ערר:** מתאים ישירות לארכיטקטורת 12 הבלוקים — בלוקים א-ג (מבוא/פרוצדורה), ד-ה (סוגיות), ו (עובדות), ז-י (דיון), יא-יב (תוצאה).
+
+---
+
+### A2. כותרות וכותרות-משנה — חובה
+
+**העיקרון:** יש להשתמש בכותרות, כותרות-משנה, ומספור כדי לחשוף את ארגון ההחלטה לקורא. זה חיוני במיוחד כשההחלטה ארוכה והנושא מורכב.
+
+> "The use of headings and subheadings, Roman numerals, or other means of disclosing the organization to the reader is always helpful, particularly where the opinion is long and the subject matter complex. These not only provide road signs for the reader, they also help to organize the writer's thoughts and test the logic of the opinion."
+> — 1991, עמ' 13; 2020, עמ' 13
+
+**יישום לוועדת ערר:** כל בלוק מקבל כותרת ברורה. בתוך בלוק הדיון (י) — כותרות-משנה לכל סוגיה. מאפשר לצדדים ולבית המשפט לנווט בהחלטה.
+
+---
+
+### A3. מבוא — מכוון את הקורא
+
+**העיקרון:** מטרת המבוא היא לכוון (orient) את הקורא. הוא צריך לציין בקצרה: מהו התיק, מה הנושא המשפטי, ומה התוצאה. בנוסף, יש לזהות את הצדדים (רצוי בשם ולא בתואר פרוצדורלי), לתאר את המצב הפרוצדורלי, ולציין את הסוגיות.
+
+> "The purpose of the introduction is to orient the reader to the case. It should state briefly what the case is about, the legal subject matter, and the result."
+> — 1991, עמ' 13; 2020, עמ' 13
+
+> "The parties should be identified, if not in the introduction then early in the opinion, preferably by name, and that identification should be used consistently throughout. The use of legal descriptions, such as 'appellant' and 'appellee,' tends to confuse, especially in multi-party cases."
+> — 1991, עמ' 13; 2020, עמ' 13-14
+
+**יישום לוועדת ערר:** בבלוק א — זיהוי הצדדים בשם (לא "העורר" ו"המשיבה" בלבד). ציון סוג הערר, נושאו, ותוצאתו כבר בפתיחה. שימוש עקבי באותו זיהוי לאורך כל ההחלטה.
+
+---
+
+### A4. סיכום ההחזקה בתחילת ההחלטה
+
+**העיקרון:** סיכום התוצאה כבר בפתיחה חוסך זמן לקוראים, ומאלץ את הכותב לנסח את ההחזקה בדיוק ובתמציתיות. הגרסה הסופית של המבוא כדאי שתיכתב אחרי השלמת ההחלטה כולה.
+
+> "Summarizing the holding at the outset can save time for readers, particularly researchers who will be able to determine immediately whether to read the rest of the opinion. Providing a terse summary of the holding at the start of the opinion also helps the writer to state it precisely and succinctly. The final version of the introduction may be best written after the opinion is completed."
+> — 1991, עמ' 13; 2020, עמ' 14
+
+**יישום לוועדת ערר:** בבלוק א לכתוב: "הערר נדחה/מתקבל" + משפט אחד על הנימוק המרכזי. המבוא נכתב אחרון (אחרי שהדיון מגובש).
+
+---
+
+### A5. ניסוח הסוגיות — אבן הפינה
+
+**העיקרון:** ניסוח הסוגיות הוא אבן הפינה של ההחלטה. הוא קובע אילו עובדות הן מהותיות ואילו עקרונות משפטיים חלים. השופט לא כבול לניסוח של עורכי הדין — עליו לנסח את הסוגיות כפי שהוא רואה אותן.
+
+> "The statement of issues is the cornerstone of the opinion; how the issues are formulated determines which facts are material and what legal principles govern. Judges should not be prisoners of the attorneys' analysis; they should frame the issues as they see them."
+> — 1991, עמ' 14; 2020, עמ' 14
+
+**יישום לוועדת ערר:** בלוקים ד-ה — הוועדה מנסחת את השאלות לדיון במילותיה, לא בניסוח העוררים. אם העוררים הגדירו שלוש שאלות אבל באמת יש שאלה מרכזית אחת — הוועדה מנסחת שאלה אחת.
+
+---
+
+### A6. סוגיות לפני/אחרי עובדות — גמישות
+
+**העיקרון:** ניסוח הסוגיות יכול לבוא לפני או אחרי תיאור העובדות. הצבת הסוגיות קודם הופכת את תיאור העובדות למשמעותי יותר ומסייעת להתמקד בעובדות המהותיות. אך לפעמים לא ניתן לנסח את הסוגיה ללא שהקורא מכיר את העובדות.
+
+> "Stating the issues first will make the fact statement more meaningful to the reader and help focus on material facts."
+> — 1991, עמ' 14; 2020, עמ' 14
+
+**יישום לוועדת ערר:** בארכיטקטורת 12 הבלוקים — בלוק ה (סוגיות) בא לפני בלוק ו (רקע עובדתי). זה מתאים לעיקרון.
+
+---
+
+### A7. ניסוח סוגיות ≠ פירוט טענות הצדדים
+
+**העיקרון:** יש להפריד בין ניסוח הסוגיות לבין פירוט טענות הצדדים. פירוטים ארוכים של טענות אינם תחליף לניתוח ולנימוק, ויש להימנע מהם.
+
+> "The statement of issues should not be confused with recitals of the parties' contentions. Lengthy statements of the parties' contentions, occasionally found in opinions, are not a substitute for analysis and reasoning and should be avoided."
+> — 1991, עמ' 14-15; 2020, עמ' 14
+
+**יישום לוועדת ערר:** בלוקים ז-ח (טענות הצדדים) הם נפרדים מבלוק ה (סוגיות). בלוק ה קצר וממוקד; בלוקים ז-ח מפרטים את הטענות; בלוק י מנתח — ולא חוזר על הטענות.
+
+---
+
+### A8. ההחלטה משקפת רק את התוצאה הסופית
+
+**העיקרון:** הכתיבה צריכה לשקף רק את ההחלטה הסופית ואת הנימוקים שלה. כשההחלטה קשה — יש לומר זאת, אבל לא לתעד כל צעד ומעד בדרך.
+
+> "The writing should reflect only the final decision and the reasons for it. Where the decision is a close one, the opinion should say so, but it should not record every step and misstep the writer took along the way."
+> — 1991, עמ' 10; 2020, עמ' 9
+
+**יישום לוועדת ערר:** הדיון בבלוק י לא מתעד את התלבטויות הוועדה. אם ההחלטה קשה — ניתן לכתוב "הדבר אינו נקי מספקות, אולם..." ולהמשיך בנימוק ברור לתוצאה.
+
+---
+
+## B. כתיבת חלק הדיון/ניתוח — לב ההחלטה
+
+### B1. הדיון חייב להיות מבוסס על היגיון ולוגיקה, לא על טיעון
+
+**העיקרון:** חלק הדיון הוא לב ההחלטה. הוא חייב להדגים שמסקנת בית המשפט מבוססת על שכל ישר ולוגיקה. הוא צריך לשכנע את הקורא בכוח הנימוק — לא באמצעות סנגוריה או טיעון.
+
+> "The discussion of legal principles is the heart of the opinion. It must demonstrate that the court's conclusion is based on reason and logic. It should persuade the reader of the correctness of the result by the power of its reasoning, not by advocacy or argument."
+> — 1991, עמ' 16; 2020, עמ' 16
+
+**יישום לוועדת ערר:** בלוק י — הדיון לא "טוען" בעד התוצאה אלא בונה שרשרת נימוקים: כלל → עובדות → מסקנה. הטון ניטרלי-אנליטי, לא אדברסרי.
+
+---
+
+### B2. סוגיות מכריעות קודם
+
+**העיקרון:** ככלל, סוגיות מכריעות (dispositive) צריכות להידון ראשונות. הסדר ייקבע על-ידי הלוגיקה של הנימוק. סוגיות שאינן מכריעות — אם בכלל נדונות — באות בסוף.
+
+> "Generally, dispositive issues should be discussed first. The order in which those issues are taken up will be governed by the opinion's reasoning. If non-dispositive issues are addressed at all — for educational reasons or to guide further proceedings — discuss them near the end of the opinion."
+> — 1991, עמ' 16-17; 2020, עמ' 16-17
+
+**יישום לוועדת ערר:** אם יש טענת סף (אי-עמידה בתנאי, איחור) — נדונה קודם. אם נדחית, ממשיכים לגוף הערר. בתוך הדיון — הסוגיה שמכריעה את הערר קודמת.
+
+---
+
+### B3. לא לדון בכל מה שהצדדים העלו
+
+**העיקרון:** ככלל, ההחלטה צריכה לדון רק בסוגיות שיש לפתור כדי להכריע בתיק. מה שהוועדה אינה צריכה להכריע — לא צריך לדון בו. אם הערכאה מגלה שסוגיה שהצדדים לא העלו היא מכריעה — עליה להודיע לצדדים ולאפשר להם לטעון.
+
+> "An opinion should not range beyond the issues presented; it should address only the issues that need to be resolved to decide the case."
+> — 1991, עמ' 17; 2020, עמ' 17
+
+**יישום לוועדת ערר:** אם העורר העלה 8 טענות אבל 2 מכריעות — הדיון מתמקד ב-2. את השאר ניתן לציין בקצרה ("אין צורך להכריע בשאר הטענות" או "טענה זו נבחנה ונמצא כי אין בה ממש").
+
+---
+
+### B4. סוגיות שאינן נחוצות — מספיק להראות שנשקלו
+
+**העיקרון:** סוגיות שאינן נחוצות להכרעה אך הצד המפסיד הציגן ברצינות — יש לדון בהן רק במידה הנדרשת כדי להראות שנשקלו. הקו בין מה שנחוץ למה שלא — לא תמיד ברור.
+
+> "Issues not necessary to the decision but seriously urged by the losing party should be discussed only to the extent necessary to show that they have been considered."
+> — 1991, עמ' 17; 2020, עמ' 17
+
+**יישום לוועדת ערר:** טענה שהועלתה בכובד ראש אך אינה מכריעה — משפט עד פסקה. "טענה זו נבחנה על ידי הוועדה. נוכח מסקנתנו לעיל, אין צורך להכריע בה." או דיון קצר שמראה שהטענה נשקלה.
+
+---
+
+### B5. שיקולי יעילות — מתי לדון במה שלא חייבים
+
+**העיקרון:** לפעמים שיקולי יעילות מצדיקים דיון בסוגיות שאינן נחוצות להכרעה — למשל, לתת הנחיות לערכאה הנמוכה בהחזרה. אך יש להיזהר מלהכריע בסוגיות שלא בפני הערכאה ומלתת חוות דעת מייעצות.
+
+> "Considerations of economy and efficiency may argue in favor of addressing issues not necessary to the decision if the court can thereby provide useful guidance for the lower court on remand. In doing so, however, judges must be careful not to prejudge issues that are not before them and to avoid advisory opinions."
+> — 1991, עמ' 17; 2020, עמ' 17
+
+**יישום לוועדת ערר:** כשהערר מוחזר לוועדה המקומית — כדאי לתת הנחיות ברורות ("על הוועדה המקומית לבחון..." / "יש לשקול..."). אך לא להכריע בשאלות שלא נטענו.
+
+---
+
+### B6. הקדמת תקן הביקורת
+
+**העיקרון:** ההחלטה צריכה לציין את תקן הביקורת (standard of review) בתחילת חלק הדיון. בלי זה — משמעות ההחלטה עלולה להיות עמומה. ציון התקן גם ממשמע את הניתוח.
+
+> "The opinion should specify the controlling standard of review at the outset of the discussion of legal principles. Unless the reader is told whether review is under the de novo, the clearly erroneous, or the abuse of discretion standard, the meaning of the decision may be obscure."
+> — 1991, עמ' 16; 2020, עמ' 16
+
+**יישום לוועדת ערר:** בבלוק ט או תחילת בלוק י — ציון סמכות הוועדה ותקן הביקורת: "הוועדה רשאית להפעיל שיקול דעת עצמאי / הוועדה בוחנת את שיקול הדעת של הוועדה המקומית / ביקורת שיפוטית על שומה מכרעת" וכו'.
+
+---
+
+### B7. החזקות חלופיות — "גם אם" / "אף בהנחה"
+
+**העיקרון:** ציון עילות נפרדות ועצמאיות להחלטה מחזק את ההחלטה אך מחליש את ערכה כתקדים. יש להימנע מ"גם אם" ו"בהנחת ארגומנדו" כי הם מערערים את סמכות ההחזקה. אלטרנטיבה: לטפל בעילה החלופית קודם ולציין את העילה העיקרית אחרונה.
+
+> "Stating separate and independent grounds for a decision adds strength to the decision but diminishes its value as a precedent. Statements such as 'even if the facts were otherwise' or 'assuming arguendo that we had not concluded thus and so' undermine the authority of the holding."
+> — 1991, עמ' 17; 2020, עמ' 17
+
+> "Witkin suggests either limiting the 'even if' approach to situations where it is necessary to achieve a majority decision, or avoiding it completely by phrasing the opinion in such a manner that the alternative assumption is disposed of first and the substantial ground of the opinion stated last."
+> — 1991, עמ' 17; 2020, עמ' 17
+
+**יישום לוועדת ערר:** במקום לכתוב "גם אם היינו מקבלים את טענת העורר..." — עדיף לסדר את הדיון כך שהעילה המשנית נדונה קודם ונדחית, ואז העילה העיקרית מובאת כבסיס מוצק. אם בכל זאת משתמשים ב"אף בהנחה" — רק כשזה מחזק את ההחלטה משמעותית.
+
+---
+
+### B8. הניתוח לא יהיה קריפטי
+
+**העיקרון:** אמנם תמציתיות רצויה, אבל השופט חייב לפרט את הנימוקים במידה מספקת כדי שהקורא יוכל לעקוב. החלטה שמדלגת על צעדים בנימוק — לא משיגה את מטרותיה.
+
+> "While brevity is desirable, judges must elaborate their reasoning sufficiently so that the reader can follow. An opinion that omits steps in the reasoning essential to understanding will fail to serve its purposes."
+> — 1991, עמ' 22; 2020, עמ' 22
+
+**יישום לוועדת ערר:** בלוק י — כל מעבר מכלל לעובדה למסקנה צריך להיות מפורש. לא לכתוב "העובדות מלמדות כי הערר אינו מוצדק" בלי לפרט למה.
+
+---
+
+## C. טיפול בעובדות
+
+### C1. רק עובדות הנחוצות להסברת ההחלטה
+
+**העיקרון:** יש לכלול רק את העובדות הנחוצות להסברת ההחלטה. עם זאת, מה שנחוץ אינו תמיד מובן מאליו ותלוי בקהל היעד.
+
+> "Only the facts that are necessary to explain the decision should be included, but what is necessary to explain the decision is not always obvious and may also vary depending on the audience."
+> — 1991, עמ' 15; 2020, עמ' 15
+
+**יישום לוועדת ערר:** בלוק ו — עובדות רלוונטיות בלבד. לא לפרט את כל תולדות המקרקעין אם רק עניין אחד רלוונטי. אבל "מבחן השופט" — לשופט שלא מכיר את התיק צריך לתת מספיק רקע.
+
+---
+
+### C2. פרטי עובדות מיותרים מסיחים דעת
+
+**העיקרון:** פרטים עובדתיים מיותרים מסיחים דעת. תאריכים, למשל, נוטים לבלבל ואין לכלול אותם אלא אם הם מהותיים להחלטה.
+
+> "Excessive factual detail can be distracting. Dates, for example, tend to confuse and should not be included unless material to the decision or helpful to its understanding."
+> — 1991, עמ' 15; 2020, עמ' 15
+
+**יישום לוועדת ערר:** בבלוק ו — לא לכתוב "ביום 15.3.2024 הגיש העורר בקשה, וביום 22.4.2024 הוועדה המקומית דנה, וביום 3.5.2024 ניתנה החלטה..." אלא אם הזמנים מהותיים (למשל, שאלת איחור).
+
+---
+
+### C3. עובדות הצד המפסיד — אסור להתעלם
+
+**העיקרון:** תמציתיות ופשטות רצויים, אך הם משניים לצורך בהצגה מלאה והוגנת. אין להתעלם מעובדות משמעותיות שתומכות בצד המפסיד.
+
+> "While brevity and simplicity are always desirable, they are secondary to the need for a full and fair statement. Facts significant to the losing side should not be ignored."
+> — 1991, עמ' 15; 2020, עמ' 15
+
+**יישום לוועדת ערר:** בבלוק ו — אם יש עובדה שתומכת בטענת העורר שנדחה, היא חייבת להופיע. רקע ניטרלי = כולל את הכול, לא רק את מה שתומך בתוצאה.
+
+---
+
+### C4. עובדות "צבעוניות" — סיכון
+
+**העיקרון:** יש שופטים שאוהבים לכלול עובדות שאינן מהותיות אך מוסיפות צבע. הסכנה: הקורא עלול לחשוב שההחלטה מבוססת על עובדות אלה. גם הצדדים עלולים לראות בכך זלזול בתיק.
+
+> "There is an obvious danger, however, that the reader may think the decision is based on these facts even though they are not material to the reasoning. Moreover, this style of writing — though appealing to the author — may be seen by the parties as trivializing the case."
+> — 1991, עמ' 15; 2020, עמ' 15
+
+**יישום לוועדת ערר:** בבלוק ו — לא לכלול פרטים "מעניינים" שאינם רלוונטיים. לא לתאר את נוף השכונה או היסטוריה שאינה נחוצה. כל עובדה שמופיעה — הקורא יניח שהיא רלוונטית להחלטה.
+
+---
+
+### C5. דיוק עובדתי — אין תחליף לבדיקת הרשומה
+
+**העיקרון:** הצגת העובדות חייבת להיות מדויקת. אין להניח שעובדות כפי שמוצגות בכתבי הטענות נכונות. אין תחליף לבדיקה מול הרשומה.
+
+> "Above all, the statement of facts must be accurate. The writer should not assume that the facts recited in the parties' briefs are stated correctly. There is no substitute for checking fact references against the record."
+> — 1991, עמ' 15; 2020, עמ' 16
+
+> "Misstating significant facts or authorities is a mark of carelessness and undermines the opinion's authority and integrity."
+> — 1991, עמ' 1; 2020, עמ' 1
+
+**יישום לוועדת ערר:** המערכת חייבת לוודא שעובדות בבלוק ו נלקחות מחומרי המקור (פרוטוקולים, תכניות, תצהירים) — לא מכתבי הטענות. שגיאה עובדתית = פגיעה בסמכות ההחלטה.
+
+---
+
+### C6. בתיקים רב-סוגייתיים — עובדות כלליות בהתחלה, ספציפיות בדיון
+
+**העיקרון:** כשיש סדרת סוגיות ולא כל העובדות רלוונטיות לכולן, ניתן להגביל את תיאור העובדות ההתחלתי לרקע היסטורי נחוץ ולשלב עובדות ספציפיות בניתוח של כל סוגיה.
+
+> "In such a case, the initial statement of facts may be limited to necessary historical background, leaving the specific decisional facts to be incorporated in the analysis of the issues on which they bear."
+> — 1991, עמ' 15; 2020, עמ' 15
+
+**יישום לוועדת ערר:** בלוק ו — רקע כללי (מיקום, תכנית רלוונטית, ההליך). בבלוק י — עובדות ספציפיות לכל סוגיה, עם הפניה לבלוק ו אם צריך. נמנעים מכפילות.
+
+---
+
+## D. ציטוטים ואזכורי פסיקה
+
+### D1. אזכור מקרה אחד מספיק — לא מחרוזות
+
+**העיקרון:** רוב הנקודות המשפטיות נתמכות היטב באזכור הפסק האחרון בעניין, או פסק-הדין הפורץ דרך. מחרוזות אזכורים ודיסרטציות על תולדות הכלל אינן מוסיפות כשהעניין מוסדר. יש להתנגד לפיתוי להרשים בלמדנות.
+
+> "Most points of law are adequately supported by citation of the latest decision on point in the court's circuit or the watershed case, if there is one. String citations and dissertations on the history of the rule add nothing when the matter is settled."
+> — 1991, עמ' 17; 2020, עמ' 18
+
+> "Judges should resist the temptation of trying to impress people with their (or their law clerks') erudition."
+> — 1991, עמ' 17; 2020, עמ' 18
+
+**יישום לוועדת ערר:** לא לכתוב "ראו: עע"מ X; עע"מ Y; עע"מ Z; עת"מ A; עת"מ B" כשמספיק פסק אחד מנחה. מחרוזת אזכורים → מיותרת ומעמיסה. אזכור אחד + ציטוט רלוונטי = מספיק.
+
+---
+
+### D2. פריצת דרך — כן לסקור את המקורות
+
+**העיקרון:** כאשר ההחלטה פורצת דרך חדשה, יש למרשל את המקורות הקיימים ולנתח את התפתחות הדין כדי לתמוך בכלל החדש.
+
+> "If an opinion breaks new ground, however, the court should marshal existing authority and analyze the evolution of the law sufficiently to support the new rule."
+> — 1991, עמ' 17; 2020, עמ' 18
+
+**יישום לוועדת ערר:** כשהוועדה קובעת עמדה חדשה (למשל, פרשנות חדשה של סעיף בחוק) — יש לסקור את ההתפתחות בפסיקה ולהראות איך העמדה החדשה נגזרת מהדין הקיים.
+
+---
+
+### D3. מקורות משניים — במשורה ולמטרה
+
+**העיקרון:** מקורות משניים (מאמרים, ספרים, מקורות לא-משפטיים) אינם סמכות ראשית ויש לאזכר אותם במשורה ורק לתכלית ברורה: הפניה לניתוח תומך, סמכות מוכרת בתחום, או שפיכת אור על שיקולי מדיניות.
+
+> "Because law review articles, treatises, texts, and non-legal sources are not primary authority, they should be cited sparingly and only to serve a purpose."
+> — 1991, עמ' 18; 2020, עמ' 18
+
+**יישום לוועדת ערר:** ספרות תכנון, חוות דעת מומחים, מסמכי מדיניות — ניתן לאזכר אך רק כשתורמים ממשית לנימוק, לא כעיטור.
+
+---
+
+### D4. ציטוטים — קצרים, הוגנים, רק כשהם חשובים
+
+**העיקרון:** אם משהו חשוב נאמר היטב לפני כן — ציטוט רלוונטי יכול להיות משכנע יותר מפרפרזה. אך ההשפעה של ציטוט יחס הפוך לאורכו. יש לצטט בקצרה, ורק כשהניסוח עושה נקודה חשובה. הציטוט חייב להיות הוגן — בהקשר ומשקף נאמנה את המקור.
+
+> "If something important to the opinion has been said well before, quoting relevant language from a case on point can be more persuasive and informative than merely citing or paraphrasing it. The impact of a quote, however, is inversely proportional to its length. Quote briefly, and only when the language makes an important point."
+> — 1991, עמ' 18; 2020, עמ' 18
+
+> "While quotes should be short, they must also be fair. They must be in context and accurately reflect the tenor of their source."
+> — 1991, עמ' 18; 2020, עמ' 18
+
+**יישום לוועדת ערר:** לא להביא פסקאות שלמות מפסקי דין. ציטוט = 1-2 משפטים לכל היותר, ורק כשהניסוח המקורי חשוב (כלל מנחה, אמירה מכוננת). תמיד לוודא שהציטוט בהקשרו.
+
+---
+
+### D5. הערות שוליים — רק למידע שמפריע לזרימה
+
+**העיקרון:** מטרת הערת שוליים היא להעביר מידע שיפריע לזרימת ההחלטה אם יכלל בטקסט. השאלה הראשונה: האם התוכן מוצדק בכלל. אם הוא לא חשוב מספיק לטקסט — צריכה להיות סיבה טובה לכלול אותו בהערה. הערות שוליים לא צריכות להיות מאגר של מידע שהכותב לא יודע מה לעשות איתו.
+
+> "The first question to ask about a prospective footnote is whether its content is appropriate for inclusion in the opinion. If it is not important enough to go into the text, the writer must have some justification for including it in the opinion at all."
+> — 1991, עמ' 24; 2020, עמ' 24
+
+> "Footnotes should not be inserted for the writer's gratification or as a repository for information that the writer does not know what to do with."
+> — 1991, עמ' 24
+
+**יישום לוועדת ערר:** הערות שוליים רק לטקסט חקיקה, פרטי רקע נחוצים אך לא-מרכזיים, או דחיית טענה צדדית בקצרה. לא מאגר לחומר "מעניין".
+
+---
+
+## E. טיפול בצד המפסיד
+
+### E1. דיון מספיק כדי להראות שהטענות נשקלו
+
+**העיקרון:** השופט חייב להתמודד עם סמכות נוגדת לכאורה ועם טענות נגדיות. עליו להתעמת עם הסוגיות ישירות ובכנות. ההחלטה לא צריכה להתייחס לכל תיק וטענה, אך הדיון חייב להספיק כדי להדגים לצד המפסיד שהיסודות של עמדתו נשקלו במלואם.
+
+> "The judge must deal with arguably contrary authority and opposing argument, and must confront the issues squarely and deal with them forthrightly. Although the opinion need not address every case and contention, the discussion must be sufficient to demonstrate to the losing party that the essentials of its position have been fully considered."
+> — 1991, עמ' 16; 2020, עמ' 16
+
+**יישום לוועדת ערר:** זהו עיקרון מפתח. כשהערר נדחה — הדיון חייב להראות שהוועדה הבינה את הטענה המרכזית וענתה עליה. לא צריך לענות על כל נקודה, אבל הטענה העיקרית של הצד המפסיד חייבת לקבל מענה מנומק.
+
+---
+
+### E2. לא להפוך לוויכוח עם עורכי הדין
+
+**העיקרון:** בהתייחסות לטענות הצד המפסיד, ההחלטה לא צריכה להפוך לוויכוח בין השופט לעורכי הדין. אם הוצגו טענות מהותיות — יש להסביר למה נדחו. אבל אין צורך להפריך את טענות הצד המפסיד נקודה בנקודה או לאמץ טון עוין.
+
+> "An opinion should not become an argument between the judge and the lawyers, or other judges on the court, or the court below. If the losing side has raised substantial contentions, the opinion should explain why they were rejected. But it need not refute the losing party's arguments point by point or adopt a contentious or adversarial tone."
+> — 1991, עמ' 18; 2020, עמ' 18-19
+
+**יישום לוועדת ערר:** הדיון לא מתנהל כ"תשובה לכתב הערר". הוועדה מנתחת את השאלה — לא מתווכחת עם הטוען. במקום "טענת העורר כי X — שגויה מיסודה" → "לאחר בחינת הסוגיה נמצא כי Y, ועל כן אין לקבל את הטענה".
+
+---
+
+### E3. הרשעה בלי להיות טרקט
+
+**העיקרון:** החלטה יכולה — וצריכה — לשדר שכנוע בלי להפוך לחוברת. יש להניח בצד רגשות ותחושות אישיות, ולהימנע משימוש בשמות תואר ותארי פועל אלא אם הם מעבירים מידע מהותי.
+
+> "An opinion can — and properly should — carry conviction without becoming a tract. Put aside emotion and personal feelings, and avoid using adjectives and adverbs unless they convey information material to the decision."
+> — 1991, עמ' 18-19; 2020, עמ' 19
+
+**יישום לוועדת ערר:** לא "בבירור" / "ללא ספק" / "ברי כי" אלא אם מדובר בעניין שבאמת ברור. הטון של דפנה — מקצועי, מרוסן, בטוח אך לא פומפוזי.
+
+---
+
+### E4. התייחסות לערכאה הנמוכה — ללא ביקורת מיותרת
+
+**העיקרון:** ניתן ונדרש לתקן שגיאות של הערכאה הנמוכה, אך ללא ביקורת מיותרת, ללא תקיפת שיקול דעתה או גישתה, וללא ייחוס מניעים לא ראויים.
+
+> "Appellate opinions can and should correct trial court errors and provide guidance on remand without embroidering on the circumstances or criticizing the court below. An appellate opinion need not attack a trial court's wisdom, judgment, or even its attitude in order to reverse its decision."
+> — 1991, עמ' 19; 2020, עמ' 19
+
+**יישום לוועדת ערר:** כשהערר מתקבל = הוועדה המקומית טעתה. אבל הנימוק צריך להתמקד ב"מה צריך להיות" — לא ב"כמה טעתה הוועדה המקומית". ללא ביטויים כמו "באופן מפתיע" / "למרבה הפליאה".
+
+---
+
+## F. ניסוח התוצאה / המסקנה
+
+### F1. התוצאה היא החלק הכי חשוב
+
+**העיקרון:** התוצאה האופרטיבית — וההוראות לערכאה הנמוכה או לגורם המנהלי — היא החלק הכי חשוב בפסקת הסיום.
+
+> "Disposition of a case — and the mandate to the lower court or agency, when that is a part of the disposition — is the most important part of the conclusion."
+> — 1991, עמ' 19; 2020, עמ' 19
+
+**יישום לוועדת ערר:** בלוקים יא-יב — חייבים להיות ברורים ואופרטיביים. "הערר נדחה" / "הערר מתקבל" / "הערר מתקבל בחלקו". בהחזרה — הוראות מפורטות.
+
+---
+
+### F2. לא לדבר בחידות
+
+**העיקרון:** אין לדבר בחידות. להחזיר תיק "להליכים נוספים בהתאם להחלטה זו" עלול להותיר את הערכאה הנמוכה בים. ההחלטה חייבת לפרט בבירור מה צפוי מהם — מבלי לפלוש לשיקול הדעת שנותר בידיהם.
+
+> "Appellate courts should not speak in riddles. Simply to remand a case 'for further proceedings consistent with the opinion' may leave the court below at sea. Opinions must spell out clearly what the lower courts or agencies are expected to do without, however, trespassing on what remains entrusted to their discretion."
+> — 1991, עמ' 19; 2020, עמ' 19
+
+**יישום לוועדת ערר:** במקום "הערר מוחזר לדיון מחדש" → "הערר מוחזר לוועדה המקומית לצורך בחינה מחדש של [X] בהתאם לתכנית [Y], תוך מתן הזדמנות שימוע לעורר ובהתחשב ב[Z]." הוראות ספציפיות ואופרטיביות.
+
+---
+
+### F3. גם כשנמצא שימוש לרעה בשיקול דעת — הסמכות נשארת
+
+**העיקרון:** גם כשנמצא שימוש לרעה בשיקול דעת, החלטת ערכאת הערעור היא בשאלת הדין. הערכאה הנמוכה או הגוף המנהלי בהחזרה שומרים על סמכותם להפעיל שיקול דעת כראוי.
+
+> "Even where an abuse of discretion is found, the appellate court's decision is on the law, and the lower court or agency on remand retains the authority to exercise its discretion properly."
+> — 1991, עמ' 19; 2020, עמ' 19
+
+**יישום לוועדת ערר:** כשהוועדה המקומית לא שקלה שיקול רלוונטי — הערר מוחזר כדי שתשקול אותו. אין לכפות תוצאה ספציפית (אלא אם הדין מחייב).
+
+---
+
+## G. שפה, סגנון, עריכה עצמית
+
+### G1. שלוש בעיות עיקריות — יתירות, חוסר דיוק, ארגון גרוע
+
+**העיקרון:** הבעיות העיקריות בכתיבה שיפוטית: (א) יתירות — לא רק שימוש בשתי מילים כשמספיקה אחת, אלא ניסיון להעביר יותר מדי מידע, לכסות יותר מדי סוגיות, ופשוט לכתוב יותר מדי; (ב) חוסר דיוק ובהירות; (ג) ארגון גרוע.
+
+> "Wordiness means not just verbosity — using two words when one will do — but trying to convey too much information, covering too many issues, and simply writing too much."
+> — 1991, עמ' 21; 2020, עמ' 21
+
+> "Often wordiness reflects the writer's failure (or inability) to separate the material from the immaterial and do the grubby work of editing."
+> — 1991, עמ' 21; 2020, עמ' 21
+
+**יישום לוועדת ערר:** עריכה קפדנית של כל בלוק. אם משפט לא מקדם את הנימוק — למחוק. אם סוגיה לא נחוצה — לקצר או להסיר.
+
+---
+
+### G2. דיוק — המטרה המרכזית
+
+**העיקרון:** דיוק הוא המטרה המרכזית של כתיבה טובה. כדי לכתוב בבהירות ודיוק — הכותב חייב לדעת בדיוק מה הוא רוצה לומר, ולומר את זה ותו לא. שופטים כותבים לנצח — ברגע שהחלטה מוגשת, עורכי דין יקראו אותה עם עין למה שישרת את מטרתם.
+
+> "To write with clarity and precision, the writer must know precisely what he or she wants to say and must say that and nothing else."
+> — 1991, עמ' 21; 2020, עמ' 21
+
+> "Precision in judicial writing is important not simply as a matter of style but also because judges write for posterity. Once an opinion is filed, lawyers and others will read it with an eye to how they can use it to serve their particular purpose."
+> — 1991, עמ' 21; 2020, עמ' 21
+
+**יישום לוועדת ערר:** כל משפט — "האם אמרתי בדיוק מה שרציתי? האם ניתן לקרוא את זה אחרת ממה שהתכוונתי?" מיוחד חשוב בהחלטות שקובעות תקדים.
+
+---
+
+### G3. השמטת מילים מיותרות — עיקרון סטרנק
+
+**העיקרון:** כתיבה עזה היא תמציתית. כל מילה צריכה לעבוד.
+
+> "Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell."
+> — Strunk & White, מצוטט ב-1991, עמ' 22-23; 2020, עמ' 22-23
+
+**יישום לוועדת ערר:** בעריכה — לסמן כל מילה ולשאול: "האם היא נחוצה?" לא "קצר" — אלא "כל מילה עובדת". זהו הכלל המרכזי לסגנון דפנה.
+
+---
+
+### G4. תמציתיות ועמידה בנקודה
+
+**העיקרון:** תמציתיות מקדמת בהירות. כתיבה שמגיעה לנקודה בקצרה — מובנת יותר. יש להשתמש במשפטים פשוטים ודקלרטיביים ובפסקאות קצרות, אך לגוון את אורך המשפט ומבנהו לצורכי הדגשה וניגוד. יש להעדיף לשון פעילה ולהימנע מבניות כמו "נטען כי", "הוטען כי".
+
+> "Use simple, declarative sentences and short paragraphs most of the time, but vary sentence length and structure where necessary for emphasis, contrast, and reader interest. Prefer the active voice and avoid constructions such as 'it is said,' 'it is argued,' and 'it is well founded.'"
+> — 1991, עמ' 23; 2020, עמ' 23
+
+> "Weed out adjectives and eliminate adverbs such as 'clearly,' 'plainly,' and 'merely.'"
+> — 1991, עמ' 23; 2020, עמ' 23
+
+**יישום לוועדת ערר:** לא "נטען על-ידי העורר כי הוועדה המקומית טעתה" → "העורר טוען כי הוועדה המקומית טעתה". לא "ברי כי" / "מובן מאליו כי" — אם זה ברור, לא צריך לומר שזה ברור.
+
+---
+
+### G5. שפה פשוטה — אנגלית/עברית רגילה
+
+**העיקרון:** אפילו רעיונות מורכבים ניתנים לביטוי בשפה פשוטה. יש להימנע מ"לשון משפטית", קלישאות, ביטויים שחוקים, ביטויים לטיניים, וז'רגון. כשמשתמשים במונחי מקצוע — לבדוק אם הם מובנים לקהל או דורשים הגדרה.
+
+> "Even complex ideas can be expressed in simple language understandable by the general reader. To write in simple language requires that the writer understand the idea fully, enabling him or her to break it down into its essential components."
+> — 1991, עמ' 23; 2020, עמ' 23
+
+> "Avoid 'legalese,' clichés, hackneyed phrases ('as hereinabove set forth,' for example), Latin expressions ('vel non,' for example), and jargon."
+> — 1991, עמ' 23; 2020, עמ' 23
+
+**יישום לוועדת ערר:** לא "כדרישת הדין ולפיו" / "לאמור לעיל" / "כאמור" (מיותר). עברית פשוטה ובהירה. מונח תכנוני — להגדיר אם לא ברור ("תכנית בניין עיר" לא "תב"ע" ללא הגדרה ראשונית).
+
+---
+
+### G6. פומפוזיות — להימנע
+
+**העיקרון:** כתיבה שיפוטית עלולה להיות פומפוזית. השופט חייב להיזהר: ביטויים ארכאיים או מליציים, שימוש ב"אנו" הקיסרי על-ידי שופט יחיד, סטיות ללמדנות שאינה רלוונטית.
+
+> "The judge must be vigilant for evidence of pomposity, such as arcane or florid expressions, use of the imperial 'we' by a single district judge, or excursions into irrelevant erudition."
+> — 1991, עמ' 22; 2020, עמ' 22
+
+**יישום לוועדת ערר:** הוועדה = "הוועדה", לא "אנו סבורים" (אם יו"ר יחיד כותב). לא "למותר לציין כי" / "מן המפורסמות הוא כי". טון סמכותי אך פשוט.
+
+---
+
+### G7. הומור — סיכון שלא כדאי לקחת
+
+**העיקרון:** הומור עובד טוב יותר בנאום מאשר בהחלטה. בעלי הדין — שלא סביר שיראו משהו מצחיק בהתדיינות — עלולים לראות בו סימן ליהירות וחוסר רגישות.
+
+> "Although humor is sometimes rationalized as an antidote to pomposity, it works better in after-dinner speeches than in judicial opinions. In the latter it may strike the litigants — who are not likely to see anything funny in the litigation — as a sign of judicial arrogance and lack of sensitivity."
+> — 1991, עמ' 22; 2020, עמ' 22
+
+**יישום לוועדת ערר:** לא הומור, לא אירוניה, לא ציניות בהחלטות. גם אם הטענה נראית מגוחכת — להתייחס בכבוד.
+
+---
+
+### G8. עריכה — לא רק שפה, גם תוכן ומבנה
+
+**העיקרון:** בעריכה, השופט צריך לבדוק: (א) עקביות פנימית; (ב) האם המבוא מכסה את כל הסוגיות; (ג) האם העובדות מכסות את כל מה שנחוץ להחלטה ולא יותר; (ד) האם הדיון מתייחס בסדר לוגי לכל הסוגיות; (ה) האם המסקנה נובעת מהדיון.
+
+> "Judges must check for internal consistency. Go back to the introduction to see whether the opinion has addressed all of the issues and answered the questions as they were initially formulated. Reread the statement of facts to see whether it covers all the facts significant to the decision and no more. Review the legal discussion to see whether the opinion has addressed in logical order the issues that need to be addressed. Consider whether the conclusion follows from the discussion."
+> — 1991, עמ' 25; 2020, עמ' 25-26
+
+**יישום לוועדת ערר:** צ'קליסט עריכה אוטומטי: (1) עקביות בלוק א ↔ בלוק יב; (2) כל עובדה בבלוק ו מופיעה בדיון?; (3) סדר הסוגיות לוגי?; (4) המסקנה נובעת מהניתוח?
+
+---
+
+### G9. הנחת הטיוטה בצד ושיבה אליה
+
+**העיקרון:** שיפור העריכה — על-ידי הנחת הטיוטה בצד ושיבה אליה מאוחר יותר. גם עיכוב של ימים ספורים מאפשר מבט אובייקטיבי יותר, תובנות חדשות, ורעיונות חדשים.
+
+> "Although time constraints and mounting caseloads may make it difficult, delaying editing the opinion for even a few days may help the judge review things more objectively, gain new insights, and think of new ideas."
+> — 1991, עמ' 25; 2020, עמ' 26
+
+**יישום לוועדת ערר:** בתהליך העבודה עם המערכת — שלב "צינון" לפני עריכה סופית. הטיוטה נשמרת, יו"ר הוועדה חוזרת אליה לאחר זמן.
+
+---
+
+### G10. עריכה משפט-משפט
+
+**העיקרון:** עריכה מדוקדקת ומהורהרת חיונית לכתיבה מדויקת. זה אומר לעבור על ההחלטה משפט אחרי משפט ולשאול: מה התכוונתי לומר כאן, והאם אמרתי את זה ולא יותר?
+
+> "Painstaking and thoughtful editing is essential for precise writing. This means going over the opinion, sentence by sentence, and asking: What do I mean to say here, and have I said it and no more?"
+> — 1991, עמ' 21-22; 2020, עמ' 21
+
+**יישום לוועדת ערר:** כל בלוק — עריכה ברמת המשפט. כל משפט עומד בפני עצמו ומוסיף מידע חדש או נקודה חדשה.
+
+---
+
+## H. חידושים ייחודיים למהדורה השנייה (2020)
+
+### H1. התייחסות לעידן הדיגיטלי
+
+**העיקרון:** המהדורה השנייה מציינת שהחלטות שיפוטיות נקראות יותר ויותר בפורמט דיגיטלי, ולכן הבהירות חשובה אף יותר.
+
+> "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."
+> — 2020, Foreword, עמ' ix
+
+**יישום לוועדת ערר:** ההחלטות מתפרסמות באתר הוועדה ובמאגרי מידע — מותאמות לקריאה דיגיטלית. כותרות, מבנה, פסקאות קצרות.
+
+---
+
+### H2. ציטוט מ-Bryan Garner על שפה משפטית
+
+**העיקרון:** המהדורה השנייה מוסיפה ציטוט מ-Garner על הימנעות מביטויים משפטיים מסורתיים:
+
+> "[N]ever assume that traditional legal expressions are legally necessary. As often as not they are scars left by the law's verbal elephantiasis, which only lately has started into remission. Use words and phrases that you know to be both precise and as widely understood as possible."
+> — Bryan Garner, מצוטט ב-2020, עמ' 23-24
+
+**יישום לוועדת ערר:** ביטויים כמו "בכבוד רב", "מן הראוי", "למיטב הבנתנו" — לא "נחוצים משפטית". להחליף בשפה פשוטה ומדויקת.
+
+---
+
+### H3. מודעות לפרסום בלתי נשלט
+
+**העיקרון:** המהדורה השנייה מוסיפה אזהרה שמפרסמים משפטיים (כמו Westlaw) מפרסמים לפעמים החלטות שסומנו כ"לא לפרסום" — על סמך שיקול דעתם שלהם.
+
+> "Some legal publishers, including Westlaw, put certain district court orders and opinions on line whether or not the judge designates them for publication and even sometimes when a judge states that the order or opinion is 'not for publication.'"
+> — 2020, עמ' 7
+
+**יישום לוועדת ערר:** כל החלטה של ועדת הערר עלולה להתפרסם ולשמש תקדים — גם אם לא תוכננה לכך. יש לכתוב כל החלטה כאילו תפורסם.
+
+---
+
+### H4. הדגשת ניתוח קריפטי כבעיה נפרדת
+
+**העיקרון:** המהדורה השנייה מבנה את "ניתוח קריפטי" כבעיה נפרדת (לא רק תת-סעיף) — מה שמדגיש את חשיבות פירוט הנימוקים.
+
+**יישום לוועדת ערר:** בלוק י — כל צעד בנימוק חייב להיות מפורש. אסור "לדלג" מכלל למסקנה בלי ליישם על העובדות.
+
+---
+
+### H5. מבנה מעודכן — "Editing the Opinion" כפרק נפרד
+
+**העיקרון:** במהדורה הראשונה, שפה/סגנון/עריכה היו פרק אחד. במהדורה השנייה, "Editing" הוא פרק נפרד (V), מה שמדגיש את חשיבות העריכה כתהליך עצמאי ולא כחלק מהכתיבה.
+
+**יישום לוועדת ערר:** בתהליך העבודה — שלב עריכה מוגדר, נפרד מהכתיבה. המערכת מפעילה צ'קליסט עריכה אוטומטי אחרי יצירת הטיוטה.
+
+---
+
+### H6. הפניה ל-Aldisert על חשיבה לוגית לפני כתיבה
+
+**העיקרון:** המהדורה השנייה מוסיפה ציטוט של שופט Aldisert:
+
+> "If a judge wants to write clearly and cogently, with words parading before the reader in logical order, the judge must first think clearly and cogently, with thoughts laid out in neat rows."
+> — Aldisert, Opinion Writing (2d ed. 2009), מצוטט ב-2020, עמ' 9
+
+**יישום לוועדת ערר:** לפני שהמערכת כותבת — שלב "תכנון" חובה: מה התוצאה? מה הנימוקים? באיזה סדר? רק אחר-כך — כתיבה.
+
+---
+
+## סיכום כללי — עקרונות-על
+
+1. **ההחלטה קיימת כדי להסביר ולשכנע** — לא רק להכריע, אלא להראות שההכרעה מבוססת, הוגנת, ומנומקת.
+2. **כל מילה צריכה לעבוד** — תמציתיות היא לא קיצור אלא הסרת המיותר.
+3. **הצד המפסיד צריך לראות שהוא נשמע** — הדיון חייב להדגים שהטענות המרכזיות נשקלו.
+4. **דיוק הוא הדבר החשוב ביותר** — כל משפט נקרא לנצח וייקרא בדרכים שלא ציפית.
+5. **מבנה ברור = חשיבה ברורה** — כותרות, סדר לוגי, וחמישה אלמנטים.
+6. **לא סנגוריה** — ההחלטה משכנעת בכוח הנימוק, לא בטון.
+7. **עובדות מדויקות והוגנות** — כולל עובדות שתומכות בצד המפסיד.
+8. **ציטוטים קצרים, אזכורים מועטים** — אחד טוב > עשרה מיותרים.
+9. **הוראות אופרטיביות ברורות** — לא חידות, לא עמימות.
+10. **כתוב אחרון — ערוך ראשון** — המבוא נכתב אחרי הדיון; העריכה חשובה כמו הכתיבה.
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+# עקרונות כתיבת החלטות מעין-שיפוטיות — מיצוי מספרי גארנר
+
+מסמך מתודולוגי המבוסס על שני ספרים:
+1. **Making Your Case: The Art of Persuading Judges** (Scalia & Garner, 2008)
+2. **Legal Writing in Plain English** (Garner, 2001)
+
+> **הערה חשובה**: "Making Your Case" נכתב עבור עורכי דין טוענים, לא שופטים. העקרונות כאן מותאמים לכתיבת החלטות — לא לטיעון תיק.
+
+---
+
+## א. חשיבה משפטית והנמקה (Making Your Case, פרקים 22–27)
+
+### א.1 חשיבה סילוגיסטית — מבנה כל טיעון משפטי
+
+**עיקרון**: כל הנמקה משפטית חייבת להיבנות כסילוגיזם: הנחה עליונה (כלל משפטי) → הנחה תחתונה (עובדות המקרה) → מסקנה.
+
+> "Leaving aside emotional appeals, persuasion is possible only because all human beings are born with a capacity for logical thought... The most rigorous form of logic, and hence the most persuasive, is the syllogism." (MYC §22)
+
+> "If the major premise (the controlling rule) and the minor premise (the facts invoking that rule) are true... the conclusion follows inevitably." (MYC §22)
+
+**יישום להחלטות ועדת ערר**: כל סוגיה בבלוק י (דיון) חייבת להיבנות כך:
+- הנחה עליונה: הכלל התכנוני/המשפטי (סעיף בתוכנית, פסיקה, עקרון תכנוני)
+- הנחה תחתונה: העובדות הספציפיות של הערר
+- מסקנה: התוצאה לגבי סוגיה זו
+
+**עיקרון משנה — שלושה מקורות להנחה עליונה**:
+
+> "Legal argument generally has three sources of major premises: a text (constitution, statute, regulation, ordinance, or contract), precedent (caselaw, etc.), and policy (i.e., consequences of the decision)." (MYC §22)
+
+**יישום**: בעררי תכנון, המקורות הם:
+- טקסט: הוראות התוכנית, חוק התכנון והבניה, תקנות
+- תקדים: החלטות ועדות ערר קודמות, פסיקת בתי משפט
+- מדיניות: שיקולים תכנוניים (צפיפות, אופי הסביבה, אינטרס ציבורי)
+
+**עיקרון משנה — ההנחה התחתונה היא המפתח**:
+
+> "There is much to be said for the proposition that 'legal reasoning revolves mainly around the establishment of the minor premise.'" (MYC §22)
+
+**יישום**: ברוב העררים, הכלל המשפטי אינו שנוי במחלוקת — השאלה היא כיצד העובדות משתלבות בכלל. ההחלטה חייבת להראות בפירוט כיצד העובדות הספציפיות מקיימות או אינן מקיימות את תנאי הכלל.
+
+### א.2 פרשנות טקסטואלית — ניתוח הוראות תוכנית
+
+**עיקרון ראשי**: לפני כל מסקנה לגבי משמעות טקסט — קרא את המסמך כולו.
+
+> "Paramount rule: Before coming to any conclusion about the meaning of a text, read the entire document, not just the particular provision at issue. The court will be seeking to give an ambiguous word or phrase meaning in the context of the document in which it appears." (MYC §23)
+
+**כללי פרשנות שיש לאמץ**:
+
+> "Words are presumed to bear their ordinary meanings." (MYC §23)
+
+> "Without some contrary indication, a word or phrase is presumed to have the same meaning throughout a document." (MYC §23)
+
+> "The provisions of a document should be interpreted in a way that renders them harmonious, not contradictory." (MYC §23)
+
+> "If possible, every word should be given effect; no word should be read as surplusage." (MYC §23)
+
+**יישום**: כשההחלטה מפרשת הוראת תוכנית:
+1. הצג את לשון ההוראה המלאה
+2. פרש מילים במשמעותן הרגילה
+3. בדוק עקביות עם הוראות אחרות באותה תוכנית
+4. תן תוקף לכל מילה — אל תתעלם ממילים "מיותרות"
+5. אם יש עמימות — השתמש בכלים הקאנוניים (הכלל הכללי מצטמצם לאור הפרט; מילה מתפרשת על פי הקשרה)
+
+**כלים קאנוניים לפרשנות** (MYC §23):
+- **Inclusio unius**: הכללת דבר אחד מרמזת על הדרת אחרים
+- **Noscitur a sociis**: מילה מתפרשת לאור המילים הסמוכות לה
+- **Ejusdem generis**: קטגוריה כללית שבאה אחרי רשימה מתייחסת לפריטים מאותו סוג
+
+### א.3 התחל תמיד מלשון הטקסט
+
+**עיקרון**: כשהמקרה נשלט על ידי טקסט משפטי — התחל תמיד מהמילים.
+
+> "In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise." (MYC §24)
+
+**יישום**: בלוק י חייב לפתוח כל דיון בסוגיה בציטוט ישיר של ההוראה הרלוונטית מהתוכנית/חוק, ורק אז לעבור לניתוח ויישום על העובדות.
+
+### א.4 משקל תקדימים — היררכיה ברורה
+
+**עיקרון**: לסמכויות משפטיות שונות יש משקל שונה, וחובה להכיר בהיררכיה.
+
+> "From a juridical point of view, case authorities are of two sorts: those that are governing (either directly or by implication) and those that are persuasive." (MYC §26)
+
+> "Governing authorities are more significant and should occupy more of your attention." (MYC §26)
+
+**היררכיה בעררי תכנון** (לפי סדר יורד של משקל):
+1. פסיקת בית המשפט העליון
+2. פסיקת בית משפט לעניינים מנהליים (שנותן ביקורת שיפוטית ישירה)
+3. החלטות ועדת ערר ארצית
+4. החלטות ועדות ערר מחוזיות אחרות
+5. ספרות משפטית/תכנונית
+
+**עיקרון משנה — עדיפות לתקדים עדכני**:
+
+> "At least where opinions of governing courts are concerned, the more recent the citation the better. The judge wants to know whether the judgment you seek will be affirmed by the current court, not whether it would have been affirmed 30 years ago." (MYC §26)
+
+### א.5 מצא ניסוח מפורש להנחה העליונה
+
+**עיקרון**: אם אפשר, ציין בדיוק מהי ההנחה העליונה תוך ציטוט ישיר מסמכות מחייבת.
+
+> "It is often quite easy to find a governing case with a passage that says precisely what you want your major premise to be." (MYC §27)
+
+> "When direct quotation is not possible, set forth the major premise in your own words, supported by citation of a case from a governing court." (MYC §27)
+
+**יישום**: בפתיחת דיון בכל סוגיה, ההנחה העליונה צריכה להופיע בצורה ברורה — אם אפשר כציטוט ישיר מפסק דין או מהוראת חוק/תוכנית.
+
+---
+
+## ב. מבנה וארגון (משני הספרים)
+
+### ב.1 הצגת המסקנה מראש (Front-loading)
+
+**עיקרון**: התחל תמיד בהצגת הסוגיה המרכזית לפני שמפרט עובדות.
+
+> "Always start with a statement of the main issue before fully stating the facts." (MYC §14)
+
+> "The facts one reads seem random and meaningless until one knows what they pertain to." (MYC §14)
+
+> "The greatest mistake a lawyer can make either in briefing or oral argument is to keep the court in the dark as to what the case is about until after a lengthy discussion of dates, testimony of witnesses, legal authorities, and the like." (MYC §14, ציטוט השופט McAmis)
+
+**עיקרון משלים מ-Legal Writing in Plain English**:
+
+> "Virtually all analytical or persuasive writing should have a summary on page one—a true summary that capsulizes the upshot of the message. This upshot inevitably consists of three parts: the question, the answer, and the reasons." (LWPE §22)
+
+**יישום**: בלוק א (כותרת) ובלוק ב (סיכום מנהלי) חייבים לגלות מיד את מהות הערר ואת התוצאה. הקורא לא צריך לקרוא 10 עמודים כדי להבין במה מדובר.
+
+### ב.2 טכניקת ה-"Deep Issue" — סילוגיזם בשאלה
+
+**עיקרון**: נסח את הסוגיה בצורת סילוגיזם מכווץ — עד 75 מילים, במספר משפטים.
+
+> "The most persuasive form of an issue statement—the so-called deep issue—contains within it the syllogism that produces your desired conclusion." (MYC §36)
+
+> "The better strategy is to break up the question into separate sentences totaling no more than 75 words. The first sentences follow a chronological order, telling a story in miniature. Then, emerging inevitably from the story, the pointed question comes at the end." (MYC §36)
+
+**דוגמה מהספר**: במקום "האם דו"ח חקירת האירוע הפר כללי OSHA?" — כתוב:
+> "כללי OSHA דורשים שכל דו"ח חקירת אירוע יכלול רשימת גורמים תורמים. הדו"ח על הפיצוץ במפעל פירט את הגורמים התורמים לא בגוף הדו"ח אלא בנספח נפרד. האם הדו"ח הפר את כללי OSHA?"
+
+**יישום**: בלוק ב (סיכום מנהלי) צריך לנסח כל סוגיה בדרך זו — הנחה משפטית, עובדות תמציתיות, שאלה חדה.
+
+### ב.3 שלושה חלקים: פתיחה, גוף, סיכום
+
+**עיקרון**: כל כתיבה אנליטית חייבת שלושה חלקים — ורוב הכתיבה המשפטית מזניחה את הפתיחה והסיכום.
+
+> "Virtually all expository writing should have three parts: an introduction, a main body, and a conclusion. You'd think everyone knows this. Not so: the orthodox method of brief-writing, and the way of many research memos, is to give only one part—a middle." (LWPE §21)
+
+> "The conclusion should briefly sum up the argument. If you're writing as an advocate, you'll need to show clearly what the decision-maker should do and why." (LWPE §21)
+
+**יישום**: ההחלטה חייבת פתיחה (בלוקים א–ב), גוף (בלוקים ג–י), וסיכום (בלוקים יא–יב). הסיכום אינו "לאור כל האמור לעיל" אלא חזרה תמציתית ורעננה על עיקרי ההנמקה.
+
+### ב.4 סדר הסוגיות — החזק מתחיל
+
+**עיקרון**: אם ההיגיון מאפשר — פתח בטיעון החזק ביותר.
+
+> "If possible, lead with your strongest argument." (MYC §7)
+
+> "Why? Because first impressions are indelible. Because when the first taste is bad, one is not eager to drink further. Because judicial attention will be highest at the outset." (MYC §7)
+
+**חריג חשוב**: כשההיגיון דורש סדר אחר (למשל, שאלת סמכות לפני דיון בגוף)
+
+> "Sometimes, of course, the imperatives of logical exposition demand that you first discuss a point that is not your strongest." (MYC §7)
+
+**יישום**: בבלוק י, סדר הסוגיות צריך להיקבע לפי:
+1. שאלות סף (סמכות, מועד) — תמיד ראשונות
+2. הסוגיה המרכזית — מיד אחריהן
+3. סוגיות משניות — לפי חוזק ההנמקה
+
+### ב.5 כותרות אינפורמטיביות
+
+**עיקרון**: השתמש בכותרות שהן משפטים מלאים המודיעים לא רק על הנושא אלא גם על העמדה.
+
+> "Headings are most effective if they're full sentences announcing not just the topic but your position on the topic: Not 'I. Statute of Limitations' but 'I. The statute of limitations was tolled while the plaintiff suffered from amnesia.'" (MYC §40)
+
+> "State and federal judges routinely emphasize this point at judicial-writing seminars. They say that headings and subheadings help them keep their bearings, let them actually see the organization, and afford them mental rest stops." (LWPE §4)
+
+**יישום**: כל כותרת סעיף בהחלטה צריכה להודיע על המסקנה, לא רק על הנושא:
+- לא: "סוגיית הבנייה בקו אפס"
+- כן: "הבנייה בקו אפס אינה עולה בקנה אחד עם תוכנית המתאר"
+
+### ב.6 פסקת מפה (Roadmap Paragraph)
+
+**עיקרון**: ספק שלטי דרך ברורים — אמור מראש כמה נקודות יש ומה הן.
+
+> "If there are three issues you're going to discuss, state them explicitly on page one. If there are four advantages to your recommended course of action, say so when introducing the list. And be specific: don't say that there are 'several' advantages. If there are four, say so." (LWPE §27)
+
+**יישום**: בפתיחת בלוק י, כתוב: "הסוגיות שיש לדון בהן הן שלוש: (1) ...; (2) ...; (3) ...". זה מכין את הקורא ומאפשר לו לעקוב.
+
+### ב.7 חלק וכבוש — חלוקה לסעיפים
+
+**עיקרון**: חלק את המסמך לסעיפים ותתי-סעיפים עם כותרות.
+
+> "Once you've determined the necessary order of your document, you should divide it into discrete, recognizable parts... The more complex your project, the simpler and more overt its structure should be." (LWPE §4)
+
+**יישום**: ארכיטקטורת 12 הבלוקים כבר מספקת חלוקה מאקרו. בתוך בלוק י, יש לחלק לפי סוגיות עם כותרות וכותרות משנה.
+
+---
+
+## ג. טכניקות ברמת הפסקה (Legal Writing in Plain English)
+
+### ג.1 משפט נושא בפתיחת כל פסקה
+
+**עיקרון**: פתח כל פסקה במשפט שמודיע על הנושא המרכזי שלה.
+
+> "By stating the controlling idea, a topic sentence will lend unity to a paragraph... readers who are in a hurry will get your point efficiently." (LWPE §24)
+
+> "Good writers think of the paragraph—not the sentence—as the basic unit of thought." (LWPE §24)
+
+**כלל מעשי**: אל תפתח פסקה באזכור תיק ללא הקשר:
+
+> "Delaying the citation typically enables you to write a stronger topic sentence." (LWPE §24)
+
+**יישום**: במקום "בעע"מ 1234/05 נקבע ש..." — כתוב "ועדת ערר אינה מוסמכת להתערב בשיקול דעת מקצועי של מהנדס העיר. כך נפסק ב..."
+
+### ג.2 גשרים בין פסקאות (Echo Links)
+
+**עיקרון**: כל פתיחת פסקה חייבת לכלול מילת קישור או הד לפסקה הקודמת.
+
+> "Every paragraph opener should contain a transitional word or phrase to ease the reader's way from one paragraph to the next." (LWPE §25)
+
+**שלושה כלים**:
+
+> "Pointing words—that is, words like this, that, these, those, and the. Echo links—that is, words or phrases in which a previously mentioned idea reverberates. Explicit connectives—that is, words whose chief purpose is to supply transitions." (LWPE §25)
+
+**רשימת מילות קישור** (LWPE §25):
+- הוספה: גם, בנוסף, כמו כן, באופן דומה, יתרה מכך
+- דוגמה: למשל, כדוגמה, לענייננו
+- ניסוח מחדש: כלומר, במילים אחרות, בקצרה
+- סיבה: מכיוון ש-, שכן, בשל
+- תוצאה: לפיכך, אי לכך, כתוצאה מכך, משכך
+- ניגוד: אולם, ואולם, לעומת זאת, מנגד, עם זאת
+- ויתור: אמנם, נכון ש-, גם אם, אף ש-
+- חיזוק: אכן, למעשה, ללא ספק
+
+### ג.3 פסקה אחת — סוגיה אחת
+
+**עיקרון**: כל פסקה צריכה לעסוק בנקודה אחת בלבד.
+
+> "The topic sentence ensures that each paragraph has its own cohesive content. A good topic sentence centers the paragraph. It announces what the paragraph is about, while the other sentences play supporting roles." (LWPE §24)
+
+**יישום**: אם פסקה עוסקת גם בכלל המשפטי וגם ביישומו על המקרה וגם בהתמודדות עם טענה נגדית — חלק אותה.
+
+### ג.4 אורך פסקאות — קצר עדיף
+
+**עיקרון**: פסקאות קצרות מגבירות קריאות.
+
+> "Strive for an average paragraph of no more than 150 words—preferably far fewer—in three to eight sentences." (LWPE §26)
+
+> "As with sentence length, you need variety in paragraph length: some slender paragraphs and some fairly ample ones." (LWPE §26)
+
+**יישום**: בהחלטה, ממוצע של 100–150 מילים לפסקה. פסקה של משפט אחד מותרת ואפילו רצויה לעתים — למשל, כמשפט סיכום חד.
+
+---
+
+## ד. בהירות ברמת המשפט (Legal Writing in Plain English)
+
+### ד.1 בניין פעיל
+
+**עיקרון**: העדף בניין פעיל על פני סביל.
+
+> "In an active-voice construction, the subject does something (The court dismissed the appeal). In a passive-voice construction, something is done to the subject (The appeal was dismissed by the court)." (LWPE §8)
+
+**ארבעה יתרונות**:
+
+> "It usually requires fewer words. It better reflects a chronologically ordered sequence. It makes the reader's job easier because its syntax meets the English-speaker's expectation. It makes the writing more vigorous and lively." (LWPE §8)
+
+**יישום**: במקום "הבקשה נדחתה על ידי הוועדה המקומית" — "הוועדה המקומית דחתה את הבקשה". חריג: כשהפועל חשוב מהפועל ("ההיתר בוטל" — כשלא חשוב מי ביטל).
+
+### ד.2 קרבת נושא-נשוא-מושא
+
+**עיקרון**: שמור את הנושא, הפועל והמושא קרובים זה לזה — ובתחילת המשפט.
+
+> "Keep the subject, the verb, and the object together—toward the beginning of the sentence." (LWPE §7)
+
+> "The reason you should put the subject and verb at or near the beginning is that readers approach each sentence by looking for the action." (LWPE §7)
+
+**יישום**: במקום: "העורר, אשר רכש את הנכס בשנת 2018 ופנה לוועדה המקומית בבקשה להיתר בניה במרץ 2020, טוען כי..." — כתוב: "העורר טוען כי... [ההקשר העובדתי יובא בהמשך או בפסקה נפרדת]"
+
+### ד.3 אורך משפטים — ממוצע 20 מילים
+
+**עיקרון**: שמור על ממוצע של כ-20 מילים למשפט, עם גיוון.
+
+> "Keep your average sentence length to about 20 words." (LWPE §6)
+
+> "Not only do you want a short average; you also need variety. That is, you should have some 35-word sentences and some 3-word sentences, as well as many in between." (LWPE §6)
+
+**יישום**: הימנע ממשפטים של 60+ מילים שנפוצים בכתיבה משפטית ישראלית. שבור משפטים ארוכים. משפט קצר ומפתיע ("הערר נדחה") יכול להעניק אפקט חזק.
+
+### ד.4 הפוך שמות פעולה לפעלים
+
+**עיקרון**: הימנע משמות פעולה (-tion words / שמות פעולה בעברית) כשאפשר להשתמש בפועל.
+
+> "Turn -ion words into verbs when you can." (LWPE §14)
+
+> "Write that someone has violated the law, not that someone was in violation of the law; that something illustrates something else, not that it provides an illustration of it." (LWPE §14)
+
+**יישום**: במקום "ביצוע בחינה של" — "לבחון". במקום "קבלת החלטה" — "להחליט". במקום "מתן אישור" — "לאשר".
+
+### ד.5 השמט מילים מיותרות
+
+**עיקרון**: לחם נגד מילוי מילים. כל מילה שאינה עוזרת — מפריעה.
+
+> "Three good things happen when you combat verbosity: your readers read faster, your own clarity is enhanced, and your writing has greater impact." (LWPE §5)
+
+> "Every word that is not a help is a hindrance because it distracts. A judge who realizes that a brief is wordy will skim it; one who finds a brief terse and concise will read every word." (MYC §35)
+
+**ביטויים מנופחים ותחליפיהם** (LWPE §15):
+| מנופח | פשוט |
+|---|---|
+| במידה ו- | אם |
+| בנסיבות אלה | לכן |
+| לאור העובדה ש- | מכיוון ש- |
+| בשלב הנוכחי | עתה |
+| על מנת ש- | כדי ש- |
+| בסמוך לאחר | אחרי |
+| לא יאוחר מ- | עד |
+
+### ד.6 סיים משפטים בחוזקה
+
+**עיקרון**: המילה האחרונה במשפט היא החשובה ביותר.
+
+> "Professional writers know that a sentence's final word, whatever it may be, should have a special kick." (LWPE §11)
+
+**יישום**: אל תסיים משפט בתאריך או בהפניה אלא אם הם חשובים. במקום "הבקשה נדחתה ביום 15.3.2024" — "ביום 15.3.2024 נדחתה הבקשה". או אם התאריך לא חשוב — "הוועדה המקומית דחתה את הבקשה".
+
+### ד.7 הימנע מז'רגון מיותר
+
+**עיקרון**: אם יש מילה רגילה שאומרת אותו דבר — השתמש בה.
+
+> "Learn to detest simplifiable jargon." (LWPE §12)
+
+> "Legalisms should become part of your reading vocabulary, not part of your writing vocabulary." (LWPE §12)
+
+**יישום**: במקום "הננו להורות" — "אנו מורים". במקום "דנא" — "כאן". במקום "המבקש דנן" — "העורר". במקום "כמפורט לעיל" — "כפי שצוין".
+
+### ד.8 הימנע מכפילויות ושלישיות
+
+**עיקרון**: אם מילה אחת מספיקה, אל תשתמש בשתיים או שלוש.
+
+> "The idea isn't to say something in as many ways as you can, but to say it as well as you can." (LWPE §16)
+
+**יישום**: במקום "לבטל ולהפקיע" — "לבטל". במקום "לפרש ולהבהיר" — "לפרש". כל מילה נוספת מחייבת את הקורא לחפש הבדל.
+
+### ד.9 הקפד על הקבלה דקדוקית
+
+**עיקרון**: רעיונות מקבילים דורשים מבנה דקדוקי מקביל.
+
+> "Just as you should put related words together in ways that match the reader's natural expectations, you should also state related ideas in similar grammatical form." (LWPE §9)
+
+**יישום**: ברשימות תנאים או נימוקים, שמור על מבנה אחיד. אם התנאי הראשון מתחיל בשם עצם — כולם יתחילו בשם עצם. אם הראשון פועל — כולם פועל.
+
+### ד.10 הימנע מכפל שלילות
+
+**עיקרון**: אם אפשר לנסח חיובית — עשה כן.
+
+> "When you can recast a negative statement as a positive one without changing the meaning, do it. You'll save readers from needless mental exertion." (LWPE §10)
+
+**יישום**: במקום "לא ניתן שלא להתעלם מ-" — ניסוח חיובי ברור. במקום "אין יסוד לטענה כי אין סמכות" — "לוועדה יש סמכות".
+
+---
+
+## ה. התמודדות עם טיעוני צד שכנגד (Making Your Case)
+
+### ה.1 הכר את הצד השני — "Steel-manning"
+
+**עיקרון**: אל תחליף את טענת היריב בטענת קש שקל להפריך.
+
+> "Don't delude yourself. Try to discern the real argument that an intelligent opponent would make, and don't replace it with a straw man that you can easily dispatch." (MYC §4)
+
+**יישום**: בבלוק י, כשמתמודדים עם טענות הצד שהפסיד — הצג את טענותיו בצורה הוגנת וחזקה לפני שדוחה אותן. זה מחזק את אמינות ההחלטה.
+
+### ה.2 ויתור מפגין על שטח בלתי-ניתן להגנה
+
+**עיקרון**: הודה בנקודות שנגדך — בגלוי ובנדיבות.
+
+> "Don't try to defend the indefensible." (MYC §11)
+
+> "Openly acknowledge the ones that are against you. In fact... raise them candidly and explain why they aren't dispositive." (MYC §11)
+
+> "A weak argument does more than merely dilute your brief. It speaks poorly of your judgment and thus reduces confidence in your other points. As the saying goes, it is like the 13th stroke of a clock: not only wrong in itself, but casting doubt on all that preceded it." (MYC §11)
+
+**יישום**: כשיש נקודה שפועלת לטובת העורר שהערר שלו נדחה — הכר בה מפורשות: "אמנם צודק העורר כי המבנה הסמוך חורג מקו הבניין, אולם עובדה זו אינה מקנה לו זכות לחרוג אף הוא, שכן..."
+
+### ה.3 הפרכה מקדימה — באמצע, לא בהתחלה ולא בסוף
+
+**עיקרון**: טפל בטענות נגדיות באמצע הדיון — לא בפתיחה (שמציבה אותך בעמדת הגנה) ולא בסיום (שמשאירה את המוקד על טענות הצד השני).
+
+> "For the first to argue, refutation belongs in the middle. Aristotle observed that 'in court one must begin by giving one's own proofs, and then meet those of the opposition by dissolving them and tearing them up before they are made.'" (MYC §8)
+
+**יישום בכתיבת החלטה**: מבנה מומלץ לכל סוגיה (מבוסס על LWPE §30):
+1. הנחה משפטית (הכלל)
+2. הנחה עובדתית (העובדות)
+3. מסקנה ראשונית
+4. **טענה נגדית אפשרית + תשובה**
+5. **טענה נגדית נוספת + תשובה**
+6. נקודה תומכת נוספת
+7. משפט סיכום חד
+
+> "An argument using this structure makes for convincing reading. And it's hard to rebut." (LWPE §30)
+
+### ה.4 תפוס קרקע ניתנת להגנה
+
+**עיקרון**: בחר את העמדה הקלה ביותר להגנה.
+
+> "Select the most easily defensible position that favors your client. Don't assume more of a burden than you must." (MYC §10)
+
+**יישום**: כשיש מספר נימוקים אפשריים לתוצאה, בחר את החזק ביותר ופתח בו. אל תנסה להגן על כל נימוק אפשרי.
+
+### ה.5 היה ישר — גם כשזה לא נוח
+
+**עיקרון**: הכר בנקודות חולשה. שכנע באמצעות הגינות, לא באמצעות הסתרה.
+
+> "In dealing with counterarguments, be sure that you don't set out the opponent's points at great length before supplying an answer. Your undercut needs to be swift and immediate." (LWPE §30)
+
+> "If you want to write convincingly, you should habitually ask yourself why the reader might arrive at a different conclusion from the one you're urging. Think of the reader's best objections to your point of view, and then answer those objections directly." (LWPE §30)
+
+**יישום**: ההחלטה חייבת לעבור את "מבחן בית המשפט" — שופט בביקורת שיפוטית צריך לראות שכל טענה רצינית קיבלה מענה.
+
+---
+
+## ו. ציטוטים והפניות (משני הספרים)
+
+### ו.1 צטט במשורה
+
+**עיקרון**: ציטוטים ישירים צריכים להיות נדירים ומדויקים.
+
+> "Quote authorities more sparingly still." (MYC §50)
+
+> "A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true." (MYC §50)
+
+> "After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words." (MYC §50)
+
+**יישום**: צטט ישירות רק כשהמילים המדויקות חשובות — הוראת תוכנית, קביעה מפתח בפסק דין. את השאר — פרפרז.
+
+### ו.2 הימנע מציטוטים ארוכים בלוקים
+
+**עיקרון**: ציטוט ארוך מוכנס (block quote) מזמין דילוג.
+
+> "Be especially loath to use a lengthy, indented quotation. It invites skipping. In fact, many block quotes have probably never been read by anyone." (MYC §50)
+
+> "Never let your point be made only in the indented quotation. State the point, and then support it with the quotation." (MYC §50)
+
+**יישום**: אם חייבים ציטוט ארוך (למשל, הוראת תוכנית) — הקדם לו משפט שמסכם את עיקרו, ולאחריו הוסף ניתוח. אל תניח שהקורא יקרא את הציטוט.
+
+### ו.3 טכניקת הסנדוויץ' — הקדמה → ציטוט → ניתוח
+
+**עיקרון**: שלב ציטוטים בנרטיב — עם הקדמה ייעודית ומסקנה.
+
+> "Weave quotations deftly into your narrative." (LWPE §29)
+
+> "Say something specific. Assert something. Then let the quotation support what you've said." (LWPE §29)
+
+**הקדמות גרועות** (LWPE §29):
+- "בית המשפט קבע כדלקמן:"
+- "החוק קובע בזו הלשון:"
+
+**הקדמות טובות**:
+- "בית המשפט פסק כי אין לקבל בקשות שהוגשו באיחור ללא טעם מיוחד:"
+- "התוכנית מגבילה במפורש את השימוש למגורים בלבד:"
+
+### ו.4 הפניות — תמציתיות, לא רשימות
+
+**עיקרון**: הימנע מ-"string citations" — רשימות ארוכות של תקדימים.
+
+> "Brevity means abandoning string cites with more than three cases." (MYC §36, חלק הArgument)
+
+> "Obvious points can be made by citing a single governing case, a statute, or even a well-known treatise." (MYC §36)
+
+**יישום**: לנקודה שאינה שנויה במחלוקת — מספיק מקור אחד. לנקודה מרכזית — דון בתקדים מוביל אחד לעומק, ואחריו "ראו גם" עם 1–2 מקורות נוספים.
+
+### ו.5 תאר סמכויות בדיוק קפדני
+
+**עיקרון**: אל תעוות תקדימים. אל תטען שפסק דין אומר יותר ממה שהוא באמת אומר.
+
+> "Persuasive briefing induces the court to draw favorable conclusions from accurate descriptions of your authorities. It never distorts cases to fit the facts." (MYC §48)
+
+> "When even one of your citations fails to live up to your introductory signal... all the rest of your citations inevitably become suspect." (MYC §48)
+
+**יישום**: כשמצטטים פסק דין — ציין אם מדובר בהלכה מחייבת, אמרת אגב, או פסיקת ערכאה שאינה מחייבת. אם התקדים שונה מהמקרה הנדון — אמור זאת.
+
+### ו.6 הזז הפניות ביבליוגרפיות להערות שוליים
+
+**עיקרון**: הפניות (מספרי כרכים ועמודים) צריכות להיות בהערות שוליים, לא בגוף הטקסט.
+
+> "Put citations—and generally only citations—in footnotes. And write in such a way that no reader would ever have to look at your footnotes to know what important authorities you're relying on." (LWPE §28)
+
+> "Citations belong in a footnote: even one full citation... breaks the thought; two, three, or more in one massive paragraph are an abomination." (LWPE §28, ציטוט השופט Wisdom)
+
+**יישום**: שלב את שם בית המשפט ושם התיק בגוף הטקסט ("כפי שקבע בית המשפט העליון בפרשת אליאב"), והעבר את ההפניה הביבליוגרפית להערת שוליים.
+
+---
+
+## ז. טכניקות שכנוע (Making Your Case)
+
+### ז.1 פנה לצדק ולהיגיון בריא
+
+**עיקרון**: הראה שהתוצאה לא רק נכונה משפטית אלא גם צודקת.
+
+> "Appeal not just to rules but to justice and common sense." (MYC §15)
+
+> "You need to give the court a reason you should win that the judge could explain in a sentence or two to a nonlawyer friend." (MYC §15)
+
+**יישום**: בסיום הדיון בכל סוגיה, הוסף משפט שמסביר מדוע התוצאה הגיונית ומידתית — לא רק מדוע היא נכונה טכנית.
+
+### ז.2 שלוט בשדה הסמנטי
+
+**עיקרון**: המילים שבהן אתה משתמש מעצבות את תפיסת הקורא.
+
+> "Labels are important... you should think through the terminology of your case. Use names and words that favor your side of the argument." (MYC §20)
+
+**יישום**: בחר מונחים בקפידה. "סטייה מתוכנית" נשמע אחרת מ"גמישות תכנונית". "מבנה ותיק" נשמע אחרת מ"מבנה ללא היתר". המונחים צריכים לשקף את המסקנה.
+
+### ז.3 סיים בחוזקה — אמור מפורשות מה התוצאה
+
+**עיקרון**: הסיום חייב להיות ברור, חד, ולא פורמלי.
+
+> "Persuasive argument neither comes to an abrupt halt nor trails off in a grab-bag of minor points." (MYC §21)
+
+> "The trite phrase 'for all the foregoing reasons' is hopelessly feeble. Say something forceful and vivid to sum up your points." (MYC §21)
+
+**יישום**: בלוק יא (הכרעה) צריך לחזור בתמציתיות על עיקר ההנמקה ואז לקבוע את התוצאה בצורה חד-משמעית. לא "לאור כל האמור לעיל, הערר נדחה" — אלא סיכום של 2–3 משפטים שמסבירים למה, ואז "הערר נדחה".
+
+### ז.4 לעולם אל תגזים
+
+**עיקרון**: דיוק קפדני חשוב יותר מהגזמה.
+
+> "Never overstate your case. Be scrupulously accurate." (MYC §6)
+
+> "Scrupulous accuracy consists not merely in never making a statement you know to be incorrect (that is mere honesty), but also in never making a statement you are not certain is correct." (MYC §6)
+
+**יישום להחלטות**: אל תכתוב "הפסיקה חד-משמעית" אלא אם היא באמת חד-משמעית. אל תכתוב "אין כל ספק" אלא אם באמת אין. שפה מדויקת מחזקת אמינות; הגזמה מערערת אותה.
+
+### ז.5 מרכז את האש — בחר את הטיעונים הטובים ביותר
+
+**עיקרון**: בחר 2–3 נימוקים מרכזיים ופתח אותם לעומק. אל תפזר.
+
+> "Pick your best independent reasons why you should prevail—preferably no more than three—and develop them fully." (MYC §12)
+
+> "Scattershot argument is ineffective. It gives the impression of weakness and desperation, and it insults the intelligence of the court." (MYC §12)
+
+> "We must not always burden the judge with all the arguments we have discovered, since by doing so we shall at once bore him and render him less inclined to believe us." (MYC §12, ציטוט קווינטיליאן)
+
+**יישום**: בהחלטה, מרכז את ההנמקה ב-2–3 נימוקים חזקים. אם יש 7 טענות של העורר — אין צורך להתייחס לכל אחת באריכות. קבץ טענות חלשות, ותן מענה עמוק לעיקריות.
+
+### ז.6 הבהר מושגים מופשטים באמצעות דוגמאות
+
+**עיקרון**: דוגמה מבהירה יותר מכל הסבר תיאורטי.
+
+> "Nothing clarifies [abstract concepts'] meaning as well as examples." (MYC §42)
+
+**יישום**: כשהדיון נוגע לעקרונות תכנוניים מופשטים (כמו "אופי הסביבה" או "שיקולים מהותיים"), תן דוגמה קונקרטית מהמקרה הנדון.
+
+### ז.7 בהירות מעל לכל
+
+**עיקרון**: בהירות היא הערך העליון. כל ערך סגנוני אחר כפוף לה.
+
+> "In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sacrificed if they detract from clarity." (MYC §39)
+
+> "This means, for example, that the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms." (MYC §39)
+
+**יישום**: אם השתמשת ב"היתר בנייה" — אל תעבור ל"רישיון בנייה" בפסקה הבאה כדי להימנע מחזרה. עקביות מינוחית חשובה יותר מגיוון לשוני.
+
+### ז.8 עשה את הכתיבה מעניינת
+
+**עיקרון**: כתיבה ברורה ותמציתית לא חייבת להיות משעממת.
+
+> "To say that your writing must be clear and brief is not to say that it must be dull." (MYC §43)
+
+> "Three simple ways to add interest to your writing are to enliven your word choices, to mix up your sentence structures, and to vary your sentence lengths." (MYC §43)
+
+> "An occasional arrestingly short sentence can deliver real punch." (MYC §43)
+
+**יישום**: גיוון אורך משפטים (משפטים קצרים וחדים בין משפטים ארוכים יותר); שימוש במטאפורה מדי פעם; סיפור עובדתי שזורם כרונולוגית.
+
+### ז.9 השתמש בשמות, לא בתוויות
+
+**עיקרון**: קרא לצדדים בשמם, לא בתוויות משפטיות.
+
+> "Legal writers have traditionally spoiled their stories by calling people 'Plaintiff' and 'Defendant,' 'Appellant' and 'Appellee'... call people McInerny or Walker or Zook." (LWPE §17)
+
+> "Refer to the bank or the company or the university... Then make sure your story line works." (LWPE §17)
+
+**יישום**: בהחלטה, כתוב "משפחת כהן" או "העוררים" (ולא "המערער" או "העורר 1 והעורר 2"). כשאפשר — שם המשפחה או שם הפרויקט.
+
+### ז.10 סדר כרונולוגי לעובדות
+
+**עיקרון**: ספר את העובדות בסדר כרונולוגי. הימנע מקפיצות בזמן.
+
+> "Order your material in a logical sequence. Use chronology when presenting facts." (LWPE §3)
+
+> "Disruptions in the story line frequently result from opening the narrative with a statement of the immediately preceding steps in litigation." (LWPE §3)
+
+**יישום**: בלוק ו (רקע עובדתי) חייב לעקוב אחר ציר הזמן. אל תפתח בהחלטת הוועדה המקומית ואז תחזור אחורה לתיאור הנכס. התחל מהנכס, המשך לבקשה, דרך ההחלטה, עד הגשת הערר.
+
+### ז.11 הימנע מתאריכים מדויקים מיותרים
+
+**עיקרון**: רוב התאריכים המדויקים מסיחים את דעת הקורא.
+
+> "Never begin statement after statement with dates. A few dates will be important, but for the others simply say 'The next morning...,' 'That afternoon...,' etc." (MYC §36)
+
+**דוגמה מ-LWPE §23**: במקום "ביום 12.2.1995 בשעה 15:00 בערך, במהלך מקלחת, התובעת נפלה..." — "בפברואר 1995, במהלך מקלחת, גב' ווקר נפלה..."
+
+**יישום**: בבלוק ו, ציין תאריכים מדויקים רק כשהם משמעותיים (מועד הגשה, תוקף תוכנית). אחרת — "כחודש לאחר מכן", "בתחילת 2023".
+
+### ז.12 הכל צריך להישמע טבעי
+
+**עיקרון**: אם לא היית אומר את זה בעל פה — אל תכתוב את זה.
+
+> "Here's a good test of naturalness: if you wouldn't say it, then don't write it." (LWPE §20)
+
+> "Generally, the best approach in writing is to be relaxed and natural. That bespeaks confidence." (LWPE §20)
+
+**יישום**: קרא את הטיוטה בקול רם. אם מילה או ביטוי גורמים לך להיתקע — החלף אותם.
+
+---
+
+## סיכום: 10 עקרונות העל
+
+1. **חשוב סילוגיסטית**: כל נימוק = כלל + עובדות + מסקנה
+2. **פתח בתמצית**: הקורא צריך לדעת מה התוצאה מהעמוד הראשון
+3. **נסח בבהירות**: ממוצע 20 מילים למשפט, בניין פעיל, נושא-נשוא קרובים
+4. **ארגן בהיגיון**: כותרות אינפורמטיביות, פסקת מפה, סדר מהחזק לחלש
+5. **התמודד עם טענות נגדיות**: הכר בהן, הצג אותן בהגינות, הפרך באמצע
+6. **צטט במשורה**: פרפרז עדיף; ציטוט רק כשהמילים המדויקות חשובות
+7. **מרכז את ההנמקה**: 2–3 נימוקים חזקים, לא 7 חלשים
+8. **ספר סיפור**: עובדות בסדר כרונולוגי, בשמות אמיתיים, ללא תאריכים מיותרים
+9. **סיים בחוזקה**: סיכום רענן של ההנמקה, ואז תוצאה חד-משמעית
+10. **לעולם אל תגזים**: דיוק קפדני בונה אמינות; הגזמה הורסת אותה
diff --git a/docs/legal-decision-lessons.md b/docs/legal-decision-lessons.md
index 7553392..2af94a6 100644
--- a/docs/legal-decision-lessons.md
+++ b/docs/legal-decision-lessons.md
@@ -202,3 +202,53 @@ Licensing appeals are not homogeneous — the discussion structure varies signif
 - Categories: missing_content, wrong_tone, wrong_structure, factual_error, style, other
 - MCP tools + UI page for recording and reviewing feedback
 - First entry: Kiryat Yearim — missing planning discussion (2026-04-12)
+
+---
+
+## Lessons from External Expertise Research (April 2026)
+
+### Source
+- Federal Judicial Center, *Judicial Writing Manual* (1991, 2nd ed. 2020)
+- Bryan Garner, *Legal Writing in Plain English* (2001)
+- Scalia & Garner, *Making Your Case: The Art of Persuading Judges* (2008)
+- Richard Posner, *How Judges Think* (2008)
+- Full texts stored in: `docs/sources/`
+
+### 17. Methodology Document Created — Separating "How to Think" from "How to Write"
+
+**Problem:** The system knew Dafna's STYLE (SKILL.md) and WHAT TOPICS to cover (content checklists), but had no formal methodology for HOW TO REASON through a decision — the analytical stages, when to balance, how to structure arguments, how to handle counterarguments.
+
+**Fix:** Created `docs/decision-methodology.md` — a standalone analytical methodology document based on synthesis of all four external sources. 3,400 words, 12 sections, 10 guiding principles. Covers: pre-analysis, threshold questions, issue ordering, syllogistic structure (CREAC), balancing/proportionality, claims handling (steel-man, bundling), quotation technique (sandwich), factual findings vs. legal conclusions, disposition, writing techniques, analogy/precedent, editing checklist.
+
+**Key principle:** Methodology is UNIVERSAL — it teaches how to think about any quasi-judicial decision. It does not contain case-specific content (parking, building lines, etc.). Case-specific content stays in the content checklists.
+
+**Applied to:**
+- `docs/decision-methodology.md` — new document
+- `lessons.py` — new function `get_methodology_summary()` injected into block-yod prompt
+- `block_writer.py` — new `{methodology_guidance}` placeholder in block-yod prompt
+- `.claude/agents/legal-writer.md` — restructured block-yod workflow to follow methodology stages
+- `.claude/agents/legal-qa.md` — new check #7 (methodology compliance)
+
+### 18. "Answer All Claims" Made Flexible
+
+**Problem:** The block-yod prompt hardcoded "answer every claim individually" and the QA check enforced it. But Dafna sometimes bundles weak claims, skips irrelevant ones, and focuses on what matters.
+
+**Fix:**
+- Block-yod prompt changed from "חובה לענות על כל אחת" to flexible handling: address substantive claims; bundle [bundle]; skip [skip]
+- Chair can mark claims in `chair_directions` as bundle or skip
+- QA check #3 updated to respect these markings
+- Methodology teaches WHEN to address individually vs. bundle vs. skip (methodology §ו)
+
+### 19. Source Library Established
+
+Downloaded and converted to text 5 authoritative sources for the methodology:
+- `docs/sources/fjc-judicial-writing-manual-1991.txt` (13,567 words)
+- `docs/sources/fjc-judicial-writing-manual-2nd-ed-2020.txt` (15,912 words)
+- `docs/sources/garner-legal-writing-plain-english.txt` (97,475 words)
+- `docs/sources/posner-how-judges-think.txt` (156,789 words)
+- `docs/sources/scalia-garner-making-your-case.txt` (54,683 words)
+Total: ~340,000 words of source material.
+
+Intermediate extraction documents also saved:
+- `docs/fjc-principles-extraction.md` — 38 principles from FJC
+- `docs/garner-methodology-extraction.md` — ~50 principles from Garner/Scalia
diff --git a/docs/sources/fjc-judicial-writing-manual-1991.txt b/docs/sources/fjc-judicial-writing-manual-1991.txt
new file mode 100644
index 0000000..d12a14b
--- /dev/null
+++ b/docs/sources/fjc-judicial-writing-manual-1991.txt
@@ -0,0 +1,1568 @@
+THE FEDERAL JUDICIAL CENTER
+Board
+
+The Chief Justice of the United States
+Chairman
+Judge J. Clifford Wallace
+United States Court of Appeals
+for the Ninth Circuit
+
+Judge David D. Dowd, Jr.
+United States District Court
+Northern District of Ohio
+
+Judge Monroe G. McKay
+United States Court of Appeals
+for the Tenth Circuit
+
+Judge Diana E. Murphy
+United States District Court
+District of Minnesota
+
+Chief Judge William C. O'Kelley
+United States District Court
+Northern District of Georgia
+
+Judge Robert E. Ginsberg
+United States Bankruptcy Court
+Northern District of Illinois
+
+L. Ralph Mecham
+Director of the Administrative Office
+of the United States Courts
+Director
+
+Judge William W Schwarzer
+Deputy Director
+
+Charles W. Nihan
+Division Directors
+
+William B. Eldridge
+Research
+
+Sylvan A. Sobel
+Publications
+
+Daniel L. Skoler
+Continuing Education &
+Training
+
+[Vacant]
+Innovations & Systems
+Development
+
+Russell R. Wheeler
+Special Educational Services
+
+Judicial
+Writing
+Manual
+
+Board of Editors for the Judicial Writing Manual
+Alvin B. Rubin, Chair
+U.S. Circuit Judge
+Patricia M. Wald
+Chief U.S. Circuit Judge
+Wilfred Feinberg
+U.S. Circuit Judge
+John C. Godbold
+U.S. Circuit Judge
+Director Emeritus, Federal Judicial Center
+J ames Dickson Phillips, Jr.
+U.S. Circuit Judge
+J. Clifford Wallace
+U.S. Circuit Judge
+Louis H. Pollak
+U.S. District Judge
+
+A. Leo Levin
+Professor, University of Pennsylvania
+Director Emeritus, Federal Judicial Center
+Paul J. Mishkin
+Professor, University of California, Berkeley
+StephenJ. Wermiel
+The Wall Street}ournal
+William W Schwarzer
+U.S. District Judge
+Director, Federal Judicial Center
+
+Sylvan A. Sobel, Editor
+Director, Publications Division
+Federal Judicial Centf'T
+
+Judicial Writing Manual
+Federal Judicial Center
+
+1991
+
+This Judicial Writing Manual has been produced under the auspices of the Federal
+Judicial Center. The analyses and recommendations are those of the manual's board
+of editors. On matters of policy, the Center speaks only through its statutorily,
+created Board.
+
+fourth printing
+
+Contents
+Foreword .................................................................................. vii
+Acknowledgments ........................................................................ ix
+Introduction ....................................................................................................... 1
+Determining the Scope of the Opinion ............................................................. 3
+Factors to consider ........................................................................................ 4
+Preparing to Write .. ........................................................................................... 9
+Outlines ......................................................................................................... 10
+Using law clerks ............................................................................................ 10
+Materials to review............................. ..... ...... ... .................... .......... ............... 11
+Organizing and Writing the Opinion ................................................................ 13
+Structure ........................................................................................................ 13
+Introduction .................................................................................................. 13
+Statement of issues ........................................................................................ 14
+Facts ............................................................................................................. 15
+Discussion of legal principles ........................................................................ 16
+Concluding paragraph ................................................................................... 19
+Summary disposition ..................................................................................... 19
+Issuing opinions orally from the bench ......................................................... 20
+Language, Style, and Self-Editing ....................................................................... 21
+Characteristics of bad writing ....... ............................ ..... .............. ............. .... 21
+Guides for good writing ................................................................................. 22
+Footnotes and citations ................................................................................. 24
+Edit carefully ................................................................................................. 24
+Dissents, Concurrences, and Writing with Other Judges .................................. 27
+Joint opinion writing .................................................................................... 27
+Commenting on a draft prepared by another judge ...................................... 28
+Dissenting opinions ....................................................................................... 29
+Concurrences ................................................................................................ 30
+Reading About Writing ..................................................................................... 31
+Books .............................................................................................................. 32
+Articles ..................................................................................................... ,.... 32
+. Other ............................................................................................................. 32
+Appendix A: Sample Memorandum Opinion .................................................... 33
+Appendix B: Sample Summary Order ................................................................ 35
+Appendix C: Sample Standards of Review ......................................................... 36
+Appendix D: Sample Concluding Paragraphs .................................................... 38
+Appendix E: Sample Brief Dissenting Opinions ................................................. 39
+Appendix F: Sample Brief Concurring Opinions ............................................... 41
+
+v
+
+Foreword
+The link between courts and the public is the written word. With rare exceptions,
+it is through judicial opinions that courts communicate with litigants, lawyers,
+other courts, and the community. Whatever the court's statutory and constitutional
+status, the written word, in the end, is the source and the measure of the court's
+authority.
+It is therefore not enough that a decision be correct - it must also be fair and
+reasonable and readily understood. The burden of the judicial opinion is to explain
+and to persuade and to satisfy the world that the decision is principled and sound.
+What the court says, and how it says it, is as important as what the court decides.
+It is important to the reader. But it is also important to the author because in the
+writing lies the test of the thinking that underlies it. "Good writing," Ambrose
+Bierce said, "essentially is clear thinking made visible." A. Bierce, Write It Right
+6 (rev. ed. 1986).
+To serve the cause of good opinion writing, the Federal Judicial Center has
+prepared this manual. It is not held out as an authoritative pronouncement on good
+writing, a subject on which the literature abounds. Rather it distills the experience
+and reflects the views of a group of experienced judges, vetted by a distinguished
+board of editors. No one of them would approach the task of writing an opinion, or
+describe the process, precisely as any of the others would. Yet, though this is a highly
+personal endeavor, some generally accepted principles of good opinion writing
+emerge and they are the subject of this manual.
+We hope that judges and their law clerks will find this manual helpful and that
+it will advance the cause for which it has been prepared.
+
+G~tJ~
+William W Schwarzer
+
+vii
+
+Acknowledgments
+The Center and the board of editors are grateful to the following judges who
+participated in telephone interviews to discuss their experience with and views on
+judicial writing. Their thoughtful responses contributed substantially to this
+manual.
+Stephen Breyer, Chief US. Circuit Judge
+Gerald B. Tjoflat, Chief U.S. Circuit Judge
+Patricia M. Wald, Chief US. Circuit Judge
+Ruggero J. Aldisert, US. Circuit Judge
+Richard S. Arnold, US. Circuit Judge
+Frank M. Coffin, U.S. Circuit Judge
+Wilfred Feinberg, US. Circuit Judge
+John J. Gibbons, US. Circuit Judge, ret.
+Ruth Bader Ginsburg, US. Circuit Judge
+Frank M. Johnson, Jr., US. Circuit Judge
+James K. Logan, US. Circuit Judge
+Monroe G. McKay, US. Circuit Judge
+James Dickson Phillips, Jr., US. Circuit Judge
+Richard A. Posner, US. Circuit Judge
+Joseph T. Sneed, US. Circuit Judge
+J. Clifford Wallace, US. Circuit Judge
+John Minor Wisdom, US. Circuit Judge
+Robert E. Keeton, U.S. District Judge
+Prentice H. Marshall, US. District Judge
+Louis H. Pollak, US. District Judge
+William W Schwarzer, US. District Judge
+Jack B. Weinstein, US. District Judge
+Lloyd King, Chief US. Bankruptcy Judge
+Robert E. Ginsberg, US. Bankruptcy Judge
+Weare also grateful to Carol Krafka of the Research Division staff, who conducted
+the interviews and edited the transcripts prepared by members of the Center's
+Research and General Administration staff, and to David Marshall and Scott
+Filderman for their thorough editing.
+
+ix
+
+-------------
+
+Introduction
+Judicial opinions serve three functions. First, written opinions commu~
+nicate 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 prepara~
+tion 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.
+The opinion should fairly, clearly, and accurately state the significant
+facts and relevant rules of law and demonstrate by its analysis the reason~
+ableness of its conclusions. Misstating significant facts or authorities is a
+mark of carelessness or worse and undermines the opinion's authority and
+integrity. Unclear or ambiguous writing reflects the author's lack of clear
+thinking and defeats the opinion's purpose.
+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 consider~
+ations that arise at each stage of the writing and editing process; recom~
+mending 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.
+This manual should also help experienced judges take a fresh look at
+their approaches to writing and their styles. Professor Robert Leflar has
+written:
+Pride of authorship is by no means an unmitigated evil. ... [T]his pride can
+drive a man to hard work and with meticulous effort. The poorest opinions
+are apt to be written by judges who take no pride in them, who regard the
+preparation of them as mere chores. Pride in work well done is a proper
+
+incident of good craftsmanship in any field of work, including law. An
+opinion in which the author takes no pride is not likely to be much good.
+
+Leflar, Some Observations Conceming]udicial Opinions, 61 Colum. L. Rev.
+810, 813 (1961). The pride judges take in their written work should
+encourage self-evaluation.
+This manual is not intended to proclaim the right way of writing an
+opinion. Anyone undertaking to announce authoritative rules of good
+writing invites debate and comparison. As one judge said: "I have one
+overarching rule. That is, don't have any such rules." Indeed, in a leading
+text on g90d writing, E. B. White acknowledged that "[sltyle rules of this
+sort are, of course, somewhat a matter of individual preference, and even the
+established rules of grammar are open to challenge." W. Strunk & E. B.
+White, The Elements of Style xv (3d ed. 1979).
+Instead, the purpose of the manual is to stimulate judges (whether they
+agree or disagree with what is said here - and there is room for disagreement) to think as systematically about writing their opinions as they do
+about deciding their cases. Judges should ask themselves: Am I writing this
+way because this is how I've always done it, or is there a better way? Is there
+a reason for organizing the opinion this way? For including these particular
+facts? For discussing this issue at length? For citing this case? Is this sentence
+clear? Are all the words in it necessary?
+In the following chapters, the manual takes the reader through the
+opinion-writing process. Chapter 2 suggests some considerations to guide
+judges in deciding whether to write a "full-dress" opinion, a memorandum,
+or an unpublished opinion, and when to write briefly and when not.
+Chapter 3 discusses steps a judge should take before starting to write,
+including preparing an outline and how to use law clerks. Chapter 4
+discusses the organization, structure, and content of an opinion. Chapter 5
+offers suggestions on language, style, and editing for brevity. Chapter 6
+presents considerations relevant to co-writing an opinion and commenting
+on the opinions of other members of the court and to dissenting and
+concurring opinions. Chapter 7 contains a bibliography of books and
+articles that may be useful to those who wish to read more about judicial
+writing. Appendices provide examples of some of the points discussed in the
+manual.
+
+2
+
+Determining the Scope
+of the Opinion
+A judicial opinion informs parties of the outcome of their case and
+articulates the legal principles on which the opinion is based in order to
+guide the bench, the bar, academia, and the public. Because written
+decisions serve both case-deciding and law -making functions, they range in
+form from one-sentence, unpublished summary orders to formally structured, citation-laden full-dress opinions. An opinion that is intended only
+to inform the parties of the outcome of their dispute should not be as
+elaborate as one intended to serve as precedent. Before beginning to write,
+judges should decide what purpose the opinion will serve and how to write
+it to suit that purpose.
+This manual will refer to three types of written decisions: full-dress
+opinions, memorandum opinions, and summary orders.
+Full-dress opinions are those that require structured discussion of the
+facts, legal principles, and governing authorities. The significance or
+number of the issues presented, the novelty of the question, and the
+complexity of the facts are among the factors that determine whether an
+opinion requires full-dress treatment.
+Memorandum opinions are appropriate where the decision does not
+require a comprehensive, structured explanation but still needs some
+explanation of the rationale. They are generally brief and informal and may
+or may not be published. Per curiam opinions are generally included in this
+category. Appendix A contains an example of a memorandum opinion.
+Summary orders simply state the disposition of the case, sometimes with
+a brief statement of findings and conclusions, but often with little or no
+explanation. Summary orders are usually unpublished. Appendix B contains an example of a summary order.
+The following sections discuss some of the factors a judge should
+consider in determining what kind of opinion to write.
+
+3
+
+Factors to consider
+Three factors influence the scope and style of an opinion: the complexity of the facts and nature of the issues, the intended audience, and whether
+the opinion will be published. Although the manual treats these factors
+separately, they are interrelated.
+
+Facts and issues
+The complexity of the facts and the nature of the legal issues are the
+principal factors determining the kind of opinion required. If the precedents
+are clear and the material facts are not complicated, the scope of the opinion
+will be limited. As the controlling law becomes more uncertain or the
+material facts more complex, the need for exposition and analysis to explain
+the reasons for the court's decision increases. Some cases that present
+complex fact patterns may require lengthy discussion of the facts even
+though the applicable law may be simple. Others raising novel legal issues
+may require extended analysis of law and policy.
+The scope of an opinion will be influenced by how well developed the
+law is in the area. Judges should consider whether the issue has previously
+been decided authoritatively and whether another opinion would aid in the
+development or explanation of the law. They should ask whether their
+opinion would say something that has not been said before. If the subject
+matter has been thoroughly aired in prior opinions, this one need not trace
+the origins of the rule and elaborate on its interpretation. In some cases, it
+is sufficient to affirm for the reasons stated by the court below. If the decision
+merely closes a gap in existing law, little more is needed than an explanation
+of the applicable principles and the reasons for the court's choice among
+them. Where such a decision contributes to the development of the law, a
+brief, published per curiam or memorandum opinion is appropriate. Summary orders may be sufficient where clear existing law is simply being
+applied to facts that are undisputed or that are made indisputable on appeal
+because, for example, they are jury findings supported by substantial
+evidence.
+When, however, an opinion enters less developed areas of the law,
+laying down a new rule or modifying an old one, the writer must think not
+only about the rationale of the decision but also about the impact it will
+have as precedent. The writer should discuss and analyze the precedents in
+the area, the new direction the law is taking, and the effect of the decision
+
+4
+
+on existing law. Even if it appears that the litigants do not need a detailed
+statement of the facts, the opinion should present sufficient facts to define
+for other readers the precedent it creates and to delineate its boundaries.
+The relevant body of precedent - and the relevant policies - should be
+analyzed in sufficient detail to establish the rationale for the holding. A
+decision" ... can be accepted as completely just and fair only if the reasoning
+that supports it has been adequate, and the main relevant considerations
+have in fact been impartially weighed in the balance." S. Hampshire,
+Innocence and Experience 53 (1989).
+
+Audience
+Because opllllons decide cases, they are written primarily for the
+litigants and their lawyers-and for the lower courts or agencies whose
+decisions they review. To the extent an opinion is addressed to the parties,
+it should provide them with a fair and accurate statement of what was before
+the court for decision, what the court decided, and what the reasons for the
+decision were. This can generally be accomplished without writing a fulldress opinion. The parties will be familiar with the facts and will generally
+not be interested in an extensive exploration of the law, other than what
+is needed to give the losing party a clear explanation for the result.
+The writer must also ask whether the opinion has something to say to
+others besides the parties. Opinions intended to inform other audiences
+may require additional factual development and legal analysis. How much
+analysis is required, and how detailed it must be, depends on the subject
+matter and the probable audience. Judges may assume a certain level of
+sophistication and familiarity with the law on the part oflawyers. But if the
+case involves an arcane area of law familiar primarily ro specialists - tax,
+labor, or antitrust law, for example - more discussion of the factual and
+legal background will be needed and care should be taken to avoid the use
+of technical language and to define technical terms to aid comprehension
+by the uninitiated.
+An opinion remanding a case must tell the lower court what is expected
+on remand (see p. 19). An opinion setting guidelines for trial courts to follow
+must state the factual basis, legal rationale, and policy foundation of the
+guidelines sufficiently to enable trial judges to apply them correctly.
+The judge needs to consider whether a statement of facts and legal
+analysis adequate to explain the decision to the parties will suffice also for
+
+5
+
+a higher court to understand the basis for the decision. When the decision
+turns on complex facts, a more'elaborate explanation than is necessary for
+the parties may be helpful to the appellate court. And when the decision
+involves novel issues or a developing area of law, it is appropriate to trace
+the prior development of the law and develop the legal and policy rationale
+at some length. Opinions should not, however, be turned into briefs or
+become a vehicle for advocacy.
+Members of the general public will rarely read opinions. But reporters
+from the media will communicate what they believe to be the substance of
+an opinion that strikes them as being of public interest. When an opinion
+addresses an issue of general public interest or is likely to attract media
+attention, it should be written so as to ensure that it will be understood and not misunderstood. The mark of a well-written opinion in any event is
+that it is comprehensible to an intelligent lay person.
+
+Publication
+All courts of appeals have adopted rules, internal operating procedures,
+or other policies concerning publication and non-publication of opinions.
+See generally Stienstra, Unpublished Dispositions: Problems of Access and Use
+in the Courts of Appeals (FederalJudicial Center 1985). Some of the procedures specify criteria for determining whether or not an opinion should be
+published. For example, D.C. Circuit Rule 14(b) directs:
+An opinion, memorandum, or other statement explaining the basis for
+this Court's action in issuing an order or judgment shall be published if it
+meets one or more of the following criteria:
+<1) with regard to a substantial issue it resolves, it is a case of first
+impression or the first case to present the issue in this Court;
+(2) it alters, modifies, or significantly clarifies a rule of law previously
+announced by the Court;
+(3) it calls attention to an existing rule of law that appears to have been
+generally overlooked;
+(4) it criticizes or questions existing law;
+(5) it resolves an apparent conflict in decisions within the circuit or
+creates a conflict with another circuit;
+(6) it reverses a published agency or district court decision, or affirms a
+decision of the district court upon grounds different from those set forth
+in the district court's published opinion; or
+(7) it warrants publication in light of other factors that give it general
+public interest.
+
+6
+
+Similar criteria are included in 1st Cir. R. 36.2(a); 4th Cir. I.o.P. 36.3; 5th
+Cir. R. 47.5.1; 6th Cir. R. 24(a); 7th Cir. R. 53(c)(1); 8th Cir. Plan for
+Publication of Opinions 9f 4; and 9th Cir. R. 36-2.
+Other circuits have more general guidelines, giving judges latitude to
+decide whether to publish. The standard in the Third Circuit, for example,
+is that "[a]n opinion is published when it has precedential or institutional
+value." 3d Cir. I.o.P. chap. 5.5.1. See also 11th Cir. R. 36-1, I.o.P. 3
+("Opinions that the panel believes to have no precedential value are not
+published"); Fed. Cir. R. 47.8(c) ("Unpublished opinions ... are those
+unanimously determined by the panel as not adding significantly or usefully
+to the body oflaw and not having precedential value"). The Second Circuit
+permits disposition "in open court or by summary order" of "cases in which
+decision is unanimous and each judge of the panel believes that no
+jurisprudential purpose would be served by a written opinion .... " 2d Cir.
+R. 0.23. Otherwise, written opinions, including per curiam opinions, are
+published. See also 10th Cir. R. 36.1 (permitting disposition without opinion
+where "the case involves application of no new points of law that would
+make the decision of value as a precedent").
+In the district courts, the decision to publish in the West Reporter
+System is entirely in the judge's discretion. Because decisions of district
+judges are merely persuasive authority-i.e., they are not binding precedent even in their own districts-publication should be the exception. In
+addition, time constraints argue against writing formal opinions unless the
+decision involves a novel or complex issue or a matter of public importance
+and thus may be useful to attorneys and judges or be of interest to the public.
+Other reporters than West will sometimes print copies of "unpublished"
+opinions. The court has no control over this.
+Because unpublished decisions are written primarily for the parties, they
+will require little or no elaboration of the facts and law. Often they will take
+the form of summary orders or memorandum opinions. The determination
+as to whether a disposition should be published or unpublished should be
+made as soon as possible, so that the judge who writes the opinion will not
+spend an undue amount of time on it if publication is not warranted.
+
+7
+
+-------------
+
+Preparing to Write
+Before beginning to write, judges should think through what they want
+their opinion to say and how they want to say it. They should consider the
+scope of the opinion, the prospective audience, and whether the opinion
+will be published. They should marshal the material facts, formulate the
+issues, identify the applicable rules of law, and determine the appropriate
+form of judicial relief. In short, they must break the case down into its
+components.
+Professor Richard Wasserstrom characterizes the procedure by which a
+conclusion is reached as the "process of discovery" and the procedure by
+which a conclusion is justified as the "process of justification." R. A.
+Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification
+27 (1961). The judicial writer must remember to separate these phases of
+decision making. A judge should have completed the process of discovery
+and reached a conclusion - if only a tentative one - before beginning to
+write. Setting down the reasons in writing then constitutes the process of
+justification.
+This does not mean that judges will not change their minds after they
+have started ro write. Sometimes judges may decide in advance where they
+want to go, but in the process of writing discover that they cannot get there.
+Justice Roger Traynor wrote that he
+found [no] better test for the solution of a case than its articulation in
+writing, which is thinking at its hardest. A judge, inevitably preoccupied
+with the far-reaching effect of an immediate solution as a precedent, often
+discovers that his tentative views will not jell in the writing. He wrestles
+with the devil more than once to set forth a sound opinion that will be
+sufficient unto more than the day.
+Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U.
+Chi. L. Rev. 211, 218 (1957). Nevertheless, the writing should reflect only
+the final decision and the reasons for it. Where the decision is a close one,
+the opinion should say so, but it should not record every step and misstep
+the writer took along the way.
+9
+
+The following sections discuss some of the techniques judges use to
+organize their thoughts and to prepare before starting to write.
+
+Outlines
+Outlines help to organize one's thinking. They may take a variety of
+forms: a formal, written outline prepared by the judge or law clerk; a rough
+sketch of important facts, issues, and points to discuss that the judge
+enlarges in the course of writing; a bench memorandum prepared by a law
+clerk in advance of oral argument, which the judge has marked up after the
+argument and conference; a brief checklist; or perhaps only a mental
+framework. Whatever the form, the point is that judges, like all other good
+writers, must organize their thoughts before starting to write.
+A good time to prepare an outline is shortly after the conference at
+which the case is discussed and the opinion assigned, when the writer's own
+ideas and those of the other judges are fresh in mind. In addition to
+organizing the writer's thinking, the outline serves as an informal record of
+the discussion at the conference.
+
+U sing law clerks
+Law clerks can provide substantial assistance to the judge faced with
+writing an opinion. Especially in a time of burgeoning dockets, their help
+is crucial. Discussions with law clerks are helpful in planning the opinion
+and developing the outline. The opportunity to test one's thoughts in
+vigorous exchanges with the clerks is invaluable. This will continue to be
+a useful exercise throughout the writing process as the judge and the law
+clerks discuss and criticize the opinion as it develops, ferreting out error and
+ambiguity, striving for precision, and polishing the final product.
+In the writing process itself, judges use their law clerks in different ways.
+Some limit the clerks to performing research, preparing bench memos, and
+editing, cite-checking, and commenting on the judge's drafts. Some assign
+the writing of the first draft to a law clerk in routine cases only; others have
+clerks write drafts in even the most complex cases, having found that
+working from a draft, even a rough draft, makes the task of writing the
+opinion easier. A clerk assigned to write the first draft should use an outline
+developed by or with the judge, and should understand the scope, organization, and probable outcome of the opinion. Many judges, having found
+that it takes more time to work with a clerk's draft, write their own draft,
+
+10
+
+then polish it into the final product. Some judges invite the law clerk to
+rewrite the judge's first draft before the judge returns to it for preparation of
+the final version.
+The process the judge uses depends on his or her own work habits and
+style and on the capabilities of the particular law clerk. The judge must
+always remember, however, that the law clerk usually is fresh out of law
+school, with little practical experience. Even a distinguished academic
+record does not qualify a law clerk to practice the craft of judging, to draw
+the fine line between reversible and harmless error, to make the sometimes
+delicate assessment of the effect of precedent, and to recognize subtle
+distinctions in the applicable law. It is the unusual law clerk who has
+perfected a writing style that makes for a satisfactory opinion. Law clerks'
+fact statements, analysis, and conclusions may require major revisions.
+Judges should not simply be editors - no matter how capable the clerk, the
+opinion must always be the judge's work.
+
+Materials to review
+Little need be said on this subject. The judge will, of course, have the
+briefs of the parties and the law clerk's bench memorandum. The full record
+is not always readily available. When an opinion turns on the specifics of
+testimony or on what occurred in the court room, there may be no substitute
+for reading the relevant portions of the transcript; rarely will excerpts or
+summaries in briefs convey the significance of these events fairly and fully.
+If an exhibit is crucial, it should be examined. Reference to the record may
+also be necessary to determine the precise procedural course by which the
+appeal has reached the court and the relevant proceedings below. The judge
+will therefore want to arrange for access to the record while preparing the
+opinion.
+Some appellate courts tape-record the oral argument. Listening to the
+tape recording before beginning to draft an opinion can help refresh one's
+memory of the significant issues and the arguments made.
+
+11
+
+Organizing and Writing
+the Opinion
+A judicial opinion should identify the issues presented, set out the
+relevant facts, and apply the governing law to produce a clear, wellreasoned decision on the issues that must be resolved to decide the case. The
+guidelines that follow are intended to help judges write opinions that will
+meet those tests.
+
+Structure
+A full-dress opinion should contain five elements: (1) an introductory
+statement of the nature and procedural posture of the case; (2) a statement
+of the issues to be decided; (3) a description of the material facts; (4) a
+discussion of the governing legal principles and the resolution of the issues;
+and (5) the disposition and necessary instructions. The organization and
+style of opinions will, of course, vary from case to case, but this is the
+framework on which to build.
+Clear and logical organization of the opinion will help the reader
+understand it. The use of headings and subheadings, Roman numerals, or
+other means of disclosing the organization to the reader is always helpful,
+particularly where the opinion is long and the subject matter complex.
+These not only provide road signs for the reader, they also help to organize
+the writer's thoughts and test the logic of the opinion. They also enable a
+judge who wishes not to join some part of the opinion to identify it. And
+they assist in the indexing and classification of opinions and their retrieval
+by researchers.
+The following sections discuss each of the elements of an opinion.
+
+Introduction
+The purpose of the introduction is to orient the reader to the case. It
+should state briefly what the case is about, the legal subject matter, and the
+result. It may also state some or all of the following:
+13
+
+(1) The parties: the parties should be identified, if not in the introduc~
+tion then early in the opinion, preferably by name, and that identification
+should be used consistently throughout. The use oflegal descriptions, such
+as "appellant" and "appellee," tends to confuse, especially in multi~party cases.
+(2) The procedural and jurisdictional status: the basis for jurisdiction,
+relevant prior proceedings, and how the case got before the court.
+(3 ) The issue: the issue or issues to be decided, unless they are so complex
+that they are better treated in a separate section.
+Summarizing the holding at the outset can save time for readers,
+particularly researchers who will be able to determine immediately whether
+to read the rest of the opinion. Providing a terse summary of the holding at
+the start of the opinion also helps the writer to state it precisely and
+succinctly. The final version of the introduction may be best written after
+the opinion is completed, when the judge has refined the issues, the
+conclusions, and the supporting analysis.
+Some judges prefer to place the holding and conclusion at the end,
+believing that an opinion will be more persuasive if the reader must work
+through it before learning the outcome.
+
+Statement of issues
+The statement of issues is the cornerstone of the opinion; how the issues
+are formulated determines which facts are material and what legal prin~
+ciples govern. Judges should not be prisoners of the attorneys' analysis; they
+should frame the issues as they see them, even if this differs from how the
+lawyers state them. That an issue has been raised by the parties does not
+mean that it must be addressed in the opinion if it is not material to the
+outcome.
+The statement of issues should be brief. Although an issue or two can
+often be sufficiently identified in the introduction, the number or complexity
+of the issues in some cases may require separate statements.
+The statement may come before or after the statement of facts. Stating
+the issues first will make the fact statement more meaningful to the reader
+and help focus on material facts. Judge Frederick G. Hamley of the Ninth
+Circuit has written: "A preliminary statement of the question, even in
+general terms, enables one to read the factual statement with discernment.
+It also aids the writer of the opinion in confining the factual statement to
+that which is essential." Section of Judicial Administration, American Bar
+
+14
+
+Association, Internal Operating Procedures of Appellate Courts 30 (1961).
+In some cases, however, it may be difficult to state the issues clearly unless
+the reader is familiar with the material facts. This may be true, for example,
+where the issue is procedural and requires an explanation of the setting.
+The statement of issues should not be confused with recitals of the
+parties' contentions. Lengthy statements of the parties' contentions, occa~
+sionally found in opinions, are not a substitute for analysis and reasoning
+and should be avoided.
+
+Facts
+In a single~issue case, the facts can be set forth in one statement early in
+the opinion. But when a series of issues is raised, some facts may be relevant
+to fewer than all of the issues. This situation confronts the judge with the
+difficult task of presenting enough facts at the outset to make the opinion
+understandable without later repetition when discussing particular issues
+that require further elaboration of facts. In such a case, the initial statement
+of facts may be limited to necessary historical background, leaving the
+specific decisional facts to be incorporated in the analysis of the issues on
+which they bear.
+Only the facts that are necessary to explain the decision should be
+included, but what is necessary to explain the decision is not always obvious
+and may also vary depending on the audience. An unpublished memoran~
+dum opinion intended only for the parties does not require background or
+hisrorical facts; the opinion need only identify the facts that support the
+conclusion. Background facts, however, may sometimes be helpful in giving
+the context of a decision and explaining its rationale. And opinions that are
+likely to be read by audiences other than the parties may require lengthier
+fact statements to provide the context for the decision and delineate its
+scope.
+Excessive factual detail can be distracting. Dates, for example, tend to
+confuse and should not be included unless material to the decision or
+helpful to its understanding. On the other hand, while brevity and simplic~
+ity are always desirable, they are secondary to the need for a full and fair
+statement. Facts significant to the losing side should not be ignored.
+Some judges like to include facts that, while not material, add color.
+"We've got to have some fun," one judge said. Some feel that this is a mark
+of the author's flair and improves readability. There is an obvious danger,
+
+15
+
+however, that the reader may think the decision is based on these facts even
+though they are not material to the reasoning. Moreover, this style of
+writing - though appealing to the author - may be seen by the parties as
+trivializing the case. It must therefore be approached with caution.
+Above all, the statement of facts must be accurate. The writer should not
+assume that the facts recited in the parties' briefs are stated correctly. There
+is no substitute for checking fact references against the record. No matter
+how good the lawyers, the judge may find that the record facts differ from
+the way they are stated in the briefs. If time does not permit the judge to read
+the entire record personally, a law clerk should be assigned that task with
+instructions to mark all the relevant parts for the judge to review.
+
+Discussion of legal principles
+The discussion of legal principles is the heart of the opinion. It must
+demonstrate that the court's conclusion is based on reason and logic. It
+should persuade the reader of the correctness of the result by the power of
+its reasoning, not by advocacy or argument. The judge must deal with
+arguably contrary authority and opposing argument, and must confront the
+issues squarely and deal with them forthrightly. Although the opinion need
+not address every case and contention, the discussion must be sufficient to
+demonstrate to the losing party that the essentials of its position have been
+fully considered.
+The following guidelines apply to the discussion of legal principles.
+
+Standard of review
+The opinion should specify the controlling standard of review at the
+outset of the discussion oflegal principles. Unless the reader is told whether
+review is under the de novo, the clearly erroneous, or the abuse of discretion
+standard, the meaning of the decision may be obscure. Specifying the
+standard of review, moreover, disciplines the writer's analysis.
+Appendix C provides examples of different standads of review.
+
+Order of discussion
+Just as the court should not be wedded to counsel's formulation of the
+issues, it should not feel compelled to address the issues in the order in which
+counsel presented them. The order in which to address the issues will be
+dictated by the organization of the opinion. Generally, dispositive issues
+
+16
+
+should be discussed first. The order in which those issues are taken up will
+be governed by the opinion's reasoning. If non-dispositive issues are
+addressed at all - for educational reasons or to guide further proceedings
+- discuss them near the end of the opinion.
+
+Which issues to address
+As a general proposition, an opinion should not range beyond the issues
+presented; it should address only the issues that need to be resolved to decide
+the case. If the court determines that an issue not raised by the parties is
+dispositive and should be addressed - even though the parties have not
+properly preserved and presented it - the court should notify counsel and
+provide an opportunity to brief it.
+Issues not necessary to the decision but seriously urged by the losing
+party should be discussed only,to the extent necessary to show that they
+have been considered. The line between what is and is not necessary to the
+decision, however, is not always clear. Occasionally, a full explanation of
+the rationale for a decision may be enhanced by discussion of matters not
+strictly a part of the holding. Moreover, considerations of economy and
+efficiency may argue in favor of addressing issues not necessary to the
+decision if the court can thereby provide useful guidance for the lower court
+on remand. In doing so, however, judges must be careful not to prejudge
+issues that are not before them and to avoid advisory opinions and
+unnecessary expressions of views that may tie the court's hands in a future
+case.
+
+Alternative holdings
+Stating separate and independent grounds for a decision adds strength
+to the decision but diminishes its value as a precedent. Professor Bernard
+Witkin argues that judges should avoid such "even if' or "assuming
+arguendo that" rulings. See B. E. Witkin, Manual on Appellate Court
+Opinions § 81 (1977). Statements such as "even if the facts were otherwise"
+or "assuming arguendo that we had not concluded thus and so" undermine
+the authority of the holding. Witkin suggests either limiting the "even if'
+approach to situations where it is necessary to acllieve a majority decision,
+or avoiding it completely by phrasing the opinion in such a manner that the
+alternative assumption is disposed of first and the substantial ground of the
+opinion stated last. But in opinions that are likely to have little impact as
+
+17
+
+precedent, there is no reason why the court should not base its decision on
+alternative grounds, without giving one precedence over the other.
+
+Case citations
+Most points of law are adequately supported by citation of the latest
+decision on point in the court's circuit or the watershed case, if there is one.
+String citations and dissertations on the history of the rule add nothing
+when the matter is settled in the circuit. Judges should resist the temptation
+of trying to impress people with their (or their law clerks') erudition. If there
+is no authority in the circuit, it is appropriate to cite authority on point from
+other circuits. If an opinion breaks new ground, however, the court should
+marshal existing authority and analyze the evolution of the law sufficiently
+to support the new rule.
+
+Secondary sources
+Because law review articles, treatises, texts, and non-legal sources are
+not primary authority, they should be cited sparingly and only to serve a
+purpose. That may be to refer to a sound analysis supporting the reasoning
+of the opinion. Some authors are so well respected in their fields that, in the
+absence of a case on point, their word is persuasive. Occasionally, public
+documents or other published works will shed light on relevant historical
+or policy considerations.
+
+Quotations
+If something important to the opinion has been said well before, quoting
+relevant language from a case on point can be more persuasive and
+informative than merely citing or paraphrasing it. The impact of a quote,
+however, is inversely proportional to its length. Quote briefly, and only
+when the language makes an important point.
+While quotes should be short, they must also be fair. They must be in
+context and accurately reflect the tenor of their source.
+
+Avoiding advocacy
+Justifying a decision will sometimes require explaining why contrary
+arguments were rejected. In addressing the main contentions of the losing
+side, however, an opinion should not become an argument between the
+judge and the lawyers, or other judges on the court, or the court below. If
+
+18
+
+- - - - - - - " - - --"""-----
+
+the losing side has raised substantial contentions, the opinion should
+explain why they were rejected. But it need not refute the losing party's
+arguments point by point or adopt a contentious or adversarial tone.
+An opinion can - and properly should - carry conviction without
+becoming a tract. Put aside emotion and personal feelings, and avoid using
+adjectives and adverbs unless they convey information material to the
+decision.
+
+Treatment of the court below
+Appellate opinions can and should correct trial court errors and provide
+guidance on remand without embroidering on the circumstances or criticizing the court below. An appellate opinion need not attack a trial court's
+wisdom, judgment, or even its attitude in order to reverse its decision. And
+it should avoid unnecessary criticism, such as for having failed to consider
+authority or resting on improper motives.
+
+Concluding paragraph
+Disposition of a case - and the mandate to the lower court or agency,
+when that is a part of the disposition - is the most important part of the
+conclusion. Appellate courts should not speak in riddles. Simply to remand
+a case "for further proceedings consistent with the opinion" may leave the
+court below at sea. Opinions must spell out clearly what the lower courts or
+agencies are expected to do without, however, trespassing on what remains
+entrusted to their discretion. Thus, even where an abuse of discretion is
+found, the appellate court's decision is on the law, and the lower court or
+agency on remand retains the authority to exercise its discretion properly.
+Appendix D contains examples of concluding paragraphs that provide
+clear instructions to the lower court or agency.
+
+Summary disposition
+Summary disposition may be appropriate in cases where only the parties
+and their lawyers are interested in the result, the facts are not complex, and
+the precedents are clear. It may take the form of a one-sentence order or a
+brief memorandum. See Appendix B.
+
+19
+
+The coun: should state its reason for making a summary disposition.
+Where a summary disposition is pursuant to circuit or local rule, that rule
+should be cit,~d.
+
+Issuing opinions orally from the bench
+AppellatE panels rarely rule from the bench. When they do, their
+decision may be memorialized simply in a one-line order, the reasons having
+been expressed orally.
+Trial judges commonly deliver rulings from the bench. Even after a trial,
+Fed. R. Civ. P. 52{a) authorizes judges to state their findings of fact and
+conclusions c flaw orally from the bench. This practice saves much time and
+holds down the backlog of submissions. Having attorneys submit proposed
+findings and conclusions in advance of trial facilitates oral rulings, though
+the court must make its own, independent determination of fact and law.
+On occasion, a judge will orally announce a ruling, or proposed ruling, and
+state that an opinion will follow. This presents obvious hazards: with the
+case more or less decided, the pressure is off and the judge may have trouble
+getting around to writing the opinion. Moreover, the judge may later find
+it difficult to write an opinion in a way consistent with the earlier oral ruling
+and might even arrive at a different result.
+
+20
+
+Language, Style, and
+Self--Editing
+Characteristics of bad writing
+The judges who were interviewed for this manual identified the follow~
+ing as the major problems in judicial writing.
+
+Wordiness
+Wordiness means not just verbosity - using two words \ !hen one will
+do - but trying to convey too much information, covering to ) rnany issues,
+and simply writing too much. In trying to write authorita,tively, some
+judicial writers belabor the obvious in lengthy discussion of uncontroversial
+propositions. Often wordiness reflects the writer's failure (or inability) to
+separate the material from the immaterial and do the grubby work of editing.
+
+Lack of precision and clarity
+Precision is the main concern of good writing. Some legal writers lack
+the ability to write simple, straightforward prose. Often this is the result of
+lawyers' tendency to find cover by over~generalizing: when the writer i3 not
+sure of a legal principle or of how to state it precisely, vague expression
+finesses the difficulty. To write with clarity and precision, the writer must
+know precisely what he or she wants to say and must say that and nothing
+else. The thought is the origin of the word, and the word is no better than
+the thought from which it springs.
+Precision in judicial writing is important not simply as a matter of style
+but also because judges write for posterity. Once an opinion is filed, lawyers
+and others will read it with an eye to how they can use it to serve their
+particular purpose, no matter how remote that may be from what the writer
+had in mind. Thus, it is well for judicial writers to think how their words
+might be used, and write to forestall theitmisuse.
+Painstaking and thoughtful editing is essential for precise writing. This
+
+21
+
+means going over the opinion, sentence by sentence, and asking: What do
+I mean to say here, and have I said it and no more?
+
+Poor organization
+A sound opinion is the reflection of a logical process of reasoning from
+premises through principles to conclusions. The framework in which that
+process takes place should be visible to the reader from the organization of
+the opinion. That organization will be a road map enabling the reader to
+follow from the beginning to the end without getting lost.
+
+Cryptic analysis
+While brevity is desirable, judges must elaborate their reasoning sufficiently so that the reader can follow. An opinion that omits steps in the
+reasoning essential to understanding will fail to serve its purposes.
+
+Pomposity and humor
+Judicial writing can be pompous. The judge must be vigilant for
+evidence of pomposity, such as arcane or florid expressions, use of the
+imperial "we" by a single district judge, or excursions into irrelevant
+erudition. Although humor is sometimes rationalized as an antidote to
+pomposity, it works better in after-dinner speeches than in judicial opinions. In the latter it may strike the litigants - who are not likely to see
+anything funny in the litigation - as a sign of judicial arrogance and lack
+of sensitivity. Though some judges seem to have succeeded with humor, it
+is a risk not to be taken lightly. Nor need it be taken, for writing can be made
+lively, forceful, and interesting by clarity and rhetoric.
+
+Guides for good writing
+The following guides are suggested to help writers recognize and avoid
+the problems listed above.
+
+Eliminate unnecessary words
+It is difficult to improve on Professor Strunk's injunction to omit
+needless words:
+Vigorous writing is concise. A sentence should contain no unnecessary
+words, a paragraph no unnecessary sentences, for the same reason that a
+drawing should have no unnecessary lines and a machine no unnecessary
+
+22
+
+parts. This requires not that the writer make all his sentences short, or that
+he avoid all detail and treat his subjects only in outline, but that every
+word tell.
+W. Strunk & E. B. White, The Elements of Style 23 (3d ed. 1979).
+
+Be succinct and direct
+Brevity promotes clarity. Writing that makes its point briefly is more
+likely to be understood than writing that is lengthy. Writing succinctly also
+forces the writer to think with precision by focusing on what he or she is
+trying to say.
+Judicial writing should be direct. Use simple, declarative sentences and
+short paragraphs most of the time, but vary sentence length and structure
+where necessary for emphasis, contrast, and reader interest. Prefer the
+active voice and avoid constructions such as "it is said," "it is argued," and
+"it is well founded." Weed out adjectives and eliminate adverbs such as
+"clearly," "plainly," and "merely."
+
+Write plain English
+Even complex ideas can be expressed in simple language understandable
+by the general reader. To write in simple language requires that the writer
+understand the idea fully, enabling him or her to break it down into its
+essential components. For example, although electricity is a complex
+scientific phenomenon, it can be explained in terms lay persons understand.
+The same is true of tax, antitrust, and patent law, to take some examples.
+Avoid "legalese," cliches, hackneyed phrases ("as hereinabove set forth,"
+for example), Latin expressions ("vel non," for examp Ie), and j argon. When
+using words of art, consider whether they are commonly understood among
+the likely audience or require plain English definition. There is a place for
+the elegant word, but it should not be necessary for the reader to have a
+dictionary at hand while reading the opinion.
+Writing gender~neutral prose, though laudable, can lead to convoluted
+constructions when the writer tries to avoid the use of the personal
+pronoun; it should be practiced in moderation.
+
+23
+
+Footnotes and citations
+Footnotes
+The purpose of a footnote is to convey information that would disrupt
+the flow of the opinion if included in the text. The first question to ask about
+a prospective footnote is whether its content is appropriate for inclusion in
+the opinion. If it is not important enough to go into the text, the writer must
+have some justification for including it in the opinion at all. Footnotes can
+be appropriate to convey information, such as the text of a statute or
+material from the record, that supports the language of the opinion but is
+not immediately necessary to understand it. They can be used by the court
+to acknowledge and briefly dispose of tangential issues. Some judges place
+all citations in footnotes, leaving the text entirely for discussion. But
+footnotes should not be inserted for the writer's gratification or as a
+repository for information that the writer does not know what to do with.
+Some judges, conscious of the tendency to overuse footnotes, are striving to
+eliminate or at least reduce the number of footnotes in their opinions. See,
+e.g., Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).
+
+Citation formats
+The two leading legal citation manuals are A Unifonn System of Citation
+(the "Blue Book") and the University ofChicago Manual ofLegal Citation (the
+"Maroon Book"). A judge may find it convenient to follow one or the other
+of these manuals in citing primary and secondary sources. Mastering the
+arcana of citation forms, however, is not a productive use of judges' or law
+clerks' time. The purpose of citations is to assist researchers in identifying
+and finding the sources; a form of citation that will serve that end is
+sufficient. In addition the form of citation should be consistent to avoid the
+appearance of lack of craftsmanship and care.
+Some judges maintain personal citation forms or style manuals to reflect
+their preferences. Such forms and manuals promote consistency, help
+orient new clerks, and encourage careful preparation of opinions.
+
+Edit carefully
+Careful writers must edit their work critically to clarify the ambiguities,
+eliminate the superfluous, smooth the transitions, and tighten the structure.
+This is not an easy task because writers reading their own writing are prone
+to read what they meant to write rather than what they actually wrote.
+24
+
+Judges must strive to be objective about their writing, to read every
+paragraph carefully, and not to slide over text because it is familiar. A judge
+editing his or her own work must always ask such questions as: Have I said
+precisely what I intended to say? Is there a better way to say it? Does the
+thought flow clearly and logically? Will the reader understand it?
+The following techniques should help judicial writers improve their selfcritical faculties.
+
+Reread and revise
+Editing involves striking needless words and unnecessary facts, rewriting unclear and sloppy sentences, eliminating repetition, reorganizing, and
+making the opinion cleaner, sharper, and tighter. "I spend a lot of time
+editing, clearing away my own and the clerks' underbrush," one judge said.
+"The underbrush may be valuable some place or some time, but not here and
+now." This process may take the judge through many drafts before a
+polished opinion emerges.
+Word processors have become a boon to writers and editors. They
+greatly speed up the writing process and facilitate editing and revising. But
+proofreading on a word processor is demanding, and without careful and
+repeated checking of a printed copy, typographical and other errors are
+easily missed.
+Editing should not focus solely on language, grammar, and style. Judges
+must check for internal consistency. Go back to the introduction to see
+whether the opinion has addressed all of the issues and answered the
+questions as they were initially formulated. Reread the statement of facts to
+see whether it covers all the facts significant to the decision and no more.
+Review the legal discussion to see whether the opinion has addressed in
+logical order the issues that need to be addressed. Consider whether the
+conclusion follows from the discussion.
+
+Put the draft aside and come back to it with a fresh mind
+The editing process is improved if the judge will "let the draft sit for a
+while and simmer," as one judge said. Though time constraints and
+mounting caseloads may make it difficult to hold up the work, a delay of
+even a few days will serve to add a measure of objectivity to the review. It
+may help the judge see things not seen earlier, gain new insights, and think
+of new ideas.
+
+25
+
+Ask a fresh reader to criticize a draft
+A law clerk who has not worked on the opinion can serve a useful
+function by reading the draft with a fresh eye and offering editorial and
+substantive criticism. But even the law clerk who has assisted the judge can
+provide an editorial perspective that will help produce a finished product.
+
+26
+
+Dissents, Concurrences, and
+Writing with Other Judges
+Appellate opinions represent the collective decision of several judges.
+The judge who writes the opinion must take into account the thinking of
+the other judges of the panel or en bane court and incorporate the group's
+thinking into the opinion's rationale. Sometimes several judges participate
+in preparing an opinion, for example, when an opinion is written jointly or
+when judges comment on drafts prepared by the judge assigned to write the
+opinion. When the opinion does not represent the thinking of all of the
+members of the court, some judges may choose to prepare concurring or
+dissenting opinions. This chapter discusses some of the collegial consider,
+ations in opinion writing.
+
+Joint opinion writing
+In some circuits, the complexity and number of issues involved in a
+single case have resulted in jointly written opinions. Sometimes the
+opinion is designated a per curiam, at other times the authors of the different
+sections are identified. The review of long and technical administrative
+records in the D.C. Circuit, for example, frequently produces such opinions.
+See, e.g., National Wildlife Federation v. Hodel, 839 F.2d 694 (D.C. Cir.
+1988), and Ohio v. U.S. Department of Interior, 880 F.2d 432 (D.C. Cir.
+1989). See also Chemical Manufacturers Association v. Environmental Protec,
+tion Agency, 870 F.2d 177 (5th Cir. 1989).
+When a panel chooses to issue a joint opinion, considerable planning
+and coordination by both judges and law clerks are necessary to ensure a
+readable and coherent final opinion. A longer,than,usual post' argument
+conference is desirable to discuss the assignment of opinion parts, their
+interdependence, and joint assumptions or factual predicates. The se,
+quence of sections may need to be determined to avoid confusion and
+repetition of basic facts or legal analyses.
+
+27
+
+Generally, one judge on the panel must assume coordinating authority
+and circulate an outline and summary of the proposed sections before
+writing begins. One judge, usually the coordinating judge, must also take
+responsibility for writing the introduction and conclusion, covering all
+sections. The introduction is usually brief and confined to a statement of the
+proceedings 'eading to the court challenge. The facts in detail are better
+presented as needed in the individual sections.
+After the authors have drafted and approved the various sections, the
+coordinating judge should assume authority to make non-substantive
+changes to avoid duplication or gross stylistic differences. The law clerks
+usually meet to ensure a uniform citation and heading format.
+As cases become more complex and time-consuming, courts can be
+expected to make increased use of jointly written opinions to avoid delay
+and tying up one judge for too long. With careful planning, it is possible to
+maintain high standards of writing for these opinions.
+
+Commenting on a draft
+prepared by another judge
+Judges circulate draft opinions to other judges on a panel or en banc
+court to ensure that the opinion reflects the rationale of the judges in the
+majority. When commenting on an opinion written by another judge, it is
+always appropriate to comment on the substance of an opinion, but
+inappropriate to comment on matters of style. When the distinction
+between substance and style is fuzzy, comments are appropriate if the matter
+in question seems to speak for the court and thus might send a message that
+does not represent the view of the other members.
+If, for example, the discussion of a substantive issue is not written clearly,
+the other judges should bring this to the attention of the writing judge.
+When a citation to a case or law review article may represent a rationale that
+is not adopted by other judges, they should express their disagreement to the
+writing judge. When, however, a reviewing judge objects to stylistic,
+grammatical, or language choices simply on the basis of personal preference,
+such comments are best left unexpressed. Nevertheless, while judges are not
+grading the work of their colleagues, it is helpful to point out minor matters
+such as typographical errors or other "nits," either by a note to the author
+or by a telephone call between law clerks.
+
+28
+
+Dissenting opinions
+Dissenting opinions serve several purposes. They may help to attract en
+banc or certiorari review and to isolate and refine the issues for further
+appeal. They may attract legislative action to correct possible shortcomings
+in the law. Dissenting opinions may also help to narrow the scope of a
+decision by pointing out the possible dangers of the position that the
+majority has taken or by sending signals to other judges and to the bar as to
+the limits of a particular decision and its effect on similar cases in the future.
+In these ways, dissenting opinions can serve useful functions in communicating important information to an opinion's audiences and aiding the
+growth of the law.
+Dissenting opinions are written at a potential cost, however. A dissent
+that strikes a strident or preachy note may contribute to divisiveness and ill
+feelings on the court, may undermine the authority of the opinion and of
+the court as an institution, and may create confusion. Whether to dissent
+may depend on the nature of the case and the principle at issue. Dissents
+generally should not be written when the principle at issue is settled and the
+decision has little significance outside the specific case. Cases that involve
+emerging legal principles or statutory interpretation in areas that will affect
+future activities of the bar, the public, and the government are more likely
+to warrant dissenting opinions than cases of limited application. The issue
+should be significant enough that the judge's "fever is aroused," as one judge
+said, but the motivation should be to further the development of the law
+rather than to vent personal feelings. Judges considering whether to dissent
+should ask themselves whether the likely benefits outweigh the potential
+costs.
+If a judge decides that writing a dissent will serve a useful purpose, it
+should be written as carefully and responsibly as the opinion of the court.
+Rarely should a judge dissent without opinion; doing so communicates no
+information to the opinion's readers. The argument should focus on the
+critical principles and distinguish the dissenter's rationale from that of the
+majority. But it is one thing to state the points of disagreement forcefully
+and effectively, and another to engage in argument or advocacy. A dissenting opinion should not simply slash at the majority opinion or its author.
+Personal attacks, offensive language, and condescending rone should not be
+used, although some judges believe that moral outrage and restrained
+indignation may sometimes be appropriate.
+
+29
+
+Appendix E contains examples of dissenting opinions that take a
+temperate, reasoned tone in reflecting sincere disagreement with the
+majority.
+
+Concurrences
+Most of the considerations applicable to dissenting opinions also apply
+to concurrences. Concurrences are appropriate where they are intended to
+define with greater precision the scope of an opinion or otherwise inform
+the parties and other audiences of what the writer believes are important
+points. Thus, judges may issue concurrences where there are two argued
+grounds for a decision, the majority justifies its decision on one of those
+grounds, and other judges believe the alternative grounds should be stated.
+Concurrences may also serve to indicate to parties in future cases how far
+the court is willing to go down a road, and where the road ends. A
+concurring opinion should not be written simply to add a point of view or
+personal statement that does not further either the decisional or educational value of the opinion. The question should be: Am I writing this for
+myself or for the good of the court?
+Judges should include in their concurring opinions a statement of
+reasons why they are concurring specially. The point is not to present an
+alternative opinion of the court, but to indicate the point of departure from
+the majority and to further define the contours of the opinion. Concurrences should not rehash the facts and legal principles on which the
+majority based its decision, except to the extent that differences in the
+factual findings and legal conclusions are significant to the concurring point
+of view. The arguments should be principled and the tone should be
+instructive but not pedantic.
+Appendix F contains examples of useful and narrowly written concurring opinions.
+
+30
+
+Reading About Writing
+A dictionary, a thesaurus, a citation manual, and a reference manual are
+the basic writing aids judges should have at hand. Judges should also be
+familiar with manuals on style and grammar and refer to them when
+questions arise. Strunk & White's The Elements of Style is clear and concise.
+Fowler's Modern English Usage and Follett's Modern American Usage are
+comprehensive and authoritative. "I think judges should constantly read
+books on writing," one judge said.
+Some judges find that reading old opinions helps them to improve the
+clarity of their writing. "Sometimes I'll remember an opinion that I think
+was particularly good in terms of teaching the legal principles," one judge
+said. "The old opinion will become sort of a textbook for how to skin that
+cat."
+Beyond that, "I always tell my clerks to go back and read some good
+authors to see how they write and then try to think about that when they
+are writing law," one judge said. Another observed:
+I find the best tool for trying to keep your writing from being totally dull
+and hard to read is to read non-legal things. I think the more non-legal
+books you read, the more you pick up interesting popular terms having
+application to the law and the more you can stay away from legal jargon
+or the same tired old words. I find that reading outside of the law,
+sometimes a phrase will stick in your mind, sometimes a word, sometimes
+an image. Analogizing to non-legal situations can liven up your writing,
+as can introducing unexpected words and images.
+
+This manual will not suggest what should be on a judge's non-legal
+reading list (although several judges suggested that Ernest Hemingway's
+lean style is an excellent model for legal writing). The following, however,
+are books, articles, and other materials that will assist judicial writers in
+preparing clear and concise opinions. In addition, there came to hand, as
+this manual went to press, Judge Ruggero Aldisert's latest work, Opinion
+Writing (1990), a book that should be on every judge's reading list.
+
+31
+
+Books
+Advocacy and the King's English (Rossman ed. 1960)
+R. Flesch, How to Write Plain English: A Book for Lawyers and
+Consumers (1979)
+J. J. George, Judicial Opinion Writing Handbook (2d ed. 1986)
+R. A. Leflar, Appellate Judicial Opinions (1974)
+D. Mellinkoff, The Language of the Law (1963)
+R. A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal
+Justification (1961)
+H. Weihofen, Legal Writing Style (1961)
+R. H. Weisberg, When Lawyers Write (1987)
+B. E. Witkin, Manual on Appellate Court Opinions (1977)
+
+Articles
+Aiken, Let's Not Oversimplify Legal Language, 32 Rocky Mtn. L. Rev. 358 (1960)
+Bell, Style in]udicial Writing, 15 J. Pub. L. 214 (1966)
+Benson, The End of Legalese: The Game Is Over, 13 Rev. L. & Soc. Change
+519 (1984-85)
+Douglas, How to Write a Concise Opinion, 22 Judges' J. 4 (Spring 1983)
+Francis, A Faster, Better Way to Write Opinions, 27 Judges' J. 26 (Fall 1988).
+Hager, Let's Simplify Legal Language, 32 Rocky Mtn. L. Rev. 74 (1959)
+Hugg,]udicial Style: An Exemplar, 33 Loyola L. Rev. 865 (1987)
+Leflar, Quality in]udicial Opinions, 3 Pace L. Rev. 579 (1983)
+Leflar, Some Observations Conceming]udicial Opinions, 61 Colum. L. Rev.
+810 (1961)
+Mikva, For Whom]udges Write, 61 S. Cal. L. Rev. 1357 (1988)
+Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985)
+Posner, Goodbye to the Bluebook, Appendix: University of Chicago Manual of
+Legal Citation, 53 U. Chi. L. Rev. 1343 (1986)
+Re, Appellate Opinion Writing (Federal Judicial Center 1977)
+Schwarzer, Communicating with]uries: Problems and Remedies, 69 Calif. L. Rev.
+731 (1981)
+Stern, The Writingofjudicial Opinions, 18 Pa. Bar Ass'n Q. 40 (1946)
+Wydick, Plain English for Lawyers, 66 Calif. L. Rev. 727 (1978)
+Younger, Bad Writing = Bad Thinking, A.B.A. J. 90 (January 1,1987)
+
+Other
+A.B.A. Section of Judicial Administration, Internal Operating Procedures of
+Appellate Courts (1961)
+Institute of Judicial Administration, Appellate Courts: Internal Operating
+Procedures-Preliminary Report (1957)
+
+32
+
+APPENDIX A
+The following excerpt from a per curiam opinion is an example of a
+memorandum opinion.
+This is a consolidated appeal from two actions .... Defendants ... appeal
+from final judgments of foreclosure and sale entered in the [district court]
+dated July 6, 1989 and May 17, 1989. We need not recite the facts of this
+case, since they are set forth in detail in the district court's wo thorough
+opinions, reported at .... Familiarity with these facts is aSSl med. See also
+[related action].
+The principal argument of [defendants] on appeal is th;, t [he district
+court erred in dismissing the "faithless agent" defense to foreclosure under
+[state] law. That defense is an attempt to avoid the established rule of agency
+law that a principal is liable to third parties for the acts of an agent operating
+within the scope of the agent's real or apparent authority. See British
+American & Eastern Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir. 1979).
+Appellants ... do not contest that appellee ... , the mortgagee of the
+properties involved here, was a third party. Nor do they deny that [appellee]
+was dealing with their agent [land company] and that the latter was acting
+within the scope of its apparent authority. Nevertheless, they invoke the
+faithless agent defense, claiming that [appellee] should be barred from
+foreclosing because it was aware of the mismanagement ofB_.
+, who
+was acting as president of [the land company]. To support this view, they
+point to evidence that [appellee] believed that B
+'s mismanage~
+ment was the root cause of the default.
+We are not persuaded that the district court erred in rejecting the
+faithless agent defense. Assuming arguendo that this defense may be
+invoked under the right circumstances, we considered and rejected it in
+[citation]. Indeed, the party asserting the faithless agent defense in [cita~
+tion] appears to have been essentially the same, in all but name, as
+[defendants]. [Citation.] Moreover, even if, as defendants contf'nd, principles
+of collateral estoppel do not bar their claim, we find the reasoning of the
+[citation] panel dispositive on this record. "It cannot be that a mortgagee's
+
+33
+
+awareness of defaults under a mortgage constitutes awareness that a managing agent is engaged in self-dealing." [Citation.] On the record before us,
+"[f]aced with only conclusory allegations and unsupported factual assertions," we reject, as did the [citation] panel, the "'faithless agent' defense."
+[Citation.]
+The judgments of the district court are affirmed.
+
+34
+
+APPENDIXB
+The following is an example of a summary order.
+This cause came on to be heard on the transcript of record from the
+United States District Court for the
+District of _ _ and was taken
+under submission.
+1. Plaintiff ... appeals pro se from an order dated December 21, 1989 of
+the United States District Court for the
+District of
+denying
+appellant's motion for reconsideration of the district court's order of
+October 12, 1989, which granted the crossmotion for summary judgment of
+defendants-appellees .... This civil rights case arises out of appellees' failure
+to hire appellant for a position at the Veterans Administration Medical
+Center in ....
+2. Appellant's principal claims on appeal appear to be that the district
+court abused its discretion, misinterpreted the facts in this case, misapplied
+various laws and misinterpreted Congress's intent in enacting Title VII of
+the Civil Rights Act of 1964.
+3. We have carefully examined all of appellant's claims, and they are
+without merit. We affirm substantially for the reasons stated in the thorough
+opinions of ... dated October 12, 1989 and December 21, 1989.
+4. The order of the district court is affirmed.
+
+35
+
+APPENDIXC
+The following are examples of standards of review.
+We review a district court's denial of a motion for a new trial for an abuse
+of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 1985). The
+reviewing court must consider whether the decision of the lower court "was
+based on a consideration of the relevant factors and whether there has been
+a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe,
+401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
+
+*
+
+*
+
+*
+
+Section 10(j) of the National Labor Relations Act, 29 U.S.c. § 160(j)
+(1982), authorizes district courts to grant interim injunctive relief to restore
+and preserve the status quo pending the Board's decision on the merits of
+an underlying unfair labor practice complaint. E.g., Asseo v. Pan American
+Grain Co., Inc., 805 F.2d 23, 25 (1st Cir. 1986); Fuchs v. Hood Industries,
+Inc., 590 F.2d 395, 397 (1st Cir. 1979). Under this statutory scheme, the
+district court is limited to the determination of whether there is (1)
+reasonable cause to believe that a violation of the Act, as alleged, has been
+committed, and (2) whether injunctive relief is appropriate under the
+circumstances. Asseo, 805 F.2d at 25; Maram v. Universidad Interamericana
+de Puerto Rico, 722 F.2d 953,959 (1st Cir. 1983).
+As we have previously stated, on appeal, this Court's review is:
+limited to [determining] whether the district court was clearly erroneous
+in finding reasonable cause to believe that there were unfair labor
+practices and whether it abused its discretion in granting injunctive relief.
+Union de Tronquistas de Puerto Rico v. Arlook, 586 F.2d 872,876 (1st Cir.
+1978).
+
+Asseo, 805 F.2d at 25. With these standards firmly in mind, we turn now to
+the merits of the appeal.
+
+*
+
+*
+
+36
+
+*
+
+In reviewing findings by bankruptcy courts, we and the district courts
+may only reverse factual findings where we determine that they are clearly
+erroneous. In re Killebrew, 888 F.2d 1516, 1519 (5th Cir. 1989). Legal
+determinations, of course, we review de novo. In re Compton, 891 F.2d 1180,
+1183 (5th Cir. 1990). As this appeal hinges upon whether [the debtor]
+intentionally deceived [the creditor]-a factual determination-we apply
+the clearly erroneous standard. Cf. In re Rubin, 875 F.2d 755, 758 (9th Cir.
+1989).
+
+37
+
+APPENDIXD
+The following are examples of concluding paragraphs:
+For the foregoing reasons, the case is remanded to the district judge to
+clarify as expeditiously as feasible whether he would impose the same
+sentence if the lower Guidelines range of 10-16 months applied. In the
+event that Judge
+indicates that he would not impose a 16 month
+sentence if criminal history category IV applied, [defendant]' ifhe wishes to
+do so, may renew his appeal by filing a new notice of appeal within ten days
+of the judge's ruling on remand and need not file additional briefs. This
+panel retains jurisdiction in the event of such appeal.
+
+*
+
+*
+
+*
+
+*
+
+*
+
+*
+
+We therefore grant the petition for review and order the [agency] not to
+initiate further prosecutions under the Penalty Rules until the agency has
+engaged in further rulemaking in accord with section 553. Nonetheless,
+pursuant to our remedial powers, we hold that the [agency] is free to hold
+pending cases in abeyance and resume prosecution upon the repromulgation
+of a scheme for adjudicating administrative civil penalty actions under
+section 1475.
+For the reasons stated, we order the district court to do the following:
+1) The court will reconsider its order in respect to VOC cleanup; it will
+amend that order to require [defendant] to clean up VOCs in the soil at the
+... site to a level that it determines "public health" and the "public interest"
+require. 2) The court will reconsider the matter of "indirect costs," explaining, as we have set forth above, any denial of those costs as a sanction. In
+all other respects the judgment of the district court is affirmed.
+
+38
+
+APPENDIXE
+The following are examples of brief dissenting opinions:
+The reasons why I am constrained to dissent may be briefly stated.
+The question whether an anti-takeover provision provides a "special
+protection" to debentureholders cannot be answered in the negative merely
+because the "Independent Directors" decided to waive its provisions and
+approve a particular transaction. These directors were explicitly empowered to act in this fashion by virtue of the fully disclosed terms of the
+provision. A significant function of an anti-takeover provision is to serve as
+a deterrent to hostile takeovers, including takeovers which would be
+contrary to the interests of both shareholders and debentureholders. One
+cannot, I believe, fairly characterize such a provision as being "worthless"
+to the debentureholders, even though as a matter of Delaware law directors
+owe a fiduciary duty solely to shareholders. The anti-takeover provision was
+therefore a "special protection" to debentureholders, albeit a limited one.
+Federal securities laws do not impose an obligation to advise investors
+of the fundamentals of corporate governance. The disclosure required by
+the federal securities laws is not a "rite of confession or exercise in common
+law pleading. What is required is the disclosure of material objective factual
+matters." Data Probe Acquisition Corp. v. Data Lab, Inc. 722 F.2d 1, 5-6 (2d
+Cir. 1983), cert. denied, 465 u.s. 1052, 104 S. Ct. 1326, 79 L. Ed. 2d 722
+(1984). Especially is this so where, as here, the investor complainants are
+sophisticated financial institutions making major investments. The role of
+the federal securities laws is not to remedy all perceived injustices in
+securities transactions. Rather, as invoked in this case, it proscribes only the
+making of false and misleading statements or material omissions.
+Whether the Independent Directors breached an implied duty of good
+faith or otherwise acted contrary to their fiduciary obligations are matters
+of state law. Here, the federal claims were asserted only conditionally, the
+express condition being the failure of the state law claims. These state
+claims were properly dismissed by the court below for lack of pendent
+jurisdiction.
+39
+
+Believing no valid federal claim to be present, I would affirm essentially
+for the reasons set forth in the Opinions of the Magistrate and District
+Court.
+
+*
+
+*
+
+*
+
+In many respects this case represents good police work. It is clear,
+however, that defendants were of abnormally low intelligence and that
+Miranda warnings were not given. Even though appellants had not been
+taken in custody, it is also true they had not been furnished counsel or
+waived same. As the district court held, the government agents should have
+taken furthel precautions to insure that [defendants] understood the situation and their rights. See Henry v. Dees, 658 F.2d 406,411 (5thCir.1981).
+
+40
+
+-----~--
+
+-------
+
+APPENDIXF
+The following are examples of brief, narrowly written concurring
+opinions:
+I concur with most of} udge
+'s thoughtful discussion of the issues
+in this case. I am fully in accord with Part IIA and C and the rationale with
+respect to the claims against the [defendant] and the state law claims. I agree
+also with the statement in Part IIB that "[d]ue process concerns are clearly
+not implicated in [defendants'] actions with regard to the letter from .... "
+I agree further that there is "no support ... for plaintiff's fanciful conspiracy
+theory."
+I find no necessity, however, to adopt the statement quoted from Rice v.
+Ohio Department ofTransportation, 887 F.2d 716, 719 (6thCir.1989), which
+may beinterpreted to mean that the doctrine of Will v. Michigan Department
+ofState Police, -u .S.-, 109 S. Ct. 2304, 105 LEd. 2d 45 (1989), somehow
+bars suits under § 1983 against state officials when those officials are being
+sued in their individual capacities. I do not view Will as barring § 1983 suits
+against state officials whenever the suits concern actions taken in their
+official capacities. Instead, I believe that Will bars suits against state officials
+only when those officials are sued in their official capacities.
+Accordingly, I would affirm the decision of the district court that under
+the facts of this case defendants ... enjoy qualified immunity.
+
+*
+
+*
+
+*
+
+I concur with the results reached by Judge _ _ and in his opinion
+except as to his analysis of the First Amendment issue. For the reasons stated
+in my concurring opinion in [citation], I believe the ... regulations are
+permissible time, place, and mannerrestrictions on speech in the [plaintiffs]
+profession.
+
+Ru.s. GOVERNMENT PRINTING OJIIItCE: 1m • 454-615112763 41
+
+The Federal Judicial Center is the research, development, and training arm of the federal judicial system. It was established by Congress
+in 1967 (28 U.S.c. §§ 620-629), on the recommendation of the
+Judicial Conference of the United States.
+By statute, the Chief Justice of the United States is chairman of
+the Center's Board, which also includes the director of the Administrative Office of the U.S. Courts and six judges elected by the Judicial
+Conference.
+The Center's Continuing Education & Training Division provides
+educational programs and services for all third branch personnel.
+These include orientation seminars, regional workshops, on-site
+training for support personnel, and tuition support.
+The Innovations & Systems Development Division designs and
+tests new technologies, especially computer systems, that are useful for
+case management and court administration. The division also contributes to the training required for the successful implementation of
+technology in the courts.
+The Publications Division edits and coordinates the production of
+all Center publications, including research reports and studies, educational and training publications, reference manuals, and periodicals.
+The Center's Information Services Office, which maintains a specialized collection of materials on judicial administration, is located
+within this division.
+The Research Division undertakes empirical and exploratory
+research on federal judicial processes, court management, and
+sentencing and its consequences, usually at the request of the Judicial
+Conference and its committees, the courts themselves, or other
+groups in the federal court system.
+The Special Educational Services Division is responsible for the
+production of educational audio and video media, educational publications, and special seminars and workshops. The Federal Judicial
+History Office, created in response to Congress's mandate that the
+Center conduct programs relating to judicial branch history, is located
+within this division.
+
+
\ No newline at end of file
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+The Federal Judicial Center has published this manual to help
+judges organize opinions and improve their opinion writing.
+Prepared with the assistance of judges, law professors,
+and writers, the manual offers advice on writing tailored
+to the needs of the federal judiciary.
+
+One Columbus Circle NE
+Washington, DC 20002-8003
+fjc.dcn • fjc.gov
+
+Judicial Writing Manual
+A Pocket Guide for Judges
+Second Edition
+
+Federal Judicial Center
+
+Judicial Writing Manual
+A Pocket Guide for Judges
+
+Second Edition
+
+Fourth printing 2020
+Third printing 2017
+Second printing 2013
+Second edition 2013
+First edition 1991
+
+Federal Judicial Center
+Thurgood Marshall Federal Judiciary Building
+One Columbus Circle NE
+Washington, DC 20002
+fjc.dcn • fjc.gov
+
+This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory
+mission to develop educational materials for the judicial branch. While the Center regards the
+content as responsible and valuable, this publication does not reflect policy or recommendations of
+the Board of the Federal Judicial Center.
+
+Contents
+Editor’s Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
+Foreword to the First Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
+Foreword to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ix
+I. Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
+II. Determining the Scope of the Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
+Three types of decisions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
+Factors to consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
+Facts and issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
+Audience  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
+Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
+III. Preparing to Write the Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
+Developing outlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
+Using law clerks  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
+Reviewing materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
+IV. Writing the Opinion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
+Structure  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
+Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
+Statement of issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
+Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
+Discussion of legal principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
+Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
+Order of discussion of issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
+Issues to address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
+Alternative holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
+Case citations  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
+Secondary sources  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
+Quotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
+Avoiding advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
+Treatment of the court below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
+Disposition and instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
+iii
+
+V. Editing the Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
+Problems in judicial writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
+Wordiness  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
+Lack of precision and clarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
+Poor organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
+Cryptic analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
+Pomposity and humor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
+Guidelines for good writing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
+Eliminate unnecessary words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
+Be succinct and direct  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
+Use plain English  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
+Use of footnotes and citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
+Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
+Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
+Careful editing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
+Reread and revise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
+Put the draft aside and come back to it with a fresh perspective . . 26
+Ask a new reader to criticize a draft . . . . . . . . . . . . . . . . . . . . . . . . . . 26
+VI. Writing Joint Opinions, Dissents, and Concurrences  . . . . . . . . . . . . . . . . . 27
+Joint opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
+Commenting on a draft prepared by another judge . . . . . . . . . . . . . . . . 28
+Dissenting opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
+Concurring opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
+VII. Reading About Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
+Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
+Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
+Appendix A: Sample Memorandum Opinion  . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
+Appendix B: Sample Summary Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
+Appendix C: Sample Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
+Appendix D: Sample Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
+Appendix E: Sample Brief Dissenting Opinions  . . . . . . . . . . . . . . . . . . . . . . . . . 41
+Appendix F: Sample Brief Concurring Opinions  . . . . . . . . . . . . . . . . . . . . . . . . 43
+iv
+
+Editor’s Note
+The Center prepared the first edition of the Judicial Writing Manual in 1991
+under the guidance of the following Board of Editors:
+• Alvin B. Rubin, Chair
+U.S. Circuit Judge
+• Wilfred Feinberg
+U.S. Circuit Judge
+• John C. Godbold
+U.S. Circuit Judge
+Director Emeritus, Federal Judicial Center
+• James Dickson Phillips, Jr.
+U.S. Circuit Judge
+• Louis H. Pollak
+U.S. District Judge
+• William W Schwarzer
+U.S. District Judge
+Director Emeritus, Federal Judicial Center
+• Clifford Wallace
+U.S. Circuit Judge
+• Patricia M. Wald
+Chief U.S. Circuit Judge
+• A. Leo Levin
+Professor, University of Pennsylvania
+Director Emeritus, Federal Judicial Center
+• Paul J. Mishkin
+Professor, University of California, Berkeley
+• Stephen J. Wermiel
+The Wall Street Journal
+The Center and the Board of Editors were assisted in preparing the
+first edition by the following judges, who participated in telephone interviews to discuss their experience with and views on judicial writing:
+Ruggero J. Aldisert, Richard S. Arnold, Stephen Breyer, Frank M. Coffin,
+John J. Gibbons, Robert E. Ginsberg, Ruth Bader Ginsburg, Frank M.
+Johnson, Jr., Robert E. Keeton, Lloyd King, James K. Logan, Prentice H.
+Marshall, Monroe G. McKay, Richard A. Posner, Joseph T. Sneed, Gerald B.
+Tjoflat, Jack B. Weinstein, and John Minor Wisdom. Their thoughtful responses contributed substantially to this manual.
+v
+
+Foreword to the First Edition
+The link between courts and the public is the written word. With rare
+exceptions, it is through judicial opinions that courts communicate with
+litigants, lawyers, other courts, and the community. Whatever the court’s
+statutory and constitutional status, the written word, in the end, is the
+source and the measure of the court’s authority.
+It is therefore not enough that a decision be correct—it must also be
+fair and reasonable and readily understood. The burden of the judicial
+opinion is to explain and to persuade and to satisfy the world that the
+decision is principled and sound. What the court says, and how it says it,
+is as important as what the court decides. It is important to the reader.
+But it is also important to the author because in the writing lies the test of
+the thinking that underlies it. “Good writing,” Ambrose Bierce said, “essentially is clear thinking made visible.” Ambrose Bierce, Write It Right
+6 (rev. ed. 1986).
+To serve the cause of good opinion writing, the Federal Judicial Center has prepared this manual. It is not held out as an authoritative pronouncement on good writing, a subject on which the literature abounds.
+Rather, it distills the experience and reflects the views of a group of experienced judges, vetted by a distinguished board of editors. No one of
+them would approach the task of writing an opinion, or describe the
+process, precisely as any of the others would. Yet, though this is a highly
+personal endeavor, some generally accepted principles of good opinion
+writing emerge and they are the subject of this manual.
+We hope that judges and their law clerks will find this manual helpful and that it will advance the cause for which it has been prepared.
+William W. Schwarzer
+Director Emeritus, Federal Judicial Center
+
+vii
+
+Foreword to the Second Edition
+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
+
+ix
+
+I. Introduction
+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
+judges, academics, other lawyers, 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 for it.
+The opinion should fairly, clearly, and accurately state the significant
+facts and relevant rules of law and demonstrate by its analysis the reasonableness of its conclusions. Misstating significant facts or authorities
+is a mark of carelessness, and it undermines the opinion’s authority and
+integrity. Unclear or ambiguous writing reflects the author’s lack of clear
+thinking and defeats the opinion’s purpose.
+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 their 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 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.
+This manual should also help experienced judges take a fresh look
+at their approaches to writing and their styles. Professor Robert Leflar
+wrote:
+Pride of authorship is by no means an unmitigated evil. . . . [T]his
+pride can drive a man to hard work and with meticulous effort.
+The poorest opinions are apt to be written by judges who take no
+pride in them, who regard the preparation of them as mere chores.
+Pride in work well done is a proper incident of good craftsmanship in any field of work, including law. An opinion in which the
+author takes no pride is not likely to be much good. 1
+1. Robert Leflar, Some Observations Concerning Judicial Opinions, 61 Colum. L.
+Rev. 810, 813 (1961).
+1
+
+Judicial Writing Manual, Second Edition
+
+This manual is not intended to proclaim the right way of writing an
+opinion. Anyone who attempts to announce authoritative rules of good
+writing invites debate and comparison. As one judge said, “I have one
+overarching rule. That is, don’t have any such rules.” Indeed, in a leading
+text on good writing, E. B. White acknowledged that “[s]tyle rules of this
+sort are, of course, somewhat a matter of individual preference, and even
+the established rules of grammar are open to challenge.” 2
+Instead, the purpose of the manual is to stimulate judges to think
+as systematically about writing their opinions as they do about deciding
+their cases. Judges should ask themselves: Am I writing this way because
+this is how I’ve always done it, or is there a better way? Is there a reason
+for organizing the opinion this way? For including these particular facts?
+For discussing this issue at length? For citing this case? Is this sentence
+clear? Are all the words in it necessary?
+In the following parts, the manual takes readers through the opinion-writing process. Part 2 suggests issues to consider in deciding whether to write a formal opinion, a memorandum, or an unpublished opinion.
+Part 3 discusses steps a judge should take before starting to write. Part 4
+discusses the organization and content of an opinion. Part 5 offers suggestions on language, style, and editing. Part 6 presents considerations
+for cowriting an opinion, commenting on the opinions of other members of the court, and writing dissenting and concurring opinions. Part 7
+contains a list of books and articles that may be useful to those who want
+to read more about judicial writing. The appendices provide examples of
+some of the writings discussed in the manual, such as summary orders
+and dissenting opinions.
+
+2. William Strunk, Jr., & E. B. White, The Elements of Style xvii (4th ed. 2000).
+2
+
+II. Determining the Scope of the Opinion
+A judicial opinion informs parties of the outcome of their case and articulates the legal principles on which the decision is based in order to
+guide the bench, the bar, academia, and the public. Because written decisions serve both case-deciding and law-making functions, they range
+in form from one-sentence, unpublished summary orders to formally
+structured, citation-laden, full-dress opinions. An opinion that is intended only to inform the parties of the outcome of their dispute should not
+be as elaborate as one intended to serve as a precedent. Before beginning
+to write, judges should decide what purpose the opinion will serve and
+how to write it to suit that purpose.
+Three types of decisions
+This manual will refer to three types of written decisions: full-dress opinions, memorandum opinions, and summary orders.
+Full-dress opinions are those that present a structured discussion of
+the facts, legal principles, and governing authorities involved in a case.
+The significance or number of the issues presented in a case, the novelty
+of the question it poses, and the complexity of the facts are among the
+factors that determine whether an opinion requires full-dress treatment.
+Memorandum opinions are appropriate if the decision does not require a comprehensive, structured explanation but still needs some explanation of the rationale. They are generally brief and informal and may or
+may not be published. Per curiam opinions are generally included in this
+category. Appendix A contains an example of a memorandum opinion.
+Summary orders simply state the disposition of the case. They sometimes include a brief statement of findings and conclusions, but often
+provide little or no explanation. Summary orders are usually unpublished. Appendix B contains an example of a summary order.
+The next section discusses some of the factors a judge should consider in determining what kind of opinion to write.
+Factors to consider
+Three factors influence the scope and style of an opinion: the complexity
+of the facts and nature of the legal issues, the intended audience, and
+
+3
+
+Judicial Writing Manual, Second Edition
+
+whether the opinion will be published. Although the manual addresses
+these factors separately, they are interrelated.
+Facts and issues
+The complexity of the facts and the nature of the legal issues are the principal factors that determine the kind of opinion required. If the precedents are clear and the material facts are not complicated, the scope
+of the opinion will be limited. If the controlling law is uncertain or the
+material facts are complex, exposition and analysis are needed to explain
+the reasons for the court’s decision. Some cases that present complex fact
+patterns may require lengthy discussion of the facts even though the applicable law may be simple. Other cases that raise novel legal issues may
+require extended analysis of law and policy.
+The scope of an opinion will be influenced by how well developed
+the law is on the matter at issue. Judges should consider whether the
+issue has previously been decided authoritatively and whether another
+opinion would aid in the development or explanation of the law. If the issue has been thoroughly discussed in prior opinions, the judge need not
+trace the origins of the law or elaborate on its interpretation. In some cases, it is sufficient to affirm a decision for the reasons stated by the court
+below. If the decision merely closes a gap in existing law, little more is
+needed than an explanation of the applicable principles and the reasons
+for the court’s choice among them. If, however, the decision contributes
+to the development of the law, a brief, published per curiam or memorandum opinion is appropriate. A summary order may be sufficient if
+clear existing law is simply being applied to facts that are undisputed or
+that are made indisputable on appeal because, for example, they are jury
+findings supported by substantial evidence.
+When, however, an opinion involves less developed areas of the law
+and lays down a new rule or modifies an old one, the judge must think
+not only about the decision’s rationale but also about its impact as precedent. The judge should discuss and analyze the precedents in the area,
+the new direction the law is taking, and the effect of the decision on existing law. Even if it appears that the litigants do not need a detailed statement of the facts, the opinion should present sufficient facts to define
+for other readers the precedent it creates and to delineate its boundaries.
+
+4
+
+Judicial Writing Manual, Second Edition
+
+The relevant precedents—and the relevant policies—should be analyzed
+in sufficient detail to establish the rationale for the holding.
+Audience
+Opinions are written primarily for the litigants and their lawyers, and for
+the lower courts or agencies whose decisions they review. If an opinion is
+addressed to the parties, it should provide them with a fair and accurate
+statement of what was before the court for decision, what the court decided, and what the reasons for the decision were. This can generally be
+accomplished without a full-dress opinion. The parties will be familiar
+with the facts and will generally not be interested in an extensive exploration of the law, other than what is needed to give the losing party a
+clear explanation for the result.
+The judge must also ask whether the opinion has something to say
+to others besides the parties. Opinions intended to inform other audiences may require additional factual development and legal analysis.
+How much analysis is required, and how detailed it must be, depends
+on the subject matter and the probable audience. Judges may assume
+a certain level of familiarity with the law on the part of lawyers. But if
+a case involves an arcane area of law familiar primarily to specialists—
+tax, labor, or antitrust law, for example—a thorough discussion of the
+facts and legal background will be needed, and the judge should avoid
+the use of technical language and should define any technical terms that
+must be used.
+An opinion remanding a case must tell the lower court what is expected on remand. An opinion that sets guidelines for trial courts to follow must state the factual basis, legal rationale, and policy foundation of
+the guidelines sufficiently so that trial judges can apply them correctly.
+The judge needs to consider whether a statement of facts and legal
+analysis that adequately explain the decision to the parties will also enable a higher court to understand the basis for the decision. When the
+decision is based on complex facts, a more elaborate explanation than is
+necessary for the parties may be helpful to the appellate court. And when
+the decision involves novel issues or an emerging area of law, it is appropriate to trace the prior development of the law and to explain the legal
+and policy rationales at some length. Opinions should not, however, be
+turned into briefs or vehicles for advocacy.
+5
+
+Judicial Writing Manual, Second Edition
+
+Members of the general public will rarely read opinions. But reporters from the media will communicate what they believe to be the substance of an opinion that strikes them as being of public interest. When
+an opinion addresses an issue of general public interest or is likely to
+attract media attention, it should be written in a manner that will ensure
+it cannot be misunderstood. The mark of a well-written opinion is that it
+is comprehensible to an intelligent layperson.
+Publication
+The courts of appeals have adopted rules, internal operating procedures,
+and other policies concerning publication and non-publication of opinions. Some of the policies specify criteria for determining whether an
+opinion should be published. For example, D.C. Circuit Rule 36(c)(2)
+establishes the following publication criteria:
+An opinion, memorandum, or other statement explaining the basis for this court’s action in issuing an order or judgment will be
+published if it meets one or more of the following criteria:
+(A) with regard to a substantial issue it resolves, it is a case of
+first impression or the first case to present the issue in this court;
+(B) it alters, modifies, or significantly clarifies a rule of law
+previously announced by the court;
+(C) it calls attention to an existing rule of law that appears to
+have been generally overlooked;
+(D) it criticizes or questions existing law;
+(E) it resolves an apparent conflict in decisions within the circuit or creates a conflict with another circuit;
+(F) it reverses a published agency or district court decision,
+or affirms a decision of the district court upon grounds different
+from those set forth in the district court’s published opinion;
+(G) it warrants publication in light of other factors that give it
+general public interest.
+
+Similar criteria are included in First Circuit Rule 36(b)(1); Fourth Circuit Rule 36(a); Fifth Circuit Rule 47.5.1; Sixth Circuit Internal Operating Procedure 32.1(b); Ninth Circuit Rule 36-2; and Federal Circuit
+Internal Operating Procedure 10.
+Other circuits have more general guidelines, giving judges latitude to
+decide whether to publish opinions. The Third Circuit, for example, has
+6
+
+Judicial Writing Manual, Second Edition
+
+“two forms of opinions: precedential and not precedential,” and “[p]recedential opinions are posted on the court’s internet website.” 3 The Second Circuit permits disposition by summary order “[w]hen a decision in
+a case is unanimous and each panel judge believes that no jurisprudential purpose is served by an opinion . . . .” 4 Otherwise, written opinions,
+including per curiam opinions, are published. 5
+In the district courts, the decision to publish is entirely in the judge’s
+discretion. (Note, however, that some legal publishers, including Westlaw, put certain district court orders and opinions on line whether or not
+the judge designates them for publication and even sometimes when a
+judge states that the order or opinion is “not for publication” or “not to
+be cited.” The publishers base their decision on whether they think that
+the order or opinion is significant or otherwise of interest.) Because decisions of district judges are merely persuasive authority—that is, they are
+not binding precedent even in their own districts—publication of such
+decisions should be the exception. In addition, time constraints argue
+against writing formal opinions unless the decision involves a novel or
+complex issue or a matter of public importance and thus may be useful
+to attorneys and judges or be of interest to the public.
+Because unpublished decisions are written primarily for the parties,
+they will require little or no elaboration of the facts and law. Often they
+will take the form of summary orders or memorandum opinions. The
+determination as to whether a disposition should be published or unpublished should be made as soon as possible, so that the judge who
+writes the opinion will not spend an undue amount of time on it if publication is not warranted.
+
+3. 3d Cir. I.O.P. ch. 5.1, 5.2. See also 7th Cir. R. 32.1 (“It is the policy of the circuit to
+avoid issuing unnecessary opinions”); 8th Cir. I.O.P. IV.B (“The panel determines whether the opinion . . . is to be published or unpublished”); 11th Cir. I.O.P. 6 (“Opinions that
+the panel believes to have no precedential value are not published”).
+4. 2d Cir. I.O.P. 32.1.1.
+5. See also 10th Cir. R. 36.1 (permitting disposition without opinion when “the case
+does not require application of new points of law that would make the decision a valuable
+precedent”).
+7
+
+III. Preparing to Write the Opinion
+Before beginning to write an opinion, judges should think through what
+they want to say and how they want to say it. They should consider the
+scope of the opinion, the prospective audience, and whether the opinion will be published. They should marshal the material facts, identify
+the issues and the applicable rules of law, and determine the appropriate
+form of judicial relief. In short, they must break the case down into its
+components. A judge should have reached a decision—if only a tentative one—before beginning to write an opinion. Setting down the reasons in writing then constitutes the process of justifying the decision.
+As Judge Ruggero Aldisert wrote, “If a judge wants to write clearly and
+cogently, with words parading before the reader in logical order, the
+judge must first think clearly and cogently, with thoughts laid out in
+neat rows.” 6
+This does not mean that judges will not change their minds after
+they have started to write. Sometimes judges may decide in advance
+where they want to go, but in the process of writing discover that they
+cannot get there. Justice Roger Traynor wrote that he
+found [no] better test for the solution of a case than its articulation in writing, which is thinking at its hardest. A judge, inevitably preoccupied with the far-reaching effect of an immediate
+solution as a precedent, often discovers that his tentative views
+will not jell in the writing. He wrestles with the devil more than
+once to set forth a sound opinion that will be sufficient unto more
+than the day. 7
+
+Nevertheless, the writing should reflect only the final decision and the
+reasons for it. If the decision is a close one, the opinion should say so,
+but it should not record every step and misstep the writer took along
+the way.
+Developing outlines
+Outlines help to organize a writer’s thoughts. For judicial writing, they
+may take a variety of forms:
+6. Ruggero J. Aldisert, Opinion Writing 11 (2d ed. 2009).
+7. Roger Traynor, Some Open Questions on the Work of State Appellate Courts, 24
+U. Chi. L. Rev. 211, 218 (1957).
+9
+
+Judicial Writing Manual, Second Edition
+
+• a formal, written outline prepared by the judge or a law clerk;
+• a rough sketch of important facts, issues, and points to discuss;
+• a bench memorandum prepared by a law clerk in advance of oral
+argument, which the judge has marked up after the argument and
+conference;
+• a brief checklist; or
+• perhaps only an unwritten mental framework.
+Whatever the outline’s form, the point is that judges, like all other good
+writers, must organize their thoughts before starting to write.
+A good time to prepare an outline is shortly after the conference at
+which the case is discussed and the opinion assigned, when the judge’s
+own ideas and those of the other judges are fresh in mind. The outline can
+then also serve as an informal record of the discussion at the conference.
+Using law clerks
+Law clerks can provide substantial assistance to the judge faced with
+writing an opinion. Discussions with law clerks are helpful in planning
+the opinion and developing the outline. The opportunity to test one’s
+thoughts in vigorous exchanges with the clerks throughout the opinion-writing process is invaluable. The judge and the law clerks can discuss and criticize the opinion as it develops, ferret out error and ambiguity, and polish the final product.
+In the writing process itself, judges use their law clerks in different ways. Some limit the clerk’s work to performing research; preparing bench memos; and editing, cite-checking, and commenting on the
+judge’s drafts. Some assign the writing of the first draft to a law clerk in
+routine cases only; others have clerks write first drafts in even the most
+complex cases, having found that working from a draft makes the task of
+writing the opinion easier. A clerk assigned to write the first draft should
+use an outline developed by or with the judge, and should understand
+the scope, organization, and probable outcome of the opinion.
+Many judges, having found that it takes more time to work with a
+clerk’s draft, write their own draft, then polish it into the final product.
+Some judges invite the law clerk to rewrite the judge’s first draft before
+the judge returns to it for preparation of the final version. Working with
+
+10
+
+Judicial Writing Manual, Second Edition
+
+electronic documents facilitates this give-and-take between judges and
+law clerks in drafting opinions.
+The process the judge uses depends on his or her own work habits
+and style and on the capabilities of the law clerk. The judge must always
+remember, however, that the law clerk usually is fresh out of law school
+and has little practical experience. Even a distinguished academic record
+does not qualify a law clerk to practice the craft of judging, to draw the
+fine line between reversible and harmless error, to make the sometimes
+delicate assessment of the effect of precedent, or to recognize subtle distinctions in the applicable law. It is the unusual law clerk who has perfected a writing style that makes for a satisfactory opinion. Law clerks’
+fact statements, analysis, and conclusions may require major revisions.
+Judges should not simply edit draft opinions. No matter how capable the
+clerk, the opinion must always be the judge’s work.
+Reviewing materials
+Little need be said about the materials to review. The judge will, of
+course, have the briefs of the parties and the law clerk’s bench memorandum. When an opinion turns on the specifics of testimony or on what
+occurred in the courtroom, there may be no substitute for reading the
+relevant portions of the transcript; rarely will excerpts or summaries in
+briefs convey the significance of these events fairly and fully. If an exhibit
+is crucial, it should be examined. Reference to the record may also be
+necessary to determine the precise procedural course by which an appeal
+has reached the court and the relevant proceedings below. The judge will
+therefore want to have access to the record while preparing the opinion.
+Listening to an audio recording of oral argument, if one is available, can
+help refresh the judge’s memory of the significant issues and the arguments made.
+
+11
+
+IV. Writing the Opinion
+A judicial opinion should identify the issues presented, set out the
+relevant facts, and apply the governing law to produce a clear, wellreasoned decision of the issues that must be resolved. The guidelines that
+follow are intended to help judges write opinions that will meet these
+requirements.
+Structure
+A full-dress opinion should contain five elements:
+1. an introductory statement of the nature, procedural posture, and
+result of the case;
+2. a statement of the issues to be decided;
+3. a statement of the material facts;
+4. a discussion of the governing legal principles and resolution of
+the issues; and
+5. the disposition and necessary instructions.
+The organization and style of opinions will, of course, vary from case to
+case, but this is the framework on which to build.
+Clear and logical organization of the opinion will help the reader understand it. The use of headings and subheadings or Roman numerals, or
+other means of disclosing the organization to the reader, is always helpful, particularly when the opinion is long and the subject matter complex.
+Headings, subheadings, and subdivisions not only provide road signs for
+the reader, they also help the writer organize his or her thoughts and test
+the logic of the opinion. They also enable a judge who wishes not to join
+some part of the opinion to identify it. And they assist in the indexing
+and classification of opinions and their retrieval by researchers.
+The following sections discuss each of the elements of an opinion.
+Introduction
+The purpose of the Introduction is to orient the reader to the case. It
+should state briefly what the case is about, the legal subject matter, and
+the result. It may also cover some or all of the following:
+1. The parties: The parties should be identified, if not in the Introduction, then early in the opinion, preferably by name, and
+13
+
+Judicial Writing Manual, Second Edition
+
+names should be used consistently throughout. (The use of legal
+descriptions, such as “appellant” and “appellee,” tends to be confusing, especially in multi-party cases.)
+2. The procedural and jurisdictional status: The basis for jurisdiction, relevant prior proceedings, and how the case got before the
+court should be outlined.
+3. The issue: The issue or issues to be decided should be identified,
+unless they are so complex that they are better treated in a separate section.
+Summarizing the holding at the outset can save time for readers,
+particularly researchers who will be able to determine immediately
+whether to read the rest of the opinion. Providing a terse summary of the
+holding at the start of the opinion also helps the judge state it precisely
+and succinctly. The final version of the Introduction may be best written
+after the opinion is completed, when the judge has refined the issues, the
+conclusions, and the supporting analysis.
+Some judges prefer to place the holding at the end, believing that an
+opinion will be more persuasive if the reader must read through it before
+learning the outcome.
+Statement of issues
+The statement of issues is the cornerstone of the opinion; how the issues
+are formulated determines which facts are material and what legal principles govern. Judges should not be bound by the attorneys’ analyses;
+they should state the issues as they see them, even if this differs from how
+the lawyers state them. That an issue has been raised by the parties does
+not mean that it must be addressed in the opinion if it is not material to
+the outcome of the case.
+The statement of issues should be brief. Although an issue or two
+can often be sufficiently identified in the Introduction, the number or
+complexity of the issues in some cases may require separate sections.
+The statement of issues may come before or after the statement of
+facts. Stating the issues first will make the fact statement more meaningful to the reader and help focus on material facts. In some cases, however,
+it may be difficult to state the issues clearly unless the reader is familiar
+with the material facts. This may be true, for example, when the issue is
+procedural and requires an explanation of the context.
+14
+
+Judicial Writing Manual, Second Edition
+
+The statement of issues should not be confused with recitals of the
+parties’ contentions. Lengthy statements of the parties’ contentions, occasionally found in opinions, are not a substitute for analysis and reasoning, and they should be avoided.
+Statement of facts
+In a single-issue case, the facts can be set forth in one statement early in
+the opinion. But when a case raises a series of issues, some facts may not
+be relevant to all of the issues. This situation confronts the judge with the
+difficult task of presenting enough facts at the outset to make the opinion
+understandable without later repeating facts when discussing particular
+issues that require further elaboration. In such a case, the initial statement of facts can be limited to necessary historical background, and the
+specific decisional facts can be incorporated in the analysis of the issues
+they concern.
+Only the facts that are necessary to explain the decision should be
+included, but what is necessary to explain the decision is not always obvious and may also vary depending on the audience. An unpublished
+memorandum opinion intended only for the parties does not require
+background or historical facts; the opinion need only identify the facts
+that support the conclusion. However, background facts may sometimes
+be helpful in giving the context of a decision and explaining its rationale.
+And opinions that are likely to be read by audiences other than the parties may require lengthier fact statements to provide the context for the
+decision and delineate its scope.
+Excessive factual detail can be distracting. Dates, for example, tend
+to confuse readers and should not be included unless they are material to the decision or helpful to its understanding. Although brevity and
+simplicity are always desirable, they are secondary to the need for a full
+and fair fact statement. Facts significant to the losing side should not
+be omitted.
+Some judges like to include facts that, although not material to
+the decision, add color. “We’ve got to have some fun,” one judge said.
+Some feel that this is a mark of the author’s flair and improves readability. There is the obvious danger, however, that the reader may think
+the decision is based on these facts even though they are not material.
+Moreover, colorful writing—though appealing to the author—may be
+15
+
+Judicial Writing Manual, Second Edition
+
+seen by the parties as trivializing the case. It must therefore be used
+with caution.
+Above all, the statement of facts must be accurate. The judge should
+not assume that the facts recited in the parties’ briefs are stated correctly.
+There is no substitute for checking fact references against the record. No
+matter how good the lawyers are, the judge may find that the way facts
+are stated in the record differs from the way they are stated in the briefs.
+If time does not permit the judge to read the entire record, a law clerk
+should be assigned that task, with instructions to mark all the relevant
+parts for the judge to review.
+Discussion of legal principles
+The discussion of legal principles is the heart of the opinion. It must
+demonstrate that the court’s conclusion is based on reason and logic. It
+should convince the reader of the correctness of the decision by the power of its reasoning, not by advocacy or argument. The judge must deal
+with arguably contrary authorities and opposing arguments, and must
+confront the issues squarely and deal with them forthrightly. Although
+the opinion need not address every case and contention, the discussion
+of legal principles must be sufficient to demonstrate to the losing party
+that the court has fully considered the essentials of its position.
+The following guidelines apply to the discussion of legal principles.
+Standard of review
+The opinion should specify the controlling standard of review at the
+outset of the discussion of legal principles. Unless the reader is told
+whether review is under the de novo, the clearly erroneous, or the abuse
+of discretion standard, the meaning of the decision may be obscure.
+Moreover, specifying the standard of review helps the judge discipline
+the analysis.
+Appendix C provides examples of clearly stated standards of review.
+Order of discussion of issues
+Just as the judge should not be wedded to counsel’s formulation of the
+issues, he or she should not feel compelled to address the issues in the
+order in which counsel presented them. The order in which to address
+
+16
+
+Judicial Writing Manual, Second Edition
+
+the issues will be dictated by the organization of the opinion. Generally,
+dispositive issues should be discussed first. The order in which those issues are taken up will be governed by the opinion’s reasoning. If non-dispositive issues are addressed at all—for educational reasons or to guide
+further proceedings—the judge should discuss them near the end of
+the opinion.
+Issues to address
+As a general proposition, an opinion should address only the issues that
+need to be resolved to decide the case. If the court determines that an
+issue not raised by the parties is dispositive and should be addressed—
+even though the parties have not properly preserved and presented it—
+the court should notify counsel and provide them with the opportunity
+to brief it.
+Issues not necessary to the decision but seriously raised by the losing
+party should be discussed only to the extent necessary to show that they
+have been considered. The line between what is necessary to the decision
+and what is not, however, is not always clear. Occasionally, a full explanation of the rationale for a decision may be enhanced by discussion of
+matters not strictly a part of the holding. Moreover, a judge may find it
+efficient to address issues not necessary to the decision if the judge can
+thereby provide useful guidance for the lower court on remand. However, judges must be careful not to decide issues that are not before them
+and to avoid advisory opinions and unnecessary expressions of views
+that may tie the court’s hands in a future case.
+Alternative holdings
+Stating separate and independent grounds for a decision adds strength
+to the decision but diminishes its value as a precedent. Professor Bernard Witkin argues that judges should avoid such rulings. 8 Statements
+such as “even if the facts were otherwise” or “assuming arguendo that
+we had not concluded thus and so” undermine the authority of the
+holding. Witkin suggests either limiting the “even if ” approach to
+opinions where doing so is necessary to achieve a majority decision or
+8. See Bernard E. Witkin, Manual on Appellate Court Opinions § 81 (1977).
+
+17
+
+Judicial Writing Manual, Second Edition
+
+avoiding it completely by phrasing the opinion in such a manner that
+the alternative ground is disposed of first and the substantial ground
+of the opinion is stated last. But in opinions that are likely to have little
+impact as precedent, there is no reason why the court should not base
+its decision on alternative grounds, without giving one precedence over
+the other.
+Case citations
+Most points of law are adequately supported by citation of the latest decision on point in the court’s circuit or the watershed case, if there is one.
+String citations and dissertations on the history of the legal principle add
+nothing when the matter is settled in the circuit. Judges should resist the
+temptation of trying to impress people with their (or their law clerks’)
+erudition.
+If there is no authority in the circuit, it is appropriate to cite authority
+on point from other circuits. If an opinion breaks new ground, however,
+the judge should marshal existing authority and analyze the evolution of
+the law sufficiently to support the new rule.
+Secondary sources
+Because law review articles, treatises and texts, and non-legal sources are
+not primary authorities, they should be cited sparingly and only to serve
+a purpose. That purpose may be to refer to a sound analysis that supports
+the reasoning of the opinion. Some authors are so well respected in their
+fields that, in the absence of a case on point, their word is persuasive.
+Occasionally, public documents or other published works will shed light
+on relevant historical or policy considerations.
+Quotations
+If something important to the opinion has been said well in an earlier
+case, quoting relevant language from the case can be more persuasive
+and informative than merely citing or paraphrasing it. The impact of
+a quote, however, is inversely proportional to its length. Judges should
+quote briefly, and only when the language makes an important point.
+While quotes should be short, they must also be fair. They must be
+used in context and accurately reflect the tenor of their source.
+
+18
+
+Judicial Writing Manual, Second Edition
+
+Avoiding advocacy
+Justifying a decision will sometimes require explaining why contrary arguments were rejected. In addressing the main contentions of the losing
+side, however, an opinion should not become an argument between the
+judge and the lawyers, other judges on the court, or the court below. If the
+losing side has raised substantial contentions, the opinion should explain
+why they were rejected. But the opinion need not refute the losing party’s
+arguments point by point or adopt a contentious or adversarial tone.
+An opinion can—and properly should—carry conviction without
+becoming a tract. Judges should put aside emotion and personal feelings,
+and avoid using adjectives and adverbs unless they convey information
+material to the decision.
+Treatment of the court below
+Appellate opinions can and should correct trial court errors and provide
+guidance on remand, but they need not attack a trial court’s wisdom or
+judgment, or even its attitude in order to reverse its decision. Moreover,
+an appellate opinion should avoid unnecessary criticism of the trial court,
+such as for failing to consider authority or resting on improper motives.
+Disposition and instructions
+Disposition of a case—and the mandate to the lower court or agency,
+when that is a part of the disposition—is the most important part of
+the concluding paragraph. Appellate courts should not speak in riddles.
+Simply to remand a case “for further proceedings consistent with the
+opinion” may leave the court below at sea. Opinions must spell out clearly what the lower courts or agencies are expected to do, without trespassing on what remains entrusted to their discretion. Thus, even if an abuse
+of discretion is found, the appellate court’s decision is on the law, and
+the lower court or agency on remand retains the authority to exercise its
+discretion properly.
+Appendix D contains examples of dispositions that provide clear instructions to the lower court or agency.
+Summary disposition may be appropriate in cases in which only
+the parties and their lawyers are interested in the result, the facts are
+
+19
+
+Judicial Writing Manual, Second Edition
+
+not complex, and the precedents are clear. It may take the form of a
+one-sentence order or a brief memorandum (see Appendix B). The
+court should state its reason for making a summary disposition. When
+a summary disposition is pursuant to circuit or local rule, that rule
+should be cited.
+
+20
+
+V. Editing the Opinion
+Problems in judicial writing
+The judges who were interviewed for this manual identified the following as the major problems in judicial writing: wordiness, lack of precision and clarity, poor organization, cryptic analysis, and pomposity
+and humor.
+Wordiness
+Wordiness means not just using two words when one will do, but trying
+to convey too much information and covering too many issues. In trying to write authoritatively, some judges belabor the obvious in lengthy
+discussions of uncontroversial propositions. Often wordiness reflects the
+writer’s failure (or inability) to separate the material from the immaterial
+and do the tedious work of editing.
+Lack of precision and clarity
+Precision and clarity are the main concerns of good writing. Some legal
+writers lack the ability to write simple, straightforward prose. Often this
+is the result of some lawyers’ tendency to overgeneralize when they are
+not sure of a legal principle or of how to state it precisely; they finesse the
+difficulty with vague expression. To write with clarity and precision, the
+writer must know exactly what he or she wants to say and must say that
+and nothing else.
+Precision in judicial writing is important because judges write for
+posterity. Once an opinion is filed, lawyers and others will read it with
+an eye to how they can use it to serve their particular purpose, no matter
+how different that may be from what the judge had in mind. Thus, it is
+important for judicial writers to think about how their words might be
+used and to write in a manner that will forestall their misuse.
+Painstaking and thoughtful editing is essential for precise writing.
+This means going over the opinion, sentence by sentence, and asking:
+What do I mean to say here, and have I said it and no more?
+Poor organization
+Another problem in judicial writing is poor organization. A sound
+opinion is the reflection of a logical process of reasoning from premises
+21
+
+Judicial Writing Manual, Second Edition
+
+through principles to conclusions. The framework in which that process
+takes place should be visible to the reader from the organization of the
+opinion. That organization will be a road map that enables the reader to
+follow the reasoning from the beginning to the end without getting lost.
+Cryptic analysis
+While brevity is desirable in an opinion, judges must elaborate their
+reasoning sufficiently so that the reader can follow it. An opinion that
+omits steps in the reasoning essential to understanding it will fail to serve
+its purposes.
+Pomposity and humor
+Judicial writing can be pompous. The judge must avoid pompous writing in an opinion, such as arcane or florid language, use of the imperial
+“we” (by a single district judge), or expressions of irrelevant erudition.
+Although the use of humor is sometimes rationalized as an antidote to
+pomposity, it works better in after-dinner speeches than in judicial opinions. In the latter, it may strike the litigants—who are not likely to see
+anything funny in the litigation—as a sign of judicial arrogance and lack
+of sensitivity. Although some judges seem to have succeeded in using
+humor in their opinions, it is a risk not to be taken lightly. Nor need it be
+taken at all, for writing can be made lively, forceful, and interesting by its
+clarity and logic.
+Guidelines for good writing
+The following guidelines are suggested to help writers of opinions recognize and avoid the problems discussed above: eliminate unnecessary
+words, be succinct and direct, and use plain English.
+Eliminate unnecessary words
+It is difficult to improve on Professor Strunk’s injunction to omit needless words:
+Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the
+same reason that a drawing should have no unnecessary lines and
+
+22
+
+Judicial Writing Manual, Second Edition
+
+a machine no unnecessary parts. This requires not that the writer
+make all sentences short, or avoid all detail and treat subjects only
+in outline, but that every word tell. 9
+
+Be succinct and direct
+Brevity promotes clarity. Writing that makes its point briefly is more
+likely to be understood than writing that is lengthy. Writing succinctly
+also forces the writer to think clearly and focus on what he or she is trying to say.
+Judicial writing should be direct. Judicial writers should use simple,
+declarative sentences and short paragraphs most of the time, but vary
+sentence length and structure where necessary for emphasis or contrast.
+They should also use the active voice and avoid such constructions as
+“it is said,” “it is argued,” and “it is well founded.” They should weed out
+gratuitous adjectives and eliminate unnecessary adverbs such as “clearly,”
+“plainly,” and “merely.”
+Use plain English
+Even complex ideas can be expressed in simple language that the lay
+reader can understand. To express an idea in simple language requires
+that the writer understand the idea fully, enabling him or her to break
+it down into its essential components. For example, although electricity
+is a complex scientific phenomenon, it can be explained in terms laypersons understand. So can tax, antitrust, and patent law. Judges should
+avoid using clichés, hackneyed phrases (“as hereinabove set forth,” for
+example), Latin expressions (“vel non,” for example), and legal jargon.
+When using terms of art, judges should consider whether they are commonly understood by their audience or require plain English definitions.
+There is a place for the elegant word, but it should not be necessary for
+the reader to have a dictionary at hand while reading an opinion. As legal
+writing expert Bryan Garner has written:
+[N]ever assume that traditional legal expressions are legally necessary. As often as not they are scars left by the law’s verbal elephantiasis, which only lately has started into remission. Use
+words and phrases that you know to be both precise and as widely
+9. Strunk & White, supra note 2, at 23.
+23
+
+Judicial Writing Manual, Second Edition
+
+understood as possible. Rarely can you justify the little-known
+word on grounds that it is a term of art. 10
+
+Use of footnotes and citations
+Footnotes
+The purpose of a footnote is to convey information that would disrupt
+the flow of the opinion if included in the text. The first question a judge
+should ask about a prospective footnote is whether its content is appropriate for inclusion in the opinion. If it is not important enough to go
+into the text, the judge must have some justification for including it in
+the opinion at all. The use of footnotes can be appropriate to convey
+information that supports the language of the opinion but is not necessary to understand it, such as the text of a statute or material from the
+record. Footnotes can also be used to acknowledge and briefly dispose
+of tangential issues. Some judges place all citations in footnotes, leaving
+the text entirely for discussion. But footnotes should not be used simply
+as a repository for information that the judge wants to keep but does not
+know what to do with. Some judges, conscious of the tendency to overuse footnotes, have strived to eliminate or at least reduce the number of
+footnotes in their opinions. 11
+Citations
+The leading legal citation manual is The Bluebook: A Uniform System
+of Citation. 12 Mastering the arcana of citation forms, however, is not a
+productive use of judges’ or law clerks’ time. The purpose of citations
+is to assist researchers in identifying and finding the sources; a form of
+citation that will serve that end is sufficient. Whatever form of citation is
+used, it should be used consistently to avoid confusion and the appearance of lack of craftsmanship and care. Some judges maintain personal
+citation forms or style manuals that reflect their preferences. Such forms
+and manuals promote consistency, help orient new clerks, and encourage
+careful preparation of opinions.
+10. Bryan A. Garner, The Elements of Legal Style 193 (2d ed. 2002).
+11. See, e.g., Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).
+12. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n
+et al. eds., 19th ed. 2010) [hereinafter The Bluebook].
+24
+
+Judicial Writing Manual, Second Edition
+
+Careful editing
+Careful writers edit their work critically to clarify the ambiguities, eliminate the superfluous, smooth the transitions, and tighten the structure.
+This is not an easy task, because when reading their own writing, writers
+tend to read what they meant to write rather than what they actually wrote.
+Judges must strive to be objective about their writing, to read every
+paragraph carefully, and not to skip over text because it is familiar. A
+judge who is editing his or her own work must always ask these questions: Have I said precisely what I intended to say? Is there a better way
+to say it? Does the thought flow clearly and logically? Will the reader
+understand it?
+The following techniques should help judicial writers improve their
+editing skills.
+Reread and revise
+Editing an opinion involves striking needless words and unnecessary
+facts, rewriting unclear sentences, eliminating repetition, reorganizing,
+and making the opinion cleaner and sharper. “I spend a lot of time editing, clearing away my own and the clerks’ underbrush,” one judge said.
+“The underbrush may be valuable someplace or sometime, but not here
+and now.” This process may take the judge through many drafts before a
+polished opinion emerges.
+Electronic word processing software is a boon to writers and editors. It greatly speeds up the writing process and facilitates editing and
+revising. But proofreading text on a computer screen is demanding, and
+without careful and repeated checking of a printed copy, typographical
+and other errors can be easily missed, even if automated spelling and
+grammar features are used.
+In editing their opinions, judges should not focus solely on language,
+grammar, and style. They must also
+• check for internal consistency;
+• go back to the Introduction to see whether the opinion has addressed all of the issues and answered the questions as they were
+initially formulated;
+• reread the statement of facts to see whether it covers all the facts
+significant to the decision and no more;
+25
+
+Judicial Writing Manual, Second Edition
+
+• review the legal discussion to see whether the opinion has addressed in logical order the issues that need to be addressed; and
+• consider whether the Conclusion follows from the discussion.
+Put the draft aside and come back to it with a fresh perspective
+Judges can improve the editing process by “let[ting] the draft sit for a
+while and simmer,” as one judge said. Although time constraints and
+mounting caseloads may make it difficult, delaying editing the opinion
+for even a few days may help the judge review things more objectively,
+gain new insights, and think of new ideas.
+Ask a new reader to criticize a draft
+A law clerk who has not worked on the opinion can serve a useful function by reading the draft with a fresh eye and offering editorial and substantive criticism. Even law clerks who have assisted the judge with the
+opinion can provide an editorial perspective that will help improve the
+finished product.
+
+26
+
+VI. Writing Joint Opinions, Dissents, and
+Concurrences
+Appellate opinions represent the collective decision of several judges.
+The judge who writes the opinion must take into account the thinking of
+the other judges on the panel or en banc court and incorporate it into the
+opinion’s rationale. Sometimes several judges participate in preparing an
+opinion, for example, when an opinion is written jointly or when judges
+comment on drafts prepared by the judge assigned to write the opinion.
+When the opinion does not represent the thinking of all of the members
+of the court, some judges may choose to prepare concurring or dissenting opinions. This part discusses some of the collegial considerations in
+opinion writing.
+Joint opinions
+In some circuits, the complexity and number of issues involved in a
+single case have resulted in jointly written opinions. Sometimes the
+opinion is designated as per curiam; at other times the authors of the
+different sections are identified. The review of long and technical administrative records in the D.C. Circuit, for example, has resulted in
+joint opinions. 13
+When a panel chooses to issue a joint opinion, considerable planning
+and coordination by both judges and law clerks are necessary to ensure a
+readable and coherent final opinion. It is desirable for the judges to hold
+a longer-than-usual post-argument conference to discuss the assignment
+of opinion sections, their interdependence, and joint assumptions or factual predicates. The panel may need to determine the sequence of sections to avoid confusion and repetition of basic facts or legal analyses.
+Generally, one judge on the panel must assume coordinating authority and circulate an outline and summary of the proposed sections before
+writing begins. One judge, usually the coordinating judge, must also take
+responsibility for writing the Introduction and Conclusion, which cover
+all sections. The Introduction is usually brief and confined to a statement
+13. See, e.g., Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694 (D.C. Cir. 1988); Ohio v. U.S.
+Dep’t of Interior, 880 F.2d 432 (D.C. Cir. 1989). See also Chem. Mfrs. Ass’n v. Envtl. Prot.
+Agency, 870 F.2d 177 (5th Cir. 1989).
+27
+
+Judicial Writing Manual, Second Edition
+
+of the proceedings leading to the court challenge. The facts in detail are
+better presented as needed in the individual sections.
+After the authors have drafted and approved the various sections,
+the coordinating judge should assume authority to make non-substantive changes to the draft to eliminate duplication or gross stylistic differences. The law clerks usually meet to decide on a uniform citation and
+heading format.
+Commenting on a draft prepared by another judge
+Judges circulate draft opinions to other judges on a panel or en banc
+court to ensure that the opinion reflects the rationale of the judges in
+the majority. When commenting on an opinion written by another
+judge, it is always appropriate to comment on the opinion’s substance,
+but inappropriate to comment on matters of style. When the distinction between substance and style is fuzzy, judges’ comments are appropriate if the matter in question seems to speak for the court and
+thus might send a message that does not represent the view of the
+other judges.
+If, for example, the discussion of a substantive issue is not written
+clearly, the other judges should bring this to the attention of the writing
+judge. When a citation to a case or law review article may represent a
+rationale that is not adopted by other judges, they should express their
+disagreement to the writing judge. When, however, a reviewing judge
+objects to stylistic, grammatical, or language choices simply on the basis of personal preference, such objections are best left unexpressed.
+Nevertheless, although judges are not grading the work of their colleagues, it is helpful to point out minor matters, such as typographical
+errors, either by a note to the author or by a telephone call between
+law clerks.
+Dissenting opinions
+Dissenting opinions can serve useful functions in communicating
+important information to an opinion’s audiences and furthering the
+growth of the law. They may help to encourage en banc or certiorari
+review and to isolate and refine the issues for further appeal. They may
+promote legislative action to correct possible shortcomings in the law.
+
+28
+
+Judicial Writing Manual, Second Edition
+
+Dissenting opinions may also help to narrow the scope of a decision by
+pointing out the possible dangers of the position the majority has taken
+or by indicating to other judges and the bar the limits of a particular
+decision and its effect on similar cases in the future.
+Dissenting opinions are written at a potential cost, however. A dissent that sounds strident or preachy may contribute to divisiveness and
+ill feelings in the court, may undermine the authority of the majority
+opinion and of the court as an institution, and may create confusion.
+Whether judges should dissent depends on the nature of the case and the
+principle at issue. Judges generally should not write dissenting opinions
+when the principle at issue is settled and the decision has little significance outside the specific case. Cases that involve emerging legal principles or statutory interpretation in areas that will affect future activities of
+the bar, the public, and the government are more likely to warrant dissenting opinions than cases of limited application. The issue should be
+significant enough that the judge’s “fever is aroused,” as one judge said,
+but the motivation for writing a dissent should be to further the development of the law rather than to vent personal feelings. Judges considering
+whether to dissent should ask themselves whether the likely benefits outweigh the potential costs.
+If a judge decides that writing a dissent will serve a useful purpose,
+the judge should write it as carefully and responsibly as an opinion of
+the court. Rarely should a judge dissent without an opinion; doing so
+communicates no information to the opinion’s readers. The dissenting
+opinion should focus on the critical principles and distinguish the dissenter’s rationale from that of the majority. The dissenting judge should
+state the points of disagreement forcefully and effectively without engaging in argument or advocacy. A dissenting opinion should not simply
+slash at the majority opinion or its author. Personal attacks, offensive
+language, or a condescending tone should not be used, although some
+judges believe that expressing moral outrage and restrained indignation
+may sometimes be appropriate.
+Appendix E contains examples of brief dissenting opinions that reflect a temperate, reasoned tone in expressing sincere disagreement with
+the majority.
+
+29
+
+Judicial Writing Manual, Second Edition
+
+Concurring opinions
+Most of the considerations applicable to dissenting opinions also apply
+to concurrences. Concurring opinions are appropriate where they are intended to define with greater precision the scope of the majority opinion
+or otherwise inform the parties and other audiences of what the writer believes are important points. Thus, judges may issue concurrences
+when there are two argued grounds for a decision, the majority justifies
+its decision on one of those grounds, and other judges believe the alternative ground should be stated. Concurrences may also serve to indicate
+to parties in future cases how far the court is willing to go down a particular road. A judge should not write a concurring opinion simply to add a
+point of view or personal statement that does not further either the decisional or educational value of the majority opinion. In deciding whether
+to write a concurring opinion, the judge should ask the question: Am I
+writing this for myself or for the good of the court?
+Judges should include in their concurring opinions a statement of
+reasons why they are concurring. The point is not to present an alternative opinion of the court, but to indicate the point of departure from
+the majority and to further define the contours of the majority opinion.
+Concurrences should also not rehash the facts and legal principles on
+which the majority based its decision, unless the judge has interpreted
+the facts and principles in a different way. The arguments should be
+principled, and the tone should be instructive but not pedantic.
+Appendix F contains examples of useful and narrowly written concurring opinions.
+
+30
+
+VII. Reading About Writing
+One of the judges we interviewed said, “I think judges should constantly read books on writing.” A dictionary, a thesaurus, and The Bluebook:
+A Uniform System of Citation 14 are the basic writing aids judges should
+have at hand. Judges should also be familiar with manuals on style and
+grammar and refer to them when questions arise. Strunk & White’s The
+Elements of Style 15 is clear and concise, and is considered by many authorities to be the leading guide on writing style. A copy of it should be in
+every chambers. Many judges and legal writing experts consider Bryan
+Garner to be the preeminent authority on legal writing style. He has written numerous books on the topic, including The Elements of Legal Style 16
+and the more comprehensive The Redbook: A Manual on Legal Style. 17
+Some judges find that reading old opinions helps them to improve
+the clarity of their writing. “Sometimes I’ll remember an opinion that I
+think was particularly good in terms of teaching the legal principles,” one
+judge said. “The old opinion will become sort of a textbook for how to
+skin that cat.”
+Another judge said, “I always tell my clerks to go back and read some
+good authors to see how they write and then try to think about that when
+they are writing law.” Another observed:
+I find the best tool for trying to keep your writing from being totally dull and hard to read is to read non-legal things. I think the
+more non-legal books you read, the more you pick up interesting
+popular terms having application to the law and the more you can
+stay away from legal jargon or the same tired old words. I find that
+reading outside of the law, sometimes a phrase will stick in your
+mind, sometimes a word, sometimes an image. Analogizing to
+non-legal situations can liven up your writing, as can introducing
+unexpected words and images.
+
+This manual will not suggest what should be on a judge’s non-legal reading list (although several judges suggested that Ernest Hemingway’s lean style is an excellent model for legal writing). The following,
+14. The Bluebook, supra note 12.
+15. Strunk & White, supra note 2.
+16. Bryan A. Garner, The Elements of Legal Style (2d ed. 2002).
+17. Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. 2006).
+31
+
+Judicial Writing Manual, Second Edition
+
+however, are books and articles on legal writing that will assist judges in
+preparing clear and concise opinions.
+Books
+Ruggero A. Aldisert, Opinion Writing (2d ed. 2009).
+Bryan A. Garner, The Elements of Legal Style (2d ed. 2002).
+Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. 2006).
+Joyce J. George, Judicial Opinion Writing Handbook (5th ed. 2007).
+William D. Popkin, Evolution of the Judicial Opinion: Institutional and
+Individual Styles (2007).
+Bernard E. Witkin, Manual on Appellate Court Opinions (1977).
+Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).
+Articles
+Joseph Kimble, The Straight Skinny on Better Judicial Opinions,
+9 Scribes J. Legal Writing 1 (2003–2004).
+Robert A. Leflar, Some Observations Concerning Judicial Opinions,
+61 Colum. L. Rev. 810 (1961).
+Abner J. Mikva, The Lester W. Roth Lecture: For Whom Judges Write,
+61 S. Cal. L. Rev. 1357 (1988).
+Edward D. Re, Appellate Opinion Writing (Federal Judicial Center
+1975).
+Timothy P. Terrell, Organizing Clear Opinions: Beyond Logic to
+Coherence and Character, 38 Judges J. 4 (Spring 1999).
+Irving Younger, Bad Writing = Bad Thinking, A.B.A. J. 90 (Jan. 1, 1987).
+
+32
+
+Appendix A: Sample Memorandum Opinion
+The following excerpt is an example of a memorandum opinion.
+This is a consolidated appeal from two actions . . . . Defendants . . . appeal from final judgments of foreclosure and sale entered in the [district
+court] dated . . . and . . . . We need not recite the facts of this case, since they
+are set forth in detail in the district court’s two thorough opinions, reported at . . . . Familiarity with these facts is assumed. See also [related action].
+The principal argument of [defendants] on appeal is this: The district court erred in dismissing the “faithless agent” defense to foreclosure
+under [state] law. That defense is an attempt to avoid the established rule
+of agency law that a principal is liable to third parties for the acts of an
+agent operating within the scope of the agent’s real or apparent authority.
+See British American & Eastern Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir.
+1979). Appellants . . . do not contest that appellee . . ., the mortgagee of
+the properties involved here, was a third party. Nor do they deny that
+[appellee] was dealing with their agent [land company] and that the latter was acting within the scope of its apparent authority. Nevertheless,
+they invoke the faithless agent defense, claiming that [appellee] should
+be barred from foreclosing because it was aware of the mismanagement
+of B . . ., who was acting as president of [the land company]. To support
+this view, they point to evidence that [appellee] believed that B’s mismanagement was the root cause of the default.
+We are not persuaded that the district court erred in rejecting the
+faithless agent defense. Assuming arguendo that this defense may be
+invoked under the right circumstances, we considered and rejected it
+in [citation]. Indeed, the party asserting the faithless agent defense in
+[citation] appears to have been essentially the same, in all but name,
+as [defendants]. [Citation.] Moreover, even if, as defendants contend,
+principles of collateral estoppel do not bar their claim, we find the reasoning of the [citation] panel dispositive on this record. “It cannot be
+that a mortgagee’s awareness of defaults under a mortgage constitutes
+awareness that a managing agent is engaged in self-dealing.” [Citation.]
+On the record before us, “[f]aced with only conclusory allegations and
+unsupported factual assertions,” we reject, as did the [citation] panel, the
+“‘faithless agent’ defense.” [Citation.]
+The judgments of the district court are affirmed.
+33
+
+Appendix B: Sample Summary Order
+The following is an example of a summary order.
+This cause came to be heard on the transcript of record from the
+United States District Court for the District of     and was taken
+under submission.
+1. Plaintiff . . . appeals pro se from an order dated December
+21, 1989 of the United States District Court for the District of
+    denying appellant’s motion for reconsideration of the
+district court’s order of October 12, 1989, which granted the
+cross-motion for summary judgment of defendants-appellees . . . . This civil rights case arises out of appellees’ failure to hire
+appellant for a position at the Veterans Administration Medical
+Center in . . . .
+2. Appellant’s principal claims on appeal appear to be that the district court abused its discretion, misinterpreted the facts in this
+case, misapplied various laws and misinterpreted Congress’s intent in enacting Title VII of the Civil Rights Act of 1964.
+3. We have carefully examined all of appellant’s claims, and they are
+without merit. We affirm substantially for the reasons stated in
+the thorough opinions of . . . dated October 12, 1989 and December 21, 1989.
+4. The order of the district court is affirmed.
+
+35
+
+Appendix C: Sample Standards of Review
+The following are examples of clearly stated standards of review.
+We review a district court’s denial of a motion for a new trial for
+an abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir.
+1985). The reviewing court must consider whether the decision of the
+lower court “was based on a consideration of the relevant factors and
+whether there has been a clear error of judgment.” Citizens to Preserve
+Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823, 28 L. Ed.
+2d 136 (1971).
+***
+
+Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j)
+(1982), authorizes district courts to grant interim injunctive relief to restore and preserve the status quo pending the Board’s decision on the
+merits of an underlying unfair labor practice complaint. E.g., Asseo v. Pan
+American Grain Co., Inc., 805 F.2d 23, 25 (1st Cir. 1986); Fuchs v. Hood
+Industries, Inc., 590 F.2d 395, 397 (1st Cir. 1979). Under this statutory
+scheme, the district court is limited to the determination of (1) whether
+there is reasonable cause to believe that a violation of the Act, as alleged,
+has been committed, and (2) whether injunctive relief is appropriate under the circumstances. Asseo, 805 F.2d at 25; Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d 953, 959 (1st Cir. 1983).
+As we have previously stated, on appeal, this court’s review is:
+limited to [determining] whether the district court was clearly erroneous in finding reasonable cause to believe that there were unfair labor practices and whether it abused its discretion in granting
+injunctive relief. Union de Tronquistas de Puerto Rico v. Arlook,
+586 F.2d 872, 876 (1st Cir. 1978).
+
+Asseo, 805 F.2d at 25. With these standards firmly in mind, we turn now
+to the merits of the appeal.
+***
+
+In reviewing findings by bankruptcy courts, we and the district courts
+may only reverse factual findings where we determine that they are
+clearly erroneous. In re Killebrew, 888 F.2d 1516, 1519 (5th Cir. 1989).
+Legal determinations, of course, we review de novo. In re Compton,
+37
+
+Judicial Writing Manual, Second Edition
+
+891 F.2d 1180, 1183 (5th Cir. 1990). As this appeal hinges upon whether
+[the debtor] intentionally deceived [the creditor]—a factual determination—we apply the clearly erroneous standard. Cf. In re Rubin, 875 F.2d
+755, 758 (9th Cir. 1989).
+
+38
+
+Appendix D: Sample Dispositions
+The following are examples of good, instructive dispositions.
+We therefore grant the petition for review and order the [agency] not
+to initiate further prosecutions under the Penalty Rules until the agency
+has engaged in further rulemaking in accord with section 553. Nonetheless, pursuant to our remedial powers, we hold that the [agency] is
+free to hold pending cases in abeyance and resume prosecution upon the
+repromulgation of a scheme for adjudicating administrative civil penalty
+actions under section 1475.
+***
+
+For the foregoing reasons we will reverse the order of    , dismissing this action and will remand the case to the district court to reinstate this action. On remand the district court should consider the
+preemption argument on the merits unless it upholds another defense
+to this action.
+***
+
+For the reasons stated, we order the district court to do the following: (1) The court will reconsider its order in respect to VOC cleanup;
+it will amend that order to require [defendant] to clean up VOCs in the
+soil at the . . . site to a level that it determines “public health” and the
+“public interest” require. (2) The court will reconsider the matter of “indirect costs,” explaining, as we have set forth above, any denial of those
+costs as a sanction. In all other respects the judgment of the district court
+is affirmed.
+
+39
+
+Appendix E: Sample Brief Dissenting Opinions
+The following are examples of brief dissenting opinions.
+The reasons why I am constrained to dissent may be briefly stated.
+The question whether an anti-takeover provision provides a “special protection” to debenture holders cannot be answered in the negative merely
+because the “Independent Directors” decided to waive their provisions
+and approve a particular transaction. These directors were explicitly
+empowered to act in this fashion by virtue of the fully disclosed terms
+of the provision. A significant function of an anti-takeover provision is
+to serve as a deterrent to hostile takeovers, including takeovers which
+would be contrary to the interests of both shareholders and debenture
+holders. One cannot, I believe, fairly characterize such a provision as
+being “worthless” to the debenture holders, even though as a matter of
+Delaware law directors owe a fiduciary duty solely to shareholders. The
+anti-takeover provision was therefore a “special protection” to debenture
+holders, albeit a limited one.
+Federal securities laws do not impose an obligation to advise investors of the fundamentals of corporate governance. The disclosure required by the federal securities laws is not a “rite of confession or exercise
+in common law pleading. What is required is the disclosure of material
+objective factual matters.” Data Probe Acquisition Corp. v. Data Lab, Inc.,
+722 F.2d 1, 5–6 (2d Cir. 1983), cert. denied, 465 U.S. 1052, 104 S. Ct.
+1326, 79 L. Ed. 722 (1984). Especially is this so where, as here, the investor complainants are sophisticated financial institutions making major
+investments. The role of the federal securities laws is not to remedy all
+perceived injustices in securities transactions. Rather, as invoked in this
+case, it proscribes only the making of false and misleading statements or
+material omissions.
+Whether the Independent Directors breached an implied duty of
+good faith or otherwise acted contrary to their fiduciary obligations are
+matters of state law. Here, the federal claims were asserted only conditionally, the express condition being the failure of the state law claims.
+These state claims were properly dismissed by the court below for lack of
+pendent jurisdiction.
+
+41
+
+Judicial Writing Manual, Second Edition
+
+Believing no valid federal claim to be present, I would affirm essentially for the reasons set forth in the Opinions of the Magistrate and
+District Court.
+***
+
+In many respects this case represents good police work. It is clear,
+however, that defendants were of abnormally low intelligence and that
+Miranda warnings were not given. Even though appellants had not been
+taken in custody, it is also true they had not been furnished counsel or
+waived same. As the district court held, the government agents should
+have taken further precautions to ensure that [defendants] understood
+the situation and their rights. See Henry v. Dees, 658 F.2d 406, 411 (5th
+Cir. 1981).
+
+42
+
+Appendix F: Sample Brief Concurring Opinions
+The following are examples of brief, narrowly written concurring opinions.
+I concur with most of Judge    ’s thoughtful discussion of the
+issues in this case. I am fully in accord with Part IIA and C and the rationale with respect to the claims against [defendant] and the state law
+claims. I agree also with the statement in Part IIB that “[d]ue process
+concerns are clearly not implicated in [defendants’] actions with regard
+to the letter from . . . .” I agree further that there is “no support . . . for
+plaintiff ’s fanciful conspiracy theory.”
+I find no necessity, however, to adopt the statement quoted from Rice
+v. Ohio Department of Transportation, 887 F.2d 716, 719 (6th Cir. 1989),
+which may be interpreted to mean that the doctrine of Will v. Michigan
+Department of State Police, 491 U.S. 58 (1989), somehow bars suits under
+§ 1983 against state officials when those officials are being sued in their
+individual capacities. I do not view Will as barring § 1983 suits against
+state officials whenever the suits concern actions taken in their individual capacities. Instead, I believe that Will bars suits against state officials
+only when those officials are sued in their official capacities.
+Accordingly, I would affirm the decision of the district court that
+under the facts of this case defendants . . . enjoy qualified immunity.
+***
+
+I concur with the results reached by Judge     and in his opinion
+except as to his analysis of the First Amendment issue. For the reasons
+stated in my concurring opinion in [citation], I believe the . . . regulations are permissible time, place, and manner restrictions on speech in
+the [plaintiff ’s] profession.
+
+43
+
+The Federal Judicial Center
+Board
+The Chief Justice of the United States, Chair
+Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indiana
+Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit
+Judge Nancy Freudenthal, U.S. District Court for the District of Wyoming
+Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texas
+Judge Raymond Jackson, U.S. District Court for the Eastern District of Virginia
+Judge George Z. Singal, U.S. District Court for the District of Maine
+Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit
+James C. Duff, Director of the Administrative Office of the U.S. Courts
+Director
+John S. Cooke
+Deputy Director
+Clara J. Altman
+About the Federal Judicial Center
+The Federal Judicial Center is the research and education agency of the federal judicial
+system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.
+By statute, the Chief Justice of the United States chairs the Center’s Board, which
+also includes the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.
+The organization of the Center reflects its primary statutory mandates. The
+Education Division plans and produces education and training for judges and court
+staff, including in-person programs, video programs, publications, curriculum packages for in-district training, and web-based programs and resources. The Research
+Division examines and evaluates current and alternative federal court practices and
+policies. This research assists Judicial Conference committees, who request most
+Center research, in developing policy recommendations. The Center’s research also
+contributes substantially to its educational programs. The Federal Judicial History
+Office helps courts and others study and preserve federal judicial history. The
+International Judicial Relations Office provides information to judicial and legal
+officials from foreign countries and informs federal judicial personnel of developments
+in international law and other court systems that may affect their work. Two units of the
+Director’s Office—the Information Technology Office and the Editorial & Information
+Services Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources.
+
+The Federal Judicial Center has published this manual to help
+judges organize opinions and improve their opinion writing.
+Prepared with the assistance of judges, law professors,
+and writers, the manual offers advice on writing tailored
+to the needs of the federal judiciary.
+
+One Columbus Circle NE
+Washington, DC 20002-8003
+fjc.dcn • fjc.gov
+
+Judicial Writing Manual
+A Pocket Guide for Judges
+Second Edition
+
+Federal Judicial Center
+
+
\ No newline at end of file
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+		<td align="left" valign="top" bgcolor="#F5F6CE" width=1 nowrap></td>
+		<td align="center" valign="top" bgcolor="#A9F5BC"><a href="get.php?md5=1b1ba2439cfa9fa6f44bab813e9b7bab&key=5TQ3IXLH0VDDKN79"><h2>GET</h2></a></td>
+		<td align="left" valign="top" bgcolor="#F5F6CE" width=1></td>
+		</tr>
+		<tr>
+	
+		<td bgcolor="#F5F6CE" valign=top></td>
+		<td>
+<table width=700 border=0>
+<tr><td  colspan=3 bgcolor="#F5F6CE" align="center"><nobr><script type="text/javascript">
+	atOptions = {
+		'key' : '8653b0dc857008353ad71d83dad80b6d',
+		'format' : 'iframe',
+		'height' : 90,
+		'width' : 728,
+		'params' : {}
+	};
+	document.write('<scr' + 'ipt type="text/javascript" src="http' + (location.protocol === 'https:' ? 's' : '') + '://inopportunefable.com/8653b0dc857008353ad71d83dad80b6d/invoke.js"></scr' + 'ipt>');
+</script></nobr></td></tr>
+<tr><td  rowspan=2><a href="/covers/1586000/1b1ba2439cfa9fa6f44bab813e9b7bab.jpg"><img src="/covers/1586000/1b1ba2439cfa9fa6f44bab813e9b7bab.jpg" width=300></a></td><td>Title: Legal Writing in Plain English: A Text with Exercises<br>
+Series: Chicago Guides to Writing, Editing, and Publishing<br>
+Author(s): Bryan A. Garner<br>
+Publisher: University Of Chicago Press<br>
+Year: 2013<br>
+ISBN: 0226283933; 9780226283937<br></td>
+
+<tr><td><textarea rows='9' name='bibtext' id='bibtext' readonly cols='60'>@book{book:{92607912},
+   title =     {Legal Writing in Plain English: A Text with Exercises},
+   author =    {Bryan A. Garner},
+   publisher = {University Of Chicago Press},
+   isbn =      {0226283933; 9780226283937},
+   year =      {2013},
+   series =    {Chicago Guides to Writing, Editing, and Publishing},
+   edition =   {2},
+   url =       {libgen.li/file.php?md5=1b1ba2439cfa9fa6f44bab813e9b7bab}}</textarea></td></tr>
+<tr><td colspan=3><p style='text-align:center'>
+<a href='https://www.worldcat.org/search?qt=worldcat_org_bks&q=Legal%20Writing%20in%20Plain%20English%3A%20A%20Text%20with%20Exercises&fq=dt%3Abks'>Search in WorldCat</a> 
+<a href='https://www.goodreads.com/search?utf8=✓&query=Legal%20Writing%20in%20Plain%20English%3A%20A%20Text%20with%20Exercises'>Search in Goodreads</a><br>
+<a href='https://www.abebooks.com/servlet/SearchResults?tn=Legal%20Writing%20in%20Plain%20English%3A%20A%20Text%20with%20Exercises&pt=book&cm_sp=pan-_-srp-_-ptbook'>Search in AbeBooks</a></td></tr>
+</table>
+</td>
+		<td bgcolor="#F5F6CE" valign=top></td>
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+		<tr><td colspan=3 bgcolor="#F5F6CE" align="center"><script type="text/javascript">
+	atOptions = {
+		'key' : '8653b0dc857008353ad71d83dad80b6d',
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+Legal Writing in Plain English
+
+On Writing, Editing, and Publishing
+Jacques Barzun
+Tricks of the Trade
+Howard S. Becker
+Writing for Social Scientists
+Howard S. Becker
+The Craft of Translation
+John Biguenet and Rainer Schulte, editors
+The Craft of Research
+Wayne C. Booth, Gregory G. Colomb, and Joseph M. Williams
+Glossary of Typesetting Terms
+Richard Eckersley, Richard Angstadt, Charles M. Ellerston,
+Richard Hendel, Naomi B. Pascal, and Anita Walker Scott
+Writing Ethnographic Fieldnotes
+Robert M. Emerson, Rachel I. Fretz, and Linda L. Shaw
+Getting It Published
+William Germano
+A Poet’s Guide to Poetry
+Mary Kinzie
+Mapping It Out
+Mark Monmonier
+Indexing Books
+Nancy C. Mulvany
+Getting into Print
+Walter W. Powell
+A Manual for Writers of Term Papers, Theses, and Dissertations
+Kate L. Turabian
+Tales of the Field
+John Van Maanen
+Style
+Joseph M. Williams
+A Handbook of Biological Illustration
+Frances W. Zweifel
+Chicago Guide for Preparing Electronic Manuscripts
+Prepared by the Staff of the University of Chicago Press
+
+Bryan A. Garner
+
+Legal Writing in Plain English
+A Text with Exercises
+
+The University of Chicago Press
+Chicago and London
+
+Bryan A. Garner, president of LawProse, Inc., conducts writing and drafting
+seminars for lawyers and judges around the country. He also teaches at Southern
+Methodist University School of Law and has written widely on the English
+language and legal style.
+
+The University of Chicago Press, Chicago 60637
+The University of Chicago Press, Ltd., London
+䉷 2001 by Bryan A. Garner
+All rights reserved. Published 2001
+Printed in the United States of America
+10 09 08 07 06 05 04 03 02 01
+
+1 2 3 4 5
+
+ISBN: 0-226-28417-4 (cloth)
+ISBN: 0-226-28418-2 (paper)
+ISBN: 0-226-28419-0 (instructor’s manual)
+
+Library of Congress Cataloging-in-Publication Data
+Garner, Bryan A.
+Legal writing in plain English : a text with exercises / Bryan A.
+Garner.
+p. cm.—(Chicago guides to writing, editing, and publishing)
+ISBN 0-226-28417-4 (cloth : alk. paper)—ISBN 0-226-28418-2 (paper :
+alk. paper)—ISBN 0-226-28419-0 (instructor’s manual : alk. paper)
+1. Legal composition. I. Title. II. Series.
+KF250.G373 2001
+808⬘.06634—dc21
+00-010665
+Excerpts from previously published books are reprinted by permission of the
+publishers. The text on page 69 originally appeared in Richard A. Posner,
+Problems of Jurisprudence 464 (1990), 䉷 Harvard University Press. The text
+on page 70 originally appeared in Ronald Dworkin, A Matter of Principle 385
+(1985), 䉷 Harvard University Press.
+Exercises are also available for downloading from the University of Chicago
+Press website at www.press-pubs.uchicago.edu/garner.
+
+o The paper used in this publication meets the minimum requirements of the
+American National Standard for Information Sciences—Permanence of Paper for
+Printed Library Materials, ANSI Z39.48-1992.
+
+Other books written or edited by Bryan A. Garner
+A Dictionary of Modern Legal Usage
+A Dictionary of Modern American Usage
+Black’s Law Dictionary (7th ed., abridged ed., and pocket ed.)
+The Oxford Dictionary of American Usage and Style
+The Winning Brief: 100 Tips for Persuasive Briefing in Trial and
+Appellate Courts
+The Elements of Legal Style
+Guidelines for Drafting and Editing Court Rules
+Securities Disclosure in Plain English
+A Handbook of Basic Law Terms
+A Handbook of Business Law Terms
+A Handbook of Criminal Law Terms
+A Handbook of Family Law Terms
+Texas, Our Texas: Reminiscences of the University
+
+For Alexandra
+
+contents
+
+Preface xiii
+Introduction xvii
+
+part one: Principles for All Legal Writing 1
+1. Framing Your Thoughts 3
+§ 1. Have something to say—and think it through. 3
+§ 2. For maximal efficiency, plan your writing projects. Try
+nonlinear outlining. 5
+§ 3. Order your material in a logical sequence. Use chronology when
+presenting facts. Keep related material together. 10
+§ 4. Divide the document into sections, and divide sections into
+smaller parts as needed. Use informative headings for the
+sections and subsections. 14
+2. Phrasing Your Sentences 17
+§ 5. Omit needless words. 17
+§ 6. Keep your average sentence length to about 20 words. 19
+§ 7. Keep the subject, the verb, and the object together—toward
+the beginning of the sentence. 23
+§ 8. Prefer the active voice over the passive. 24
+§ 9. Use parallel phrasing for parallel ideas. 28
+§ 10. Avoid multiple negatives. 30
+§ 11. End sentences emphatically. 31
+3. Choosing Your Words 34
+§ 12. Learn to detest simplifiable jargon. 34
+§ 13. Use strong, precise verbs. Minimize is, are, was, and were. 37
+§ 14. Turn -ion words into verbs when you can. 38
+§ 15. Simplify wordy phrases. Watch out for of. 40
+§ 16. Avoid doublets and triplets. 43
+§ 17. Refer to people and companies by name. 44
+§ 18. Don’t habitually use parenthetical shorthand names. Use them
+only when you really need them. 45
+§ 19. Shun newfangled acronyms. 47
+§ 20. Make everything you write speakable. 48
+
+ix
+
+x
+
+Contents
+
+part two: Principles Mainly for Analytical
+and Persuasive Writing 53
+§ 21. Plan all three parts: the beginning, the middle, and
+the end. 55
+§ 22. Use the “deep issue” to spill the beans on the first page. 58
+§ 23. Summarize. Don’t overparticularize. 62
+§ 24. Introduce each paragraph with a topic sentence. 65
+§ 25. Bridge between paragraphs. 67
+§ 26. Vary the length of your paragraphs, but generally keep
+them short. 72
+§ 27. Provide signposts along the way. 75
+§ 28. Unclutter the text by moving citations into footnotes. 77
+§ 29. Weave quotations deftly into your narrative. 83
+§ 30. Be forthright in dealing with counterarguments. 85
+
+part three: Principles Mainly for Legal Drafting 89
+§ 31. Draft for an ordinary reader, not for a mythical judge who might
+someday review the document. 91
+§ 32. Organize provisions in order of descending importance. 93
+§ 33. Minimize definitions. If you have more than just a few, put
+them in a schedule at the end—not at the beginning. 97
+§ 34. Break down enumerations into parallel provisions. Put every list
+of subparts at the end of the sentence—never at the beginning
+or in the middle. 100
+§ 35. Delete every shall. 105
+§ 36. Don’t use provisos. 107
+§ 37. Replace and/or wherever it appears. 112
+§ 38. Prefer the singular over the plural. 114
+§ 39. Prefer numerals, not words, to denote amounts. Avoid
+word–numeral doublets. 115
+§ 40. If you don’t understand a form provision—or don’t understand
+why it should be included in your document—try diligently
+to gain that understanding. If you still can’t understand it,
+cut it. 117
+
+part four: Principles for Document Design 121
+§ 41. Use a readable typeface. 123
+§ 42. Create ample white space—and use it meaningfully. 124
+§ 43. Highlight ideas with attention-getters such as bullets. 125
+§ 44. Don’t use all capitals, and avoid initial capitals. 126
+§ 45. For a long document, make a table of contents. 127
+
+part five: Methods for Continued Improvement 135
+§ 46. Embrace constructive criticism. 137
+§ 47. Edit yourself systematically. 138
+§ 48. Learn how to find reliable answers to questions of grammar
+and usage. 140
+
+Contents
+
+§ 49. Habitually gauge your own readerly likes and dislikes, as well as
+those of other readers. 143
+§ 50. Remember that good writing makes the reader’s job easy; bad
+writing makes it hard. 145
+
+Appendix A How to Punctuate 147
+Appendix B Four Model Documents 164
+1. Research Memorandum 165
+2. Motion 173
+3. Appellate Brief 182
+4. Contract 196
+Key to Basic Exercises 207
+Index 223
+
+xi
+
+preface
+
+This book takes a practical approach to legal writing. It derives from my
+experience over the past decade in working with law students and—in far
+greater numbers—practicing lawyers. So the book is intended not just for
+law students and paralegals but also for practitioners—even experienced
+ones. In devising the exercises for each section, I envisioned either a writing class or an informal group of legal writers who meet periodically to
+work through the book.
+Particularly in its approach to exercises, the book differs markedly from
+other legal-writing texts. Each of the 50 sections contains a basic, an intermediate, and an advanced exercise. (Model answers for the basic exercises
+are in the back of the book.) Some of these exercises are open-ended, requiring you to supply examples of particular writing problems. This
+simply means that you’ll have to pay some attention to style in your legal
+reading. Other exercises require you to research the literature on effective
+writing. Why? Because as professional writers, lawyers should know this
+literature. After all, workaday questions about writing are generally much
+easier to answer than the legal questions that arise in practicing law. If
+you worry about points of grammar and usage, see § 48. Better yet, make
+friends with the nearest librarian. Librarians are there to help you, and
+they’re generally eager to do it.
+The book’s organization reflects the different types of writing that lawyers do. Some techniques apply to virtually all legal writing (§§ 1–20).
+Others apply mostly—though not quite exclusively—to analytical and
+persuasive writing (§§ 21–30). Still others apply mostly to transactional
+drafting (§§ 31–40), though these techniques also address problems that
+occasionally arise in the other types of legal writing. Then there are two
+other groupings of techniques: those that lead to readable typography
+(§§ 41–45) and those that lead to ongoing improvement (§§ 46–50).
+Much of the advice in this book depends on—and even promotes—
+sound legal analysis. That might not be what people expect from a book
+on legal writing. Yet many sections are essentially about thinking straight.
+This is crucial, since it’s impossible to separate good writing from clear
+thinking.
+Here you’ll find discussed and illustrated the primary techniques for
+improving your writing style. Some sections will serve only as reminders
+of what you’ve heard before but perhaps forgotten. Other techniques will
+
+xiii
+
+xiv
+
+Preface
+
+probably be new to you. What matters most, in the end, is how you apply
+sound practices in your writing. You’ll have to use good judgment. No
+blackletter rule can substitute for that.
+Finally, a word about “plain English.” The phrase certainly shouldn’t
+connote drab and dreary language. Actually, plain English is typically
+quite interesting to read. It’s robust and direct—the opposite of gaudy,
+pretentious language. You achieve plain English when you use the simplest, most straightforward way of expressing an idea. You can still choose
+interesting words. But you’ll avoid fancy ones that have everyday replacements meaning precisely the same thing.
+The more books I write, the more abettors I have. Among the indispensable contributors to this book were the participants in continuinglegal-education seminars—as well as law students—who have contributed to my knowledge of legal writing and legal language over the past 12
+years. Although the group numbers in the hundreds, it is a select group
+among the some 34,000 lawyers and students who have been exposed
+to many of the principles discussed in these pages. On the subject of effective writing, my curiosity is boundless. So to the lawyers and students
+whose comments gave insight and energy to this investigation, a genuine
+thank-you.
+Some debts are so specific that I must name names. Two English professors at the University of Texas—John R. Trimble and Betty Sue Flowers—
+have occasionally team-taught with me for a decade, and I’ve learned volumes from them. Trimble influenced my thinking especially in §§ 15, 20,
+25, 29, and 50, and Flowers provided the intellectual framework for § 2.
+I’m indebted to Michael L. Atchley, Thomas D. Boyle, Beverly Ray Burlingame, Charles Dewey Cole Jr., Tina G. Davis, Jerome R. Doak, Ronald
+Dworkin, Lawrence Friedman, Michael A. Logan, Richard A. Posner, and
+Steven C. Seeger for the good models I’ve cited. They are splendid writers,
+and I am delighted to be able to showcase their work.
+Several brilliant legal-writing instructors reviewed the entire manuscript and made excellent suggestions. My profound gratitude goes to
+Kathleen Coles, A. Darby Dickerson, Kay Kavanagh, Joseph Kimble, Karen
+Larsen, Kathleen O’Neill, and Kathryn Tullos.
+I had the help of many able editors. Linda J. Halvorson of the University
+of Chicago Press invited me to write the book and made many helpful suggestions. Beverly Ray Burlingame, Joseph F. Spaniol Jr., David W.
+Schultz, and Elizabeth C. Powell reviewed the manuscript and made many
+excellent suggestions—as did David Bemelmans (for the University of Chicago Press). Cynde L. Horne and Wanda Raiford helped me prepare the key
+to the basic exercises, and Tiger Jackson helped on the index. Finally, I
+once again had the benefit of Karen Magnuson’s discerning eyes: she is
+among the most attentive copyeditors anywhere to be found.
+I wrote the book in July and August of 1999 in Oxford, England, at the
+Bodleian Law Library. Many thanks to my generous friend, Professor Tony
+
+Preface
+
+Honoré, both for his electric wit (on any subject) and for his many kindnesses (including the extended use of his library carrel).
+My family—my wife, Teo, and our two daughters, Caroline and Alexandra—were as supportive as ever. I believe they know how grateful I am.
+Bryan A. Garner
+Dallas, Texas
+December 2000
+
+xv
+
+introduction
+
+“Notwithstanding anything to the contrary contained in any other document (or any part thereof) . . . .” No. Strike that.
+There’s an age-old cycle of poor legal writing. You can help break it.
+The first part of the cycle is familiar enough. Start with the premise
+that writing well isn’t easy. Most people don’t write so well—even many
+college graduates who think they do. Most of our future doctors, accountants, and businesspeople—even professors—aren’t accomplished writers.
+Why should it be any different for lawyers?
+The second part of the cycle is insidious: when you plunge groups of
+mediocre writers into a complex field with its own mind-boggling jargon,
+rife with bloated expressions that displace everyday words, the results are
+predictable enough. But it’s even worse: make law students pore over ream
+upon ream of tedious, hyperformal, creaky prose. Acculturate them to
+pomposity. Then what do you suppose you’ll get? You’ll end up with your
+average legal writer: wordy, stuffy, artificial, and often ungrammatical.
+In the last part of the cycle, each generation of lawyers trains the next
+to follow its ingrained habits. Meanwhile, generation after generation,
+lawyers get ridiculed for their pompous writing.
+It doesn’t have to be this way—for you or anybody else. Even if you’re
+entering law a fairly weak writer, you can help break the cycle. You need
+not blindly adopt the worn-out, largely ineffective writing habits of the
+past.
+Although it won’t be easy, once you become a skillful writer—especially a skillful writer on legal subjects—your rewards will be great. Before
+we talk about rewards, though, it’s worth pondering the hurdles you must
+overcome.
+First, though anyone can learn to write effectively, it takes hard work.
+Good style is something you must strive to attain. In that way it’s like
+skillful golfing: there are comparatively few five-handicappers in the
+world, and they don’t attain that level haphazardly. They work at it. So
+remember: writing is like golf—you can improve, but you’ll have to dedicate yourself to it. The easier path is to be a duffer.
+If you want to become a first-rate writer, you’ll have to make a commitment.
+Second, since you’re in law, you’re already swimming in a sea of bad
+writing. We learn our trade by studying reams of linguistic dreck—jargonfilled, pretentious, flatulent legal tomes that seem designed to dim any
+
+xvii
+
+xviii
+
+Introduction
+
+flair for language. When on the job, we read poor prose almost exclusively.
+It’s wordy and high-flown—oddly antique-sounding. And a little part of
+you may well come to believe that you must sound that way to be truly
+lawyerlike.
+You’ll have to inoculate yourself against legalese.
+Third, the world is complex, and so is our law. You might think that
+good legal writing is necessarily complex. You might even be tempted to
+make your writing more complex than necessary just to impress. Part of
+you will want to do this: you’ll feel the impulse to shun simplicity.
+But you’ll have to be willing to embrace simplicity—while always resisting oversimplification. Of the hurdles we’ve discussed, this will be the
+most difficult. It will require mental candlepower and maturity.
+This brings us to the fourth and final point. You’ll have to be psychologically mature. It’s a prerequisite. After all, law school is a life-changing
+experience. When you’re through with it, you’re a different person—
+maybe a better one. Ultimately, you’ll have to answer a question that your
+parents started helping you answer before you understood a single word:
+what kind of person am I? And every time you write, you’ll be answering
+some related questions: what kind of person am I—on paper? What do I
+sound like?
+If you want to write well, you’ll have to resist sounding like a machine.
+Or a foreign philosopher in translation. You’ll have to learn to sound like
+yourself. It’s even possible that you’ll find yourself by learning to write
+well.
+Yet the rewards are more tangible than that. They’re by-products of
+good writing. Because legal employers prize writing ability more highly
+than almost any other skill, you’ll gain several immediate advantages:
+You’ll be more likely to get whatever job you want.
+You’ll be more likely to be promoted quickly.
+● You’ll have greater opportunities for career mobility, with a broad
+range of possibilities.
+●
+●
+
+If you can write—really write—people will assume certain other things
+about you. The most important is that you’re a clear thinker.
+But you’ll surely encounter some obstacles along the way. You’ll undoubtedly find that time pressures make writing and revising difficult.
+Maybe an employer will tell you that you’re being too clear in your writing—that you should learn to obfuscate. Maybe the advice will be to leave
+a court paper vague so that the specific arguments can be fashioned orally
+before the judge—a seat-of-the-pants approach. Maybe an employer will
+disapprove of your departing from some mind-numbing convention (such
+as doubling up words and numerals) that ill-informed legal writers adhere
+to. Good writers hear all this bad advice and much more. So how are you
+to deal with it?
+The answer is twofold. First, do what you must in the short run. Don’t
+butt heads with someone who refuses to engage in an intelligent discussion about writing. If the person happens to be your supervisor, simply
+
+Introduction
+
+learn what you can from the situation. (The lessons might have more to
+do with the human psyche than with good writing.) Second, don’t lose
+your critical sense; instead, cultivate it. Think independently about why
+you consider some writing good and other writing bad.
+In the end, you might decide to write in a bold, clear, powerful way. It
+will be a struggle for you—in combatting both the natural human tendencies to write poorly and the unnatural pressure from colleagues to write
+poorly. But you’ll have struck a blow for yourself and for the law. You’ll be
+championing clarity, cogency, and truth. The law could certainly stand to
+have those qualities in greater abundance.
+But let’s not get ahead of ourselves. The journey toward clear thinking
+is only beginning.
+
+xix
+
+part one
+Principles for All Legal Writing
+
+There are many different types of legal writing—demand letters, opinion letters, research memos, motions, briefs, judicial
+opinions, contracts, statutes, and ordinances, to name just a
+few. Although each type presents a unique challenge, they all
+have some things in common. That is, certain principles of
+good writing apply to the whole gamut. These 20 principles
+make up Part One, which is divided into three subparts:
+● Framing Your Thoughts
+● Phrasing Your Sentences
+● Choosing Your Words
+Whatever the document, you’ll be doing these things. The 20
+tips that follow should help you do them better.
+
+1
+Framing Your Thoughts
+
+§ 1. Have something to say—and think it through.
+What’s your biggest challenge as a writer? It’s figuring out, from the mass
+of things you might possibly mention, precisely what your points are—
+and then stating them cogently, with adequate reasoning and support.
+Although this advice might seem obvious, legal writers constantly ignore it. The result is a mushy, aimless style. And even with your point
+well in mind, if you take too long to reach it, you might as well have no
+point at all. Only those readers with a high incentive to understand you
+will labor to grasp your meaning.
+That’s where law school comes in. Every law student must read and
+digest scads of diffuse writing. You read through old cases that take forever
+to convey fairly straightforward points. You read law-review articles that
+take 50 pages to say what might be said more powerfully in 5. And as you
+read, your incentive for gleaning the main message remains high because
+your future in law depends on it. You have no choice but to wade through
+the opaque prose.
+Take, for example, a sentence from a judicial opinion. See if you can
+follow the court’s point:
+And in the outset we may as well be frank enough to confess, and, indeed,
+in view of the seriousness of the consequences which upon fuller reflection
+we find would inevitably result to municipalities in the matter of street
+improvements from the conclusion reached and announced in the former
+opinion, we are pleased to declare that the arguments upon rehearing have
+convinced us that the decision upon the ultimate question involved here
+formerly rendered by this court, even if not faulty in its reasoning from the
+premises announced or wholly erroneous in conclusions as to some of the
+questions incidentally arising and necessarily legitimate subjects of discussion in the decision of the main proposition, is, at any rate, one which may,
+under the peculiar circumstances of this case, the more justly and at the
+same time, upon reasons of equal cogency, be superseded by a conclusion
+whose effect cannot be to disturb the integrity of the long and wellestablished system for the improvement of streets in the incorporated cities
+and towns of California not governed by freeholders’ charters.
+
+What’s the court saying? In a highly embellished style, it’s simply saying,
+“We made a mistake last time.” That’s all.
+But if you add sentence after sentence to that embellished statement—
+
+3
+
+4
+
+Part One. Principles for All Legal Writing
+
+filled with syntactic curlicues—you end up with an even more impenetrable morass of words. The only readers who will bother to penetrate it
+are either law students or lawyers who are paid to do so.
+However willing you might be to pierce through another writer’s obscurity, you must as a writer insist on never putting your own readers to that
+trouble. On the one hand, then, you’ll need a penetrating mind as a reader
+to cut through overgrown verbal foliage. On the other hand, you’ll need a
+focused mind as a writer to leave aside everything that doesn’t help you
+swiftly communicate your ideas.
+That’s the key to becoming an effective legal writer.
+
+Exercises
+Begin the following exercises by looking up the cases cited.
+Then write a casenote for each one—that is, a short case synopsis that follows a standard form: (1) case name and citation;
+(2) brief facts; (3) question for decision; (4) holding; (5) reasoning. Your finished product should fit on a five-by-seven-inch index card (front and back). The exercises are increasingly challenging for either or both of two reasons: first, the increasing
+complexity of the legal principles involved; and second, the increasing difficulty of the language used in the opinions. When
+you’re finished, have a friend assess how easy it is to understand what you’ve written.
+Here’s an example of a casenote:
+Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974).
+Facts: While driving in city traffic, Henderson found that, despite repeated
+attempts, she couldn’t brake. To avoid injuring anyone, she ran into a
+pole. An investigator later found that part of a rubber gasket from the
+air filter had gotten into the carburetor. Henderson sued Ford on various theories, including defective design. Her expert witness didn’t criticize the design of the gasket, carburetor, or air filter, but did say that
+the positioning of the parts might have been better. No one testified
+that the air-filter housing was unreasonably dangerous from the time
+of installation. Yet the jury determined that the air-filter housing was
+defective and that this defect had caused Henderson’s damage.
+Question: The expert witness didn’t testify that the design was unreasonably dangerous—only that it could be improved on. Is this testimony
+sufficient to support a jury finding that a product’s design is unreasonably dangerous?
+Holding: Mere evidence that a design could be made better—without evidence that the design itself was unreasonably dangerous—is insufficient to impose liability on a manufacturer.
+Reasoning: A person suing on a design defect must provide some evidence
+that the design of the product made it unreasonably dangerous. Specifically, the evidence must show that a prudent manufacturer who was
+knowledgeable about the risks would not have placed the particular
+product in the stream of commerce. Mere speculation that a product
+might be improved on does not constitute evidence of a design defect.
+A manufacturer is not required to design the best product scientifically
+possible.
+
+§ 2. Plan your writing projects
+
+Basic
+Write a casenote for Serrano-Moran v. Grau-Gaztambide, 195 F.3d 68 (1st
+Cir. 1999). If you belong to a writing group or class, bring a copy of your
+casenote for each colleague.
+Intermediate
+Write a casenote for Floudiotis v. State, 726 A.2d 1196 (Del. 1999). If you
+belong to a writing group or class, bring a copy of your casenote for each colleague.
+Advanced
+Write a casenote for Atlas Food Systems & Services, Inc. v. Crane National
+Vendors, Inc., 99 F.3d 587 (4th Cir. 1996). If you belong to a writing group
+or class, bring a copy of your casenote for each colleague.
+
+§ 2. For maximal efficiency, plan your writing projects.
+Try nonlinear outlining.
+Writers work differently and often experiment with many methods before
+settling into certain habits. But most writers need a way to set down their
+yet-unformed ideas in some way other than a top-to-bottom order.
+Once you have your points in mind—even if they’re not fully formed—
+you’re ready to begin. But you’re not yet ready to begin writing sentences
+and paragraphs. You’re ready to start outlining, which itself can be a
+multistep process. Here we’ll discuss producing an outline that probably
+won’t resemble the outlines you’ve tried for other writing projects. More
+on this in a moment. First, let’s break down the writing process into its
+component parts.
+It’s useful to think of writing as a four-step process:
+1. You think of things you want to say—as many as possible as quickly
+as possible.
+2. You figure out a sensible order for those thoughts; that is, you outline.
+3. With the outline as your guide, you write out a draft.
+4. After setting the draft aside for a matter of minutes or days, you come
+back and edit it.
+These four steps derive from a system developed by Dr. Betty Sue Flowers,
+a University of Texas English professor. She has named each of the steps:
+(1) Madman, the creative spirit who generates ideas; (2) Architect, the
+planner who ensures that the structure is sound and appealing; (3) Carpenter, the builder who makes the corners square and the counters level; and
+(4) Judge, who checks to see whether anything has gone wrong.1 Each
+character represents a separate intellectual function that writers must
+work through.
+The Madman, essentially, is your imagination. This character, though
+brilliant, is almost always sloppy. When you’re in the Madman phase,
+you’re going for copious thoughts—as many as possible. Ideally, though,
+§ 2 1. See Betty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, 44
+Proceedings of the Conference of College Teachers of English 7–10 (1979).
+
+5
+
+6
+
+Part One. Principles for All Legal Writing
+
+you won’t be writing out sentences and paragraphs. Rather, you’ll be jotting down ideas. And if you get into the swing of it, your jottings will be
+fast and furious.
+You’ll need to protect the Madman against the Judge, who detests the
+Madman’s sloppiness. If you don’t save the Judge for later stages in the
+writing, the Madman could be at considerable risk. Writers commonly
+have little battles in their heads if the hypercritical Judge is allowed to
+start censoring ideas even as the Madman is trying to develop them. The
+result is writer’s block. So learn to keep the Judge out of the Madman’s way.
+The other steps are equally important.
+Once you’ve let the Madman come up with ideas—in no particular
+order—the Architect must arrange them. But it’s virtually impossible for
+the Architect to work well until the Madman has had free rein for a while.
+Although initially the Architect’s work might be nonlinear, you’ll ultimately need a linear outline—a plan that shows the steps on the way from
+the beginning, through the middle, to the end. Typically, in legal writing,
+you’ll arrange your points from the most important to the least—and then
+clinch the argument with a strong closer.
+Next is the Carpenter’s turn as leader. This is where the writing begins
+in earnest. Following the Architect’s specifications, the Carpenter builds
+the draft. Of course, these specs make the Carpenter’s job much easier.
+Ideally, the Carpenter writes quickly, treating the outline as a series of
+gaps that need filling in.
+For many people, the carpentry is the least pleasant part of writing.
+They find it difficult to sit down and produce a draft. This problem stems
+largely from skipping the Madman and Architect stages—as if any writer
+could do three things at once: think of ideas, sequence them, and verbalize
+them. That’s not the way it works, even for superb writers. In any event,
+the Carpenter’s job becomes relatively easy if the Madman and Architect
+have done their work.
+Another thing to do, while playing the role of Carpenter, is again to
+keep the Judge out of the way. If you’re constantly stopping yourself to
+edit the Carpenter’s work, you’re slowing yourself down. And you’re getting into a different frame of mind—that of editor, as opposed to writer.
+Still, though, the Carpenter exercises considerable discretion in following
+the Architect’s plans. The Carpenter will make architectural refinements
+here and there when producing paragraphs and sections.
+When you have a draft, no matter how rough, the Judge can finally take
+over. For many writers, this is where the fun begins. You have the makings
+of a solid piece of writing, but now you can fix the ragged edges. The
+Judge does everything from smoothing over rough transitions to correcting
+grammar, spelling, and typos. An alternative name for the Judge is “Janitor” because a big part of what the Judge does is tidy up little messes.
+Each character has an important role to play, and to the extent that you
+slight any of them, your writing will suffer. If you decide, for example, to
+“rough out” a draft by simply sitting down and writing it out, you’ll be
+
+§ 2. Plan your writing projects
+
+starting at the Carpenter phase. You’ll be asking the Carpenter to do not
+just the carpentry, but also the Madman’s and the Architect’s work. That’s
+a tall order. People who write this way tend to procrastinate.
+If you decide that you can begin with Roman numeral I in an outline,
+you’ll still be asking a lot: the Architect will have to dream up ideas and
+sequence them simultaneously. And whatever your I–II–III order happens
+to be will probably become fossilized in later drafts. Most writers’ minds
+aren’t supple enough to allow part IV to become part I(D) in a later draft,
+even if it logically belongs there.
+That’s why it’s critical to allow the Madman to spin out ideas in the
+early phases of planning a piece. In a perfect setting, the ideas come to you
+so rapidly that it’s hard to get them all down as your mind races.
+One way of doing this—and of getting yourself into the Madman frame
+of mind—is to use a nonlinear outline. Among lawyers, the most popular type of nonlinear outline is the whirlybird. It starts out looking like
+this:
+
+7
+
+Part One. Principles for All Legal Writing
+
+al decision here
+
+Actu
+
+w
+
+K
+
+eat
+l thr
+rea
+
+tiou
+ce
+fa
+
+eat
+s t hr
+
+facts
+
+wer/Moores
+Thro
+d
+
+Salient
+
+ett
+Benn d
+is
+d
+
+Dismissal
+for
+threats
+
+Casela
+
+dO
+isse
+ism
+
+s
+on other
+ect
+Eff
+
+nal appeal— upheld
+
+t OK
+l no
+ssa
+mi
+able
+uish
+ing
+ist
+
+threat g
+e
+
+t policy
+
+e of
+Typ
+
+plici
+ex
+
+policy
+licit
+
+in t e r
+
+imp
+
+et
+targ
+
+or discipline
+
+572
+
+nonviolent
+nt or
+e
+l
+o
+vi
+c
+pecifi
+or s
+l
+ra
+kers
+ne
+wor
+o
+c
+
+ef
+Caus
+§19
+
+ples
+Exam
+policies
+orate
+Corp
+
+A shorthand name for the project goes in the center. Then you begin
+adding ideas—the more the better. For every major idea you have, use a
+branch off the center circle. For supporting ideas, try branching off from
+a major branch. Everything you might want to mention goes into the
+whirlybird—which has no top and no bottom. You’re striving for copious
+thoughts without having to worry about getting them in the right order.
+Here’s an example:
+
+Gene
+
+ral principles re wor
+k
+
+plac
+
+e
+
+history at company
+old’s
+Penf
+
+or terminated Penfold
+ervis
+Sup
+
+or took it as serious thr
+ervis
+eat
+Sup
+
+get you for this”
+gonna
+“I’m
+t h re
+
+e on heels of
+r
+e
+a t c am
+p
+r
+ima
+nd
+
+8
+
+Once you’ve finished a whirlybird—whether it takes you ten minutes
+or ten hours—you’ll probably find it easy to work the elements into a
+good linear outline. You’ll know all the materials. It will just be a matter
+of having the Architect organize them sensibly. The next step might look
+like this:
+
+§ 2. Plan your writing projects
+
+Dismissal for Violence at Work
+1. Main issue: Upon being reprimanded, Penfold threatened his supervisor by saying,
+“I’m gonna get you for this!” The supervisor immediately fired Penfold. Was the
+termination justified?
+2. Detailed ƒactual statement
+3. General principles re threatened violence at work
+• Corporate policy statements
+• Type of threat involved
+• General/ specific
+• Violent/nonviolent
+• Effect on others
+• Coworkers
+• Target
+• Examples relating to safety in µodern workplace: OK City, Airport, Post Office.
+4. Caselaw on similar threats: under Thrower/Moores doctrine, dismissal justified
+if threat seems real to reasonable person.
+5. Decision in this case: the ƒacts suggest that threat was real. Internal
+appellate-review board agreed.
+6. Conclusion
+
+Once you have this type of linear outline—something that many writers
+can create only if they do a nonlinear outline first—writing your first draft
+becomes much less intimidating. More on this in a moment.
+Lawyers who have tried using the whirlybird before drafting a linear
+outline commonly cite several advantages:
+As a stress-free way of generating ideas, it encourages creativity. You
+eliminate the straitjacketing effect of As, Bs, and Cs, which can cause
+you to force ideas into premature categories.
+● At the same time, the whirlybird can help in free-form categorizing.
+● It makes getting started fairly easy. You can avoid writer’s block.
+● It helps you think of things you might otherwise miss.
+● As the same idea emerges in different contexts, you can see more
+clearly the interconnections between your ideas.
+● It’s a great way to find your key points—to distill your thoughts.
+● Brainstorming is easier because the creative mind tends to jump back
+and forth. And the whirlybird is an excellent reminder of ideas that
+might otherwise get dropped.
+● Once you know all the options, you can more confidently select what
+your lead will be.
+●
+
+Once the Architect has finished organizing the Madman’s ideas, the Carpenter’s job—the one that writers most often procrastinate on—becomes
+relatively easy. It’s just a matter of elaboration. Further, the Judge will be
+able to focus on tiny matters of form, and that’s what the character is best
+suited for. The Judge shouldn’t have to think on several levels at once.
+If you were to give me a pile of writing samples, I’d critique them according to this paradigm. The writer who allows typos in the final draft
+
+9
+
+10
+
+Part One. Principles for All Legal Writing
+
+needs work on the Judge. The writer who uses no headings (see § 4), and
+for whom it would be difficult to devise headings once a draft is done,
+needs work on the Architect. The writer who has problems with bridging
+(see § 25) needs work on the Carpenter. The writer whose prose is “correct” but dry and dull needs work on the Madman.
+Each character in the Flowers paradigm must have its time as leader.
+What you don’t want to do is let one character dominate so much that the
+others get squeezed out. The writing will suffer.
+Perhaps the most crucial phases—because they’re the most unpredictable and mysterious—are the first two: Madman and Architect. They will
+determine the degree of originality and insight in your writing. If you
+don’t consciously involve them, the Carpenter will waste a lot of time. A
+carpenter must follow plans.
+So, as you can see, writing well is much more than getting the grammar
+and spelling right. Those are matters for the Judge, who in the end will
+tidy things up. Just remember that the Judge part of your brain won’t
+contribute many interesting or original thoughts.
+Although you might fear that you’ll never have time to go through all
+four phases, try it: it’s one of the surest and quickest ways to good writing.
+In a one-hour span, you might spend 10 minutes as Madman, 5 minutes
+as Architect, 25 minutes as Carpenter, and 10 minutes as Judge—with
+short breaks in between. That’s a productive way to spend an hour. But it
+won’t happen without conscious planning. You have to plan how you’re
+going to turn mushy thoughts into polished prose.
+
+Exercises
+Basic
+While planning and researching a legal memo, fill out a whirlybird. (You’re
+ready to begin once you know enough about the problem to have an idea or
+two.) Use unruled paper. Take your time. Fill as many major and minor
+branches as you can, and feel free to add more branches. Then, when the
+paper starts getting full—and only then—create a linear outline using bullets. Remember that you’re working on the basic unit of organization: once
+you have that, you’ll organize further according to issues and answers.
+Intermediate
+Do the same with a trial or appellate brief.
+Advanced
+Do the same with a journal article or continuing-legal-education paper. For
+this one, you might need a large sheet of butcher paper.
+
+§ 3. Order your material in a logical sequence. Use chronology
+when presenting facts. Keep related material together.
+Though ordering your material logically might not seem difficult, it will
+often be one of your biggest challenges. This is especially so because of
+some odd conventions in law. One example among many is the stupefying
+use of alphabetized organization in certain contracts. That is, some forms
+
+§ 3. Order your material in a logical sequence
+
+actually have provisions in alphabetical order according to headings: assignments, default, delivery, indemnity, notices, payment, remedies, and
+so on. A better strategy—if clarity is the goal—is to follow the logic and
+chronology of the deal. In what order are the parties to do things?
+Even when narrating events, legal writers often falter when it comes to
+chronology. Disruptions in the story line frequently result from opening
+the narrative with a statement of the immediately preceding steps in litigation. Here, for example, is a judge’s opener that recites events in reverse
+chronological order—a surprisingly common phenomenon:
+This is an appeal from an order of the Circuit Court of Jackson County
+entered February 10, 1999, affirming the June 20, 1998 order of the Mississippi Workers’ Compensation Commission directing the Jackson County
+School District to pay immediately the assessed amount of $52,218 to the
+South Mississippi Workers’ Compensation Fund.
+
+For most readers, that doesn’t easily compute.
+Even if the order isn’t a reversed chronology, but merely starts in the
+middle of a story, the reader’s difficulties can be great. Consider a beforeand-after example. It comes from an amicus brief submitted to a state
+supreme court, seeking to overturn a lower court’s ruling on an aspect of
+the state’s oil-and-gas law. Here’s the original two-paragraph opener, in
+which the two meanings of hold in the first paragraph present a stumbling block:
+I. Introduction
+The Court of Appeals held that capability of the lease to produce in paying quantities does not hold an oil and gas lease after the primary term and
+that actual marketing is necessary to perpetuate the lease in the secondary
+term. The Court of Appeals’ holding is contrary to the fundamental principle of Arkansas oil and gas law that marketing is not essential to hold a
+lease where there is a well capable of producing in paying quantities.
+The Court of Appeals’ decision will create title uncertainty in thousands
+of oil and gas leases in this state. As this Court is well aware, thousands of
+wells across Arkansas have been shut-in or substantially curtailed from
+time to time. Under the Court of Appeals’ decision, it will be argued that
+many of these currently productive and profitable Arkansas oil and gas
+leases terminated years ago if there was a timeframe when gas was not taken
+from the lease in paying quantities for the period specified in the cessation
+of production clause—often as short a time as sixty days. The issues of this
+case already affect a dozen or more cases now being litigated in Arkansas.
+The Court of Appeals’ decision will encourage waste of a valuable natural
+resource and harm lessors and lessees by requiring continuous marketing
+of gas even at fire-sale prices.
+
+Could you track the argument there? Does it hold any dramatic value?
+Now consider the revision. Note the greater emphasis on story,
+achieved in part simply by highlighting the historical perspective and
+tucking in some transitional words. Note, too, the heightened drama of
+the case (on which millions of dollars were riding):
+
+11
+
+12
+
+Part One. Principles for All Legal Writing
+
+I. Introduction
+Since first considering the issue more than 30 years ago, the Arkansas
+Supreme Court has consistently held that the word “produced”—as used in
+the habendum clause of an oil-and-gas lease—means “capable of producing
+in paying quantities.” The Court of Appeals in this case overrode that settled
+principle by holding that: (1) capability to produce in paying quantities does
+not maintain an oil-and-gas lease after the primary term—rather, gas sales
+and deliveries are necessary to perpetuate a lease in the secondary term; and
+(2) the cessation-of-production clause is a special limitation to the habendum clause. The court further held, incorrectly, that equities may be ignored
+in determining whether a lease terminates.
+These holdings, besides being legally incorrect, are apt to prove catastrophic, since they will create title uncertainty in thousands of oil-and-gas
+leases in this state. As this Court well knows, thousands of wells across
+Arkansas have been shut in or substantially curtailed from time to time.
+Under the new ruling, litigants will argue that many currently productive
+and profitable Arkansas oil-and-gas leases actually terminated years ago
+when, for whatever reason, gas was not taken from a lease in paying quantities for the period specified in the cessation-of-production clause—often as
+short a time as 60 days. Indeed, the issues in this case already affect a dozen
+or more Arkansas cases in various stages of litigation. The Court of Appeals’
+decision, besides encouraging waste of a vital natural resource, and besides
+spawning needless litigation, will harm lessors and lessees alike by requiring continuous marketing of gas, even at fire-sale prices.
+
+Ask yourself about the qualities that distinguish the two versions.
+What is the sequence of each? Which one is more logically organized,
+assuming that these are the first words a reader encounters? Did either
+version make you feel stupid when you first started reading it? What does
+that say about the writing?
+
+Exercises
+Basic
+Improve the sequence of ideas in the following sentence. Start like this: “In
+March 2000, Gilbert Spaulding applied to the Workforce Commission for
+extended unemployment benefits.” Then use one or two extra sentences.
+●
+
+The lower court did not err by affirming the Workforce Commission’s denial of
+Spaulding’s request for extended unemployment benefits, since those benefits were
+not available during the period for which he sought eligibility.
+
+Improve the sequence and phrasing of ideas in these sentences, perhaps by
+breaking them into separate sentences:
+●
+
+The state supreme court reversed the intermediate appellate court’s affirmance of a
+summary judgment granted to Pilsen Corporation, the plaintiff, which had only
+requested a partial summary judgment on the discrete issue of fraud.
+
+●
+
+The issue is whether Davis Energy has granted its neighbors an easement to use a
+private road that enters a Davis fuel-storage yard, when for three years Davis has
+had a guard at the road’s entrance but has posted no other notice about private property or permission to enter, and for seven years the owners of adjacent property have
+used the road to reach their own property.
+
+§ 3. Order your material in a logical sequence
+●
+
+The Plaintiff Los Angeles Dodgers, a corporation with offices and its principal office
+in Los Angeles, California, is the owner of a professional baseball team that, since
+1958, has played baseball in Los Angeles, California, and before 1958 played baseball
+in Brooklyn, New York, under the name “the Brooklyn Dodgers,” but in that year
+moved the site of its home games from Brooklyn to Los Angeles.
+
+Intermediate
+Rewrite the following passages to reassemble the elements in chronological
+order. Again, you might need to break one or more sentences into separate
+sentences.
+●
+
+This action arose out of a request by Pan-American to cancel its surety bond posted
+with the Land Reclamation Commission to ensure reclamation on a portion of the
+Prelancia Fuels mine site. The Commission filed a petition for declaratory judgment
+and application for a temporary restraining order and preliminary injunction on February 16, 1996, to determine whether Pan-American could lawfully cancel its surety
+bond. Pan-American made its request after legislation had been passed that, according to Pan-American, would increase its liability under the bonds. The trial
+judge disagreed with Pan-American. At the request of the Commission, after a brief
+evidentiary hearing, a temporary restraining order and preliminary injunction were
+granted on February 16, 1996, preventing Pan-American from canceling the bond at
+issue until final judgment on the declaratory-judgment action.
+
+●
+
+In Sinclair, the court awarded the niece of Sinclair a constructive trust. Sinclair’s
+niece was suing Purdy’s estate for one-half interest in property that she claimed her
+uncle owned and had promised to bequeath to her in exchange for caring for him
+until his death. The court observed that the property was purchased in his sister’s
+name. This was done for business purposes and because he and his sister shared a
+close relationship. There was also an agreement between the siblings that the sister
+would be allowed to keep only half the property. The court ruled that withholding
+the property from the niece would be a breach of promise; hence, a constructive
+trust was awarded in favor of the niece.
+
+●
+
+Kathcart filed the instant patent application on April 11, 2000, more than one year
+after he filed counterpart applications in Greece and Spain on November 21, 1998.
+Kathcart initially filed an application in the U.S. on November 22, 1997, claiming
+most of the same compounds as in the instant application. When he filed abroad,
+however, in 1998, he expanded his claims to include certain ester derivatives of the
+originally claimed compounds. It is the claims to these esters, which Kathcart has
+made the subject of a subsequent continuation-in-part application, the application
+now before the court, that are the issue here. Both foreign patents issued prior to
+the instant application in the U.S., the Greek patent on October 2, 1999, and the
+Spanish patent on January 21, 2000.
+
+Advanced
+Find a published case in which the presentation of the facts is marred by
+disruptions in chronology. Write a short explanation specifying why the unchronological narrative was difficult for you to read. Rewrite the factual
+statement as best you can, omitting irrelevant facts and putting in brackets
+any facts you might want to add (but weren’t given in the case itself). If you
+belong to a writing group or class, bring a copy of your before-and-after
+versions for each colleague.
+
+13
+
+14
+
+Part One. Principles for All Legal Writing
+
+§ 4. Divide the document into sections, and divide sections into
+smaller parts as needed. Use informative headings for the
+sections and subsections.
+Once you’ve determined the necessary order of your document, you
+should divide it into discrete, recognizable parts. This may well present a
+serious challenge because the legal mind isn’t very good at division. Its
+strength is multiplication—multiplying thoughts and multiplying words.
+Still, with a little effort, you can learn to divide a document into readable
+segments of text. You can do this even as you’re writing.
+While you’re figuring out a structure, make its parts explicit. This will
+help both you and your readers. The more complex your project, the simpler and more overt its structure should be. When writing a memo or brief,
+try thinking of its contents as a series of points you want to make. Each
+point will account for a chunk of the whole—a chunk on this, a chunk on
+that, yet another chunk on this other point. For each of these parts, ask
+yourself, “What would make a pithy section heading here?” Then put it
+in boldface so that it really stands out. You’ll probably need to go even
+further by devising subheadings as well. Small sections are far easier than
+large ones to organize logically. And busy readers welcome having a
+stream of information divided up this way.
+State and federal judges routinely emphasize this point at judicialwriting seminars. They say that headings and subheadings help them keep
+their bearings, let them actually see the organization, and afford them
+mental rest stops. Another advantage they mention is that the headings
+allow them to focus on the points they’re most interested in.
+In fact, headings have many advantages:
+Whether you realize it or not, they help you organize your thoughts
+into categories.
+● They give readers their bearings at a glance.
+● They provide some visual variety to your pages.
+● They make the text skimmable—an important quality for those in
+a hurry.
+● They instantly signal transitions.
+● When collected into a table of contents, they provide a road map for
+the whole document, however long it might be (see § 45).
+●
+
+You’d think these things would be obvious. But to many writers, they’re
+not.
+Let’s take a short example—a paragraph from an amended agreement
+of sale. At first it might look all right:
+4.5 Upon the additional property closing, the Purchaser will:
+(A) authorize the title company to release the additional property escrow funds to the Additional Property Seller;
+(B) execute and deliver such documents as may be reasonably required
+by the Additional Property Seller or the title company;
+(C) deliver a certificate of good standing, a certificate of Purchaser’s corporate existence, and copies of all documents requested by the Ad-
+
+§ 4. Divide the document into sections
+
+ditional Property Seller to show the Purchaser’s corporate existence;
+(D) execute and deliver the additional bill of sale, assuming the obligations under the additional contracts from the date of the additional
+property closing and the obligation relating to the physical and environmental condition of the additional property;
+(E) at the additional property closing, Purchaser and the Additional
+Property Seller will execute and deliver an additional closing statement setting forth the amount held in the additional property escrow and all prorations, adjustments, and credits to that escrow,
+and, if necessary, a post-closing agreement for the additional property closing for any adjustments based on estimates that are to be
+readjusted after the additional property closing.
+
+The problem is that paragraph 4.5 has been plopped into the midst of
+paragraphs 4.1, 4.2, 4.3, 4.4, 4.6, and so on—not one of which has a heading. Without significant effort, the reader won’t be able to see what each
+paragraph is about.
+“Well,” the naysayer might object, “agreements of sale aren’t supposed
+to be pleasure reading. After all, other lawyers are paid to read them!” But
+that’s not really an argument you can make with a straight face. And we’re
+not talking just about making the reader’s task more pleasurable.
+When you put a heading on the paragraph, look what happens:
+4.5 Purchaser’s Obligations upon Closing. Upon the additional property
+closing, the Purchaser will:
+(A) authorize the title company to release the additional property escrow funds to the Additional Property Seller;
+(B) execute and deliver such documents as may be reasonably required
+by the Additional Property Seller or the title company;
+(C) deliver a certificate of good standing, a certificate of Purchaser’s corporate existence, and copies of all documents requested by the Additional Property Seller to show the Purchaser’s corporate existence;
+(D) execute and deliver the additional bill of sale, assuming the obligations under the additional contracts from the date of the additional
+property closing and the obligation relating to the physical and environmental condition of the additional property;
+(E) at the additional property closing, Purchaser and the Additional
+Property Seller will execute and deliver an additional closing statement setting forth the amount held in the additional property escrow and all prorations, adjustments, and credits to that escrow,
+and, if necessary, a post-closing agreement for the additional property closing for any adjustments based on estimates that are to be
+readjusted after the additional property closing.
+
+Subparagraph (E) suddenly sticks out: it doesn’t fit within the category of
+the heading, and it doesn’t fit with the other subparagraphs. (On parallelism, see § 9.) We’ll need to do something about it. Depending on the larger
+context, we’ll either put it as a subparagraph somewhere else or make it a
+paragraph of its own. But all this might have been difficult to see if we
+
+15
+
+16
+
+Part One. Principles for All Legal Writing
+
+hadn’t gone to the trouble to think about headings for every decimallevel paragraph.
+A device as simple as headings can help you think more clearly.
+
+Exercises
+Basic
+Find a pre-1950 law-review article or treatise with long stretches of text
+uninterrupted by headings. Devise appropriate headings. If, as a result of
+this exercise, you find that the organization is poor, note the organizational
+deficiencies. If you’re a member of a writing group or class, bring a copy of
+the relevant pages and be prepared to explain where your headings would
+go and to discuss any organizational problems you uncovered.
+Intermediate
+In a state administrative code, find a regulation having at least three sections with headings that don’t adequately describe the sections’ contents.
+Devise better headings. If you’re a member of a writing group or class, be
+prepared to explain why your edits would improve the regulation.
+Advanced
+Find a proxy statement or prospectus with long stretches of uninterrupted
+text. Break up the long paragraphs into smaller paragraphs and add headings
+where appropriate. For a model of this approach, see Garner, Securities Disclosure in Plain English §§ 41–43 (1999). If, as a result of this exercise, you
+find that the organization is poor, note the organizational deficiencies. If
+you’re a member of a writing group or class, bring a copy of the relevant
+pages and be prepared to explain where your headings would go and to discuss any organizational problems you uncovered.
+
+2
+Phrasing Your Sentences
+
+§ 5. Omit needless words.
+Three good things happen when you combat verbosity: your readers read
+faster, your own clarity is enhanced, and your writing has greater impact.
+Both you and your readers benefit.
+The following sentence, at 35 words, isn’t grossly overlong, but it’s still
+quite verbose. It comes from the Code of Federal Regulations:
+It is not necessary that an investment adviser’s compensation be paid directly by the person receiving investment advisory services, but only that
+the investment adviser receive compensation from some source for his or
+her services.
+
+Nearly two-thirds of the sentence can be cut with no loss in meaning—
+but with enhanced speed, clarity, and impact:
+Although the investment adviser must be paid, the source of the payment
+does not matter.
+
+Imagine how this helps in sentence after sentence, paragraph after paragraph.
+Take a longer sentence, at 79 words, from a recent law-review article:
+Since, under the Equal Employment Opportunity Commission Guidelines
+pertaining to sexual harassment, an employer is liable for hostileenvironment sexual harassment only if it knew or should have known of
+the harassment and failed to take prompt and effective steps to end the
+harassment, it is possible for employers to be exonerated from liability for
+hostile-environment sexual harassment when sexual harassment has occurred by individuals within an organization, but the organization took
+prompt action to prevent further harassment.
+
+That sentence meanders. And its basic point tends to get lost in the welter
+of words. Cut to its essence, the thought itself seems more coherent:
+EEOC Guidelines allow courts to exonerate an employer from liability for
+hostile-environment sexual harassment if the employer acts promptly to
+prevent further harassment.
+
+At 24 words, the rewrite is two-thirds shorter than the original. But that
+figure only hints at the heightened vigor and lucidity.
+The English language has vast potential for verbosity. Almost any writer
+can turn a 15-word sentence into a 20-word sentence that says the same
+
+17
+
+18
+
+Part One. Principles for All Legal Writing
+
+thing. Many writers could make it a 30-word sentence. And a truly skilled
+verbiage-producer could make it 40 words without changing the meaning. In fact, almost all writers unconsciously lengthen their sentences in
+this way.
+Reversing this process is a rare art, especially when you’re working
+with your own prose. You see, you’re likely to produce first drafts that are
+middlingly verbose—each sentence being probably a quarter or so longer
+than it might be. If you know this, and even expect it, you’ll be much less
+wedded to your first draft. You’ll have developed the critical sense needed
+to combat verbosity.
+
+Exercises
+Basic
+Delete at least four consecutive words in the following sentences and replace those words with just one word. You may rephrase ideas and rearrange
+sentences, but don’t change the meaning.
+●
+
+Even assuming that the fog caused injury to Roelke, Amskills had no duty to prevent that injury because it was idiosyncratic and Amskills could not have been
+expected to foresee such injury.
+
+●
+
+At no time prior to the initial public offering did the underwriters or any officers,
+directors, or employees have knowledge of any facts that would suggest that “Palm
+Harbor” could not be completed on schedule and in accordance with specifications.
+
+●
+
+Beale has wholly failed to allege facts that, if true, would establish that competition
+among the nation’s law schools would be reduced or that the public has been in
+any way injured, and this failure to allege facts that would establish an injury to
+competition warrants the dismissal of her restraint-of-trade claim.
+
+●
+
+The Business Corporation Law does not address the ability of a New York corporation to indemnify individuals who are not its employees.
+
+●
+
+The court examined a number of cases and stated that there appeared to be only a
+limited number of instances in which there would exist a duty to disclose the illegal
+conduct of persons who, through political campaigns, seek election to a public
+office.
+
+Intermediate
+Revise the following sentences to make them as lean as you can without
+changing the meaning:
+●
+
+The County sent an inspector who made observations as to the condition of the
+sidewalk and concluded that it was uneven.
+
+●
+
+Although a review of the caselaw reflects that there are no decisions in the Eleventh
+Circuit concerning this issue, the great weight of federal authority favors the exclusion of third parties from a Rule 35 independent medical examination.
+
+●
+
+There is caselaw for the proposition that use restrictions are not always strictly
+enforced when a lease is assigned by a tenant in bankruptcy and the property in
+question is not part of a shopping center.
+
+●
+
+The court appeared to premise much of its opinion upon the argument that consumers stand at a significant disadvantage in product-liability actions based on ordinary
+negligence principles. Consequently, strict product liability was intended to relieve
+the plaintiff of the burden of having to prove actual negligence.
+
+§6. Keep average sentence length to about 20 words
+●
+
+With respect to matters not covered by the provisions of the Uniform Rules for the
+New York Court of Claims (the Uniform Rules), the Court of Claims adheres to the
+rules set forth in the Civil Practice Law and Rules (the CPLR). Ct. Cl. R. § 206.1(c).
+Because the Uniform Rules do not discuss disclosure of expert witnesses, it follows
+that the Court of Claims’ rules on the subject are governed by the CPLR.
+
+●
+
+There are cases that are factually similar to the present case, but that are controlled
+by older statutes—i.e., the pre-1965 legislative scheme. There are no cases that have
+been explicitly decided under § 1511 since the 1965 amendment, so it is unclear
+what effect the amendment has on cases that are factually similar to the present
+case.
+
+●
+
+Arbitration as a means of settling disputes was at first viewed by the courts with
+much disfavor, but today is being used increasingly as a substitute for litigation for
+the adjudication of disputes arising out of contracts.
+
+●
+
+The court rejected the defendant’s argument that the headlines were not the product
+of sufficient skill or effort, finding that because many of the headlines consisted of
+eight or so words that imparted information, copying of the headlines might at least
+in some instances constitute copyright infringement.
+
+●
+
+To say that one who has contracted to serve for a number of years at a low salary or
+at distasteful work and seeks to better his or her condition by a contract with another party should be penalized in every case by inability to enforce this second
+contract seems harsh, and under these or other extenuating circumstances, the
+courts have often deemed damages to be sufficient recompense to the injured employer without also invalidating the second contract.
+
+Advanced
+Rewrite the following 193-word paragraph in fewer than 130 words without
+changing the meaning:
+In addition to the two cases cited just above, both (as mentioned) dealing with the
+California State Bar Rules of Conduct, Rule 3–310 of the California State Bar
+Rules of Professional Conduct describes circumstances in which an attorney is
+embroiled in the representation of adverse interests. Rule 3–310 is concerned primarily with situations in which the attorney’s duty of loyalty and duty of confidentiality to clients are called into question. Therefore, to date, there are no Rule
+3–310 cases disqualifying a district attorney as a result of a prosecution of an
+individual whom the district attorney used or is used as a witness in another
+prosecution. Most cases that involve district-attorney conflicts under Rule 3–310
+consist of a former attorney-client relationship between an accused and a district
+attorney. In such cases, the rule serves to protect an accused from a prosecution
+in which a district attorney unfairly benefits from information gained during the
+course of his or her representation of the accused. Other Rule 3–310 cases involve
+overzealous prosecutions in cases where a district attorney is for one reason or
+another personally or emotionally interested in the prosecution of the accused.
+
+or
+Find a wordy sentence that you can reliably cut in half without changing
+the meaning. Cut it. If you’re a member of a writing group or class, bring a
+copy of the before-and-after versions for each colleague.
+
+§ 6. Keep your average sentence length to about 20 words.
+The length of your sentences will determine the readability of your writing as much as any other quality. That’s why readability formulas rely so
+heavily on sentence length.1
+§ 6 1. See, e.g., Rudolf Flesch, How to Write in Plain English: A Book for Lawyers and Consumers
+20–27 (1979); Robert Gunning, The Technique of Clear Writing 32–34 (1952).
+
+19
+
+20
+
+Part One. Principles for All Legal Writing
+
+Not only do you want a short average; you also need variety. That is,
+you should have some 35-word sentences and some 3-word sentences, as
+well as many in between. But monitor your average, and work hard to keep
+it to about 20 words.
+In law, many things converge to create overlong sentences. One is the
+lawyer’s habit of overparticularization—the wretched practice of trying to
+say too many things at once, with too much detail and too little sense of
+relevance (see § 23). Another is the fear of qualifying a proposition in a
+separate sentence, as if an entire idea and all its qualifications must be
+squeezed into a single sentence. A third is the nonsense baggage that so
+many writers lug around: the idea that it is poor grammar to begin a sentence with And or But. And a fourth is the ill-founded fear of being simple
+and, by implication, simpleminded—of perhaps seeming to lack sophistication.
+Many legal writers suffer from these turns of mind. And the ones who
+do must work hard if they wish to pursue a clear, readable style.
+Is a 20-word goal realistic? Many good writers meet it, even when discussing difficult subjects. Consider how Professor W.W. Buckland—with
+an average sentence length of 13 words—summed up part of the philosopher John Austin’s thought:
+Austin’s propositions come to this. There is in every community (but he
+does not really look beyond our community) a person or body that can enact
+what it will and is under no superior in this matter. That person or body he
+calls the Sovereign. The general rules that the Sovereign lays down are the
+law. This, at first sight, looks like circular reasoning. Law is law since it is
+made by the Sovereign. The Sovereign is Sovereign because he makes the
+law. But this is not circular reasoning; it is not reasoning at all. It is definition. Sovereign and law have much the same relation as center and circumference. Neither term means anything without the other. In general what
+Austin says is true for us today, though some hold that it might be better to
+substitute “enforced” for “commanded.” Austin is diffuse and repetitive and
+there is here and there, or seems to be, a certain, not very important, confusion of thought. But with the limitation that it is not universally true, there
+is not much to quarrel with in Austin’s doctrine.2
+
+The style is bold, confident, and quick. More legal writers ought to emulate it.
+But is this type of style achievable in law practice? You bet. Here’s a
+splendid example from a response to a motion to continue, by Thomas D.
+Boyle of Dallas:
+Gunther demanded an early trial date and breakneck discovery. What
+Gunther wanted, Gunther got. Now that Findlay seeks a hearing on its
+summary-judgment motion, however, Gunther wants to slam on the brakes,
+complaining that it needs more time to gather expert opinions. Gunther
+ostensibly demanded the accelerated trial date to force a prompt resolution
+of its claims. Gunther may now have that resolution, but does not want it.
+2. W.W. Buckland, Some Reflections on Jurisprudence 48 (1945).
+
+§ 7. Keep average sentence length to about 20 words
+
+Must Findlay’s motion, already delayed once, be delayed again to accommodate Gunther’s tactical timetable? . . .
+Gunther’s motion to continue is tactical only. It lacks authority and
+merit. It is no more than an attempt to get more time to answer Findlay’s
+motion for summary judgment, which has already been reset once. Even so,
+by the time Findlay’s motion is heard on August 13, Gunther will already
+have had eight weeks to prepare a response. If Gunther wants to defeat Findlay’s motion, it needs only to identify disputed facts for each point in the
+motion. Indeed, Gunther spends much of its motion for continuance arguing the merits. Rather than wasting time and money with its delay tactics, Gunther should simply address the points in Findlay’s motion head on.
+If Gunther shows the existence of genuine factual issues, then so be it.
+
+Although these sentences vary in length, the average is just 15 words. The
+variety, coupled with the short average, improves readability and generates
+speed and interest.
+
+Exercises
+Basic
+Break each of the following long sentences into at least three separate sentences:
+●
+
+Appellee Allied Indemnity of New York respectfully suggests that oral argument
+would be of little benefit because the dispositive issue has been recently authoritatively decided by the Texas Supreme Court in National Union Fire Insurance Co.
+v. CBI Industries, Inc., 907 S.W.2d 517 (Tex. 1995), and by this Court in Constitution State Insurance Co. v. Iso-Tex, Inc., 61 F.3d 405 (5th Cir. 1995), because the
+facts and legal arguments are adequately presented in the briefs and record, and
+because the decisional process would not be significantly aided by oral argument.
+[91 words]
+
+●
+
+Although no Kansas cases were found that explicitly hold that Kansas requires a
+corporation to have a valid business purpose in order to engage in certain specified
+corporate transactions, either for mergers or consolidations, or for a sale of assets
+followed by a dissolution and liquidation, in a 1994 Supreme Court of Kansas case
+involving a cash-out merger where the dissenters claimed the defendant’s board of
+directors breached its fiduciary duties to the dissenters, the court cited as one of the
+trial court’s pertinent conclusions of law that it is not necessary for a corporation
+to show a valid corporate purpose for eliminating stockholders. [105 words]
+
+●
+
+The court of appeals noted that the Environmental Protection Agency (EPA) had
+already issued the applicant a National Pollution Elimination System permit for
+the actual discharge of wastewater, which would occur from the outfall pipe, and
+that the issuance and conditions of such permits were generally exempt under the
+Clean Water Act from compliance with the Environmental Impact Statement (EIS)
+requirement, and accordingly the court concluded that the Corps had properly excluded the environmental implications of the discharges from the outfall pipe from
+its analysis and instead considered only the construction and maintenance of the
+pipeline itself in determining that the issuance of the permit did not constitute a
+major federal action. [112 words]
+
+Intermediate
+Rewrite the following passages to make the average sentence length under
+20 words:
+
+21
+
+22
+
+Part One. Principles for All Legal Writing
+●
+
+At best, the lack of precise rules as to the treatment of routine corporate transactions forces investors and others who seek to understand accounting statements in
+all of their complex fullness to wade through pages of qualifying footnotes, the effect of which is often to express serious doubts about the meaningfulness and accuracy of the figures to which the accountants are attesting. Equally bad, while the
+footnotes, carefully read and digested, may enable the sophisticated analyst to arrive
+at a reasonably accurate understanding of the underlying economic reality, the comparison of figures published by one firm with those of any other is bound to result
+in seriously misleading distortions. Indeed, the figures for any given company may
+not be comparable from one year to the next, for although auditing standards require
+that the principles used by a firm must be “consistently applied” from year to year,
+the “presumption” of consistency may be overcome where the enterprise justifies
+the use of an alternative acceptable accounting principle on the basis that it is preferable. [Average sentence length: 57 words]
+
+●
+
+It follows that in order for Wisconsin to compel school attendance beyond the eighth
+grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free
+exercise of religious belief by its requirement, or that there is a state interest of
+sufficient magnitude to override the interest claiming protection under the Free
+Exercise Clause. Long before there was general acknowledgment of the need for
+universal formal education, the Religion Clauses had specifically and firmly fixed
+the right to free exercise of religious beliefs, and buttressing this fundamental right
+was an equally firm, even if less explicit, prohibition against the establishment of
+any religion by government. The values underlying these two provisions relating to
+religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to
+parochial schools by government grants for a salary subsidy for teachers is but one
+example of the extent to which courts have gone in this regard, notwithstanding
+that such aid programs were legislatively determined to be in the public interest
+and the service of sound educational policy by states and by Congress. [Average
+sentence length: 51 words]
+
+●
+
+Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built
+wood-and-canvas lawn chair that was then and there located in the back yard of the
+above described premises, moved it sideways a few feet and seated himself therein,
+at which time he discovered that the plaintiff, Ruth Garratt, was about to sit down
+at the place where the lawn chair had formerly been, at which time he hurriedly
+got up from the chair and attempted to move it toward Ruth Garratt to aid her in
+sitting down in the chair, whereupon, due to the defendant’s small size and lack of
+dexterity, he was unable to get the lawn chair under the plaintiff in time to prevent
+her from falling to the ground. [Average sentence length: 126 words]
+
+●
+
+Since it is undisputed that the sugar was stolen, and that it was purchased by Johnson, the question at issue for jury determination is the state of Johnson’s mind when
+he purchased it. While the jury is unauthorized to convict unless it finds that Johnson himself had guilty knowledge, such knowledge may be proved by circumstances
+here to warrant the conclusion that Johnson, when he purchased the sugar, knew it
+to have been stolen, and did not in fact honestly believe that the sellers were sugar
+dealers or were properly authorized by the Ralston Mill to sell sugar for it. In arriving at this conclusion, the jury might have considered the time and arrangements
+for the purchases, statements of Johnson to Gordon showing that he knew that he
+was taking a risk, the absence of any invoice or regular billing procedure, the contradictory statements of Johnson after his arrest, and the unlikelihood of the sellers’ having come into possession of such large quantities of sugar to be sold below wholesale price in a legal manner. [Average sentence length: 58 words]
+
+§ 7. Keep the subject, the verb, and the object together
+
+Advanced
+Find a published piece of legal writing in which the average sentence length
+exceeds 40 words. Rewrite it to make the average under 20.
+
+§ 7. Keep the subject, the verb, and the object together—toward
+the beginning of the sentence.
+Once you’ve worked to create sentences of manageable length, the next
+step is to arrange the elements of your sentences in a logical order. A
+sentence has two vital elements: a subject and a predicate (typically consisting of a verb and an object). It seems simple:
+The partnership may buy a bankrupt partner’s interest.
+
+But legal sentences get complicated, and legal writers often complicate
+them unduly by separating the vital words:
+If any partner becomes a bankrupt partner, the partnership, at its sole option, exercisable by notice from the managing general partner (including
+any newly designated managing general partner) to the bankrupt partner (or
+its duly appointed representative) at any time prior to the 180th day after
+receipt of notice of the occurrence of the event causing the partner to become a bankrupt partner, may buy, and upon the exercise of this option
+the bankrupt partner or its representative shall sell, the bankrupt partner’s
+partnership interest.
+
+Even if you needed some of the details in that second version, you’d be
+better off keeping the related words together, at the outset:
+The partnership may buy any bankrupt partner’s interest. To exercise its
+option to buy, the managing general partner must provide notice to the
+bankrupt partner no later than 180 days after receiving notice of the event
+that caused the bankruptcy.
+
+The reason you should put the subject and verb at or near the beginning
+is that readers approach each sentence by looking for the action. So if a
+sentence has abundant qualifiers or conditions, state those after the subject and verb. Itemize them separately if you think a list might help the
+reader. You’d certainly want to restructure a sentence like this one:
+In the event that the Indemnitor shall undertake, conduct, or control the
+defense or settlement of any Claim and it is later determined by a court
+that such Claim was not a Claim for which the Indemnitor is required to
+indemnify the Indemnitee under this Article VI, the Indemnitee shall, with
+reasonable promptness, reimburse the Indemnitor for all its costs and expenses with respect to such settlement or defense, including reasonable attorney’s fees and disbursements.
+
+Putting the subject and predicate up front, as well as listing the two conditions separately (see § 34), makes the sentence easier to understand:
+
+23
+
+24
+
+Part One. Principles for All Legal Writing
+
+The Indemnitee must promptly reimburse the Indemnitor for all its costs
+and expenses of settlement and defense, including reasonable attorney’s fees
+and disbursements, if:
+(a) the Indemnitor undertakes, conducts, or controls the defense or settlement of any claim; and
+(b) a court later determines that the claim was not one for which the Indemnitor must indemnify the Indemnitee under this Article VI.
+
+Remember: related words go together.
+
+Exercises
+Basic
+Edit the following sentences to cure the separation of related words:
+●
+
+Ms. Lenderfield, during the course of her struggle to provide for her children as a
+single parent, accrued considerable debt to her family and others.
+
+●
+
+Chesapeake’s assertion that it is not a proper defendant in this case and, therefore,
+that relief cannot be granted is incorrect.
+
+●
+
+The court, in finding that Officer McGee was acting more as a school employee
+than as a police officer in searching Robinson, ruled that an official’s primary role
+is not law enforcement.
+
+Intermediate
+Edit the following sentences to cure the separation of related words:
+●
+
+Plaintiff’s testimony that he had never had a back injury and had never been treated
+by a doctor for a back ailment before this workplace accident is suspect.
+
+●
+
+The Trustee, at any time, by an instrument in writing executed by the Trustee,
+with the concurrence of the City Council evidenced by a resolution, may accept the
+resignation of or remove any cotrustee or separate trustee appointed under this
+section.
+
+●
+
+In Barber v. SMH (US), Inc., the Michigan Court of Appeals held that the plaintiff’s
+reliance on a statement made by the defendant that “as long as he was profitable and
+doing the job for the defendant, he would be defendant’s exclusive representative” as
+establishing an oral contract for just-cause employment was misplaced.
+
+●
+
+Taxes imposed by any governmental authority, such as sales, use, excise, grossreceipts, or other taxes relating to the equipment, except for the personal-property
+tax, for which Biltex, Inc. is assessed and liable by applicable law, must be reimbursed by Calburn, Inc.
+
+Advanced
+Find a published legal example of either subject–verb separation or verb–
+object separation. (The worse the separation, the better your example.) Retype the sentence, with the citation, and then type your own corrected version below it. If you’re a member of a writing group or class, bring a copy of
+your page for each colleague, and be prepared to discuss your work.
+
+§ 8. Prefer the active voice over the passive.
+Remember it this way: if you’re active, you do things; if you’re passive,
+things are done to you. It’s the same with subjects of sentences. In an
+
+§ 8. Prefer the active voice over the passive
+
+active-voice construction, the subject does something (The court dismissed the appeal). In a passive-voice construction, something is done to
+the subject (The appeal was dismissed by the court).
+The active voice typically has four advantages over the passive:
+It usually requires fewer words.
+It better reflects a chronologically ordered sequence (active: actor →
+action → recipient of action), as opposed to the reverse (passive: recipient of action → action → actor).
+● It makes the reader’s job easier because its syntax meets the Englishspeaker’s expectation that the subject of a sentence will perform the
+action of the verb.
+● It makes the writing more vigorous and lively.
+●
+●
+
+Although these advantages generally hold true, they are not absolutes.
+You’ll find exceptions from time to time—situations in which you’ll want
+the passive (as when the actor can’t be identified or is relatively unimportant). If you can reliably spot passive-voice constructions, and quickly
+assess the merits of an active-voice alternative, you’ll be able to make
+sound judgments.
+Reliably spotting the passive is your biggest challenge. Less than 50%
+of lawyers can do it consistently. But it’s not so hard. Here’s a fail-safe test:
+if you see a be-verb (such as is, are, was, or were) followed by a past participle (usually a verb ending in -ed), you have a passive-voice construction.
+Look for phrases like these:
+is
+are
+was
+were
+been
+being
+be
+am
+
+dismissed
+docketed
+vacated
+reversed
+filed
+affirmed
+sanctioned
+honored
+
+So all the following sentences are passive:
+● In 1998, only ten executives were covered by Article 12.
+● Prospective investors are urged to consult their own tax advisers.
+● The 2001 Plan is intended to facilitate key employees in earning a
+greater degree of ownership interest in the Company.
+We can improve these sentences by changing them to active voice:
+● In 1998, Article 12 covered only ten executives.
+● We urge prospective investors to consult their own tax advisers.
+● With our 2001 Plan, we intend to help key employees obtain a
+greater ownership interest in the Company.
+With a little effort, you’ll find yourself marking passages in this way:
+
+25
+
+26
+
+Part One. Principles for All Legal Writing
+
+In the absence of proper venue, this Court should dismiss the petition.
+B. Venue is improper in this district, and the petition should (be dismissed).
+ERISA venue provision (29 U.S.C. § 1132(e)(2)) governs the
+The Plaintiff’s choice of forum . in this instance (is governed ) by the ERISA
+venue provision, 29 U.S.C. § 1132(e)(2). Section 1132(e)(2) does not allow the plaintif
+
+to maint f
+ain
+
+this action to ( be maintained) in the Eastern District of New York. Further,
+
+Court should dismiss the
+
+this action should ( be dismissed) under 28 U.S.C. § 1406(a) because the
+Plaintiff is engaged in blatant forum-shopping. In such circumstances, it is
+
+Court need not transfer the case ,
+
+not required that the case be transferred, since the Defendants do not have
+significant contacts with the Eastern District of New York:
+
+unsuccessful
+
+of
+
+• At the time when the Plaintiff’s claim for benefits was denied, the
+
+kept offices
+
+offices of the Plan Administrator were located in Bethlehem,
+Pennsylvania.
+• As of September 10, 1999, the offices of the Plan Administrator
+
+( were moved) to Omaha, Nebraska. does not
+
+an office
+
+• No office of the Plan Administrator (is maintained) in the Eastern
+District of New York.
+
+’s
+
+insurer ,
+
+• The benefits under the Plan (are insured) by Cosmopolitan Casualty
+and Life, in New York.
+
+operates
+
+Plaintiff also lacks any connection to the Eastern District of New York.
+When she filed her claim for benefits, she resided in Manhattan, which ( is
+located ) in the Southern District of New York. Plaintiff currently resides in
+Westchester County, which is likewise in the Southern District.
+
+Once you learn to mark pages that way, you’ll have mastered passive
+voice. And in gaining this skill, you’ll find that there are many subtleties.
+One of these is that, in some passive-voice constructions, the be-verb
+is understood in context. That is, although a grammarian would say it’s
+implied, you won’t be able to point to it in the sentence. For example:
+Last week, I heard it argued by a client that national insurance should cover
+all legal fees.
+
+Grammatically speaking, that sentence contains the implied verb being
+after the word it, so part of the sentence (not I heard, but it argued) is in
+the passive voice. To make it active, you’d write:
+Last week, I heard a client argue that national insurance should cover all
+legal fees.
+
+In sum, the active voice saves words, says directly who has done what,
+and makes for better, more interesting prose.
+
+§ 8. Prefer the active voice over the passive
+
+Exercises
+Basic
+Edit the following sentences to eliminate the passive voice:
+●
+
+Testimony was heard from the plaintiff and from three witnesses on behalf of the
+corporation.
+
+●
+
+This is a purely legal question to be determined by the court.
+
+●
+
+McCormick’s motion for partial summary judgment on the duty to defend should
+be denied.
+
+●
+
+Plaintiff’s opposition violates Rule 313 of the California Rules of Court and may be
+disregarded by the court.
+
+Intermediate
+Count the passive-voice constructions in the following paragraphs. Decide
+which ones you would change to active voice. Change them.
+●
+
+The intention of the donor is established at the moment the funds are dedicated to
+a charitable cause. This dedication imposes a charitable trust for the donor’s objective as effectively as if the assets had been accepted subject to an express limitation
+providing that the donation was to be held in trust by a trustee solely for the purpose
+for which it was given. It is imperative that the objectives of individuals who give
+to charity be strictly adhered to.
+
+●
+
+There are situations in which a motion for rehearing should be granted. Before the
+enactment of CPLR § 5517, it was held that when such a motion was granted, any
+appeals from the prior order would be dismissed. The CPLR was amended to “alter
+caselaw holding that an appeal from an order had to be dismissed upon entry in the
+court below of a subsequent order.” [Citation.] Thus today, § 5517(a) states that after
+a notice of appeal from an order has been served, the original appeal will not be
+affected if a motion for rehearing is entertained. The appeal will be neither mooted
+nor canceled by the grant or denial of a motion for rehearing.
+
+●
+
+Jurisdiction was conferred on the district court by 28 U.S.C. § 1331. The complaint
+was dismissed with prejudice on March 31, 1999, and judgment was entered in favor
+of the Cauthorns. A timely notice of appeal was filed by Perkins on April 7, 1999.
+Jurisdiction is conferred on this court by 28 U.S.C. § 1291.
+
+●
+
+During the taxable years at issue, the replacement fuel assemblies had not begun to
+be used by the company for their specifically assigned function, namely, to generate
+electrical power through nuclear fission. Nor were the assemblies placed in a state
+of readiness for their intended use during the years in which they were acquired.
+That did not occur until the spring of 2000, when, after more than a year of careful
+planning, the reactor was shut down, various maintenance tasks were performed,
+spent fuel assemblies were removed, the reactor was reconfigured using the new
+fuel assemblies in conjunction with partially spent assemblies that were not replaced, and low power testing was performed to ensure that the reconfigured reactor
+core performed safely in accordance with specifications. Only after those procedures
+had been successfully completed did the replacement fuel assemblies generate salable electric power and, hence, income to taxpayer. Only at that point could the
+replacement fuel assemblies be considered to have been placed in service.
+
+Advanced
+Find a published passage—two or three paragraphs—in which more than
+50% of the verbs are in the passive voice. Retype it, providing the citation.
+Then, beneath the original, show your rewritten version.
+
+27
+
+28
+
+Part One. Principles for All Legal Writing
+
+or
+In the literature on effective writing, find three authoritative discussions of
+the situations in which the passive voice can be preferable to the active.
+Consolidate what those authorities say. In how many situations is the passive voice better?
+
+§ 9. Use parallel phrasing for parallel ideas.
+Just as you should put related words together in ways that match the
+reader’s natural expectations, you should also state related ideas in similar
+grammatical form. Parallelism harmonizes your language with your
+thoughts. At its simplest, it’s a device for balancing lists:
+Adverbs
+
+The jury weighed the evidence carefully, skillfully, and wisely.
+Adjectives
+
+The arguments were long, disorganized, and unpersuasive.
+Nouns
+
+The facilities are available to directors, officers, and corporate
+counsel.
+Verbs
+
+The perpetrator drove to Minnesota, changed cars, and dropped the
+box on the side of the road outside St. Paul.
+Avoid constructions in which the listed elements don’t match, as here:
+To prove a claim of false advertising under the Lanham Act, Omega must
+show that Binnergy (1) made a false or misleading statement, (2) that actually deceived or was likely to deceive a substantial segment of the advertisement’s audience, (3) on a subject material to the decision to purchase goods
+or services, (4) about goods or services offered in interstate commerce, (5)
+that resulted in actual or probable injury to Omega.
+
+In that example, #1 is a predicate, #2 is a subordinate clause beginning
+with that, #3 and #4 are prepositional phrases, and #5 is another thatclause. Let’s instead try leading off all the items with verbs, using only
+one that to introduce the list:
+To prove a claim of false advertising under the Lanham Act, Omega must
+show that Binnergy made a statement that (1) was false or misleading, (2)
+actually deceived or was likely to deceive a substantial segment of the advertisement’s audience, (3) related to a subject material to the decision to purchase goods or services, (4) related to goods or services offered in interstate
+commerce, and (5) resulted in actual or probable injury to Omega.
+
+The English language has many methods of phrasing that require parallelism. They’re called “correlative conjunctions,” and they frame matching parts. The four most common pairs are these:
+both . . . and
+either . . . or
+
+§ 9. Use parallel phrasing for parallel ideas
+
+neither . . . nor
+not only . . . but also
+
+For example, if a verb follows not only, then a verb must likewise follow
+but also. Here, though, the writer got it wrong:
+Domestic violence is a force that causes suffering not only to the victim of
+an attack, but it also has detrimental effects on any children in the home.
+
+The sentence needs matching parts for the not only . . . but also construction. This revision fills the need:
+Domestic violence causes suffering not only to the victim of an attack but
+also to any children in the home.
+
+Be sure that you phrase corresponding ideas within a sentence so that
+they correspond grammatically. This shows an orderly mind at work.
+
+Exercises
+Basic
+Revise the following sentences to cure the unparallel phrasing:
+●
+
+The court relied heavily on the district court’s statement that the would-be intervenors retained the right to appear through counsel, to participate in the fairness hearing, to conduct discovery, and standing to appeal the court’s approval or disapproval
+of the class-action settlement.
+
+●
+
+Tenant will probably not be able to have the lease declared void and unenforceable
+for vagueness because it contains all the essential elements of a lease: a description
+of the premises, the amount of rent to be paid, the term of the lease, and identifies
+the parties.
+
+●
+
+The Younger doctrine also applies to a state civil proceeding that is (1) ongoing, (2)
+implicates important state interests, and (3) affords an adequate opportunity to raise
+federal claims.
+
+Intermediate
+Rewrite the following paragraph from a loan agreement so that you highlight the parallel phrases. The parenthetical letters—except for “(A)”—have
+been deleted. Simply reinsert the missing parenthetical letters “(B)” and
+“(C)” for the phrases that are parallel to the phrase introduced by “(A).”
+Study the passage first. Once you’ve decided where the letters should go,
+set off the listed items separately (see § 34). You might want to edit the
+sentence, of course. But be careful not to change the meaning.
+2.1 No Default or Violation of the Law. The execution and delivery of this Loan
+Agreement, or the bond indenture, and any other transaction documents by
+the Authority, will not result in a breach of the terms of, or constitute a default
+under, (A) any indenture, mortgage, deed of trust, lease, or other instrument
+to which the Authority is a party or by which it or any of its property is bound
+or its bylaws or any of the constitutional or statutory rules or regulations applicable to the Authority or its property.
+
+Advanced
+Revise the following sentences to cure the unparallel phrasing:
+●
+
+The essential elements of a fraud claim under New York law are that:
+(1) the defendant made a misrepresentation
+(2) of a material fact
+
+29
+
+30
+
+Part One. Principles for All Legal Writing
+(3) that was intended to induce reliance by the plaintiff
+(4) which was in fact relied upon by the plaintiff
+(5) to the plaintiff’s detriment.
+●
+
+Where there are already allegations of defects in design, manufacturing, and warnings, a claim that the manufacturer should have recalled its 1999 products is redundant, prejudicial, and directed to the wrong institutional forum.
+
+●
+
+Under Georgia law, the elements necessary for the application of equitable estoppel
+are (1) a false representation or concealment of facts, (2) it must be within the
+knowledge of the party making the one or concealing the other, (3) the person affected thereby must be ignorant of the truth, (4) the person seeking to influence
+the conduct of the other must act intentionally for that purpose, and (5) persons
+complaining must have been induced to act by reason of such conduct of the other.
+
+§ 10. Avoid multiple negatives.
+When you can recast a negative statement as a positive one without changing the meaning, do it. You’ll save readers from needless mental exertion.
+A single negative often isn’t very taxing:
+No more than one officer may be in the polling place at a given time.
+
+Still, the positive form is more concise and direct—and equally emphatic:
+Only one officer may be in the polling place at a given time.
+
+But when a sentence has more than one needless negative, the meaning
+can get muddled:
+A member who has no fewer than 25 years of credited service but has not
+yet attained the age of 60 years and is not eligible for retirement may not
+voluntarily retire early without first filing a written application with the
+board.
+
+Change no fewer than to at least; has not yet attained to is under; and
+may not . . . without to a different construction entirely, using must. Then
+make a few other edits, and the sentence becomes much more cogent:
+Even if you’re a member who is not otherwise eligible for retirement, you
+may voluntarily retire if you are under the age of 60 and have at least 25
+years of credited service. To do this, you must file a written application with
+the board.
+
+These techniques won’t always work, of course. If you’re stating a prohibition, you’ll need to use a negative (“Don’t leave the footpath”). One
+airline avoids this type of directness in a lavatory sign: “Please discard
+anything other than tissue in the trash dispenser.” What this really means
+is, “Please don’t discard anything except tissue in the toilet.” You wonder
+how many people bother to puzzle out the roundabout message of the
+
+§ 11. End sentences emphatically
+
+original—which seems prompted by a desire to avoid using the word toilet. Still, avoiding the negative in that instance is awkward at best.
+Although it’s not an absolute, accentuate the positive when you can.
+
+Exercises
+Basic
+Recast the following sentences in a more positive, straightforward way:
+●
+
+Notice will not be effective unless it is delivered in person or by certified mail,
+return receipt requested.
+
+●
+
+In the absence of any proof to the contrary, the court should presume that the administrator’s functions have not ceased.
+
+●
+
+No termination will be approved unless the administrator reviews the application
+and finds that it is not lacking any requisite materials.
+
+Intermediate
+Recast the following sentences in positive form:
+●
+
+There is no issue of material fact that Renfro cannot establish that Aniseed, Inc.
+owed her a duty to prevent the injury she claims to have suffered.
+
+●
+
+Bendola cannot be permitted to stand on nothing more than unsubstantiated and
+self-laudatory statements as a basis for denying summary judgment.
+
+●
+
+No reason for refusing confirmation of the master’s report not covered by the exceptions in the rule is disclosed by the record or urged by the defendants.
+
+●
+
+A plan shall not be treated as not satisfying the requirements of this section solely
+because the spouse of the participant is not entitled to receive a survivor annuity
+(whether or not an election has been made), unless both the participant and the
+spouse have been married throughout the one-year period ending on the date of the
+participant’s death.
+
+Advanced
+Find a sentence in published writing that is burdened with at least two
+negatives that you can easily—and with no change in meaning—recast in
+the positive. If you’re a member of a writing group or class, provide each
+colleague with a copy of the original (with a citation) and your revised
+version.
+
+§ 11. End sentences emphatically.
+Amateurs often write sentences that, at the very end, fizzle. But professional writers know that a sentence’s final word, whatever it may be,
+should have a special kick. So if you want to avoid sounding like a bureaucratic bore, perk up your endings. Consider:
+Melinda Jackson died three weeks later in Columbus, Ohio.
+Melinda Jackson died in Columbus, Ohio, three weeks later.
+● Three weeks later, while visiting Columbus, Melinda Jackson died.
+●
+●
+
+The first emphasizes the place of death—probably a poor strategy. The
+second emphasizes the time of death—again, probably poor. The third
+
+31
+
+32
+
+Part One. Principles for All Legal Writing
+
+emphasizes the death itself. That’s almost certainly what the writer intended.
+With virtually any sentence, you have a choice about what you want to
+stress. Make it a conscious choice.
+Again and again, you’ll find that the most emphatic position in a sentence isn’t the beginning, but the end. Just as it’s unwise to end a sentence
+with a date (unless the date is all-important), it’s usually unwise to end
+one with a rule number or a citation:
+Fenster International Racecourse, Inc. respectfully asks this Court to enter
+a summary judgment and, further, to find that there is no just reason to
+delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304A.
+
+A little reordering can make a big difference:
+Fenster International Racecourse, Inc. respectfully asks this Court to enter
+a summary judgment and to find that, under Illinois Supreme Court Rule
+304A, there is no just reason to delay enforcement or appeal.
+
+When you make this type of adjustment in sentence after sentence, you
+brighten the style.
+
+Exercises
+Basic
+Rewrite the following passages to make the sentence endings more emphatic:
+●
+
+This Court dismissed the whistleblower claims against the Governor on August 27
+in response to the Governor’s Plea to the Jurisdiction.
+
+●
+
+The right to stop the work is the single most important factor in determining
+whether a party is in charge of the work within the meaning of the Act.
+
+●
+
+The Commission is not in a position to provide additional affidavits and other evidence to support its contention that Bulworth and Islington are an integrated enterprise at this time.
+
+●
+
+The court may authorize a preappearance interview between the interpreter and the
+party or witness if it finds good cause.
+
+●
+
+Silver Sidings contends that it had no control over the hazardous substance released
+to create the emergency, and that the Department of Natural Resources therefore
+has no jurisdiction over Silver Sidings under the Spill Bill (see § 260.510, RSMo
+1994). In fact, Silver Sidings owned the property where the release occurred, owned
+the underground storage tanks from which the hazardous substance was released,
+permitted the hazardous substances to be stored in its tanks on its property, and had
+every right as a landowner to control how its land and tanks were used—all relevant
+factors under the Spill Bill. Thus, Silver Sidings is “a person having control over
+a hazardous substance involved in a hazardous-substance emergency” within the
+meaning of the Spill Bill.
+
+Intermediate
+Find a journalist’s article in which the last word in the article is especially
+arresting. Be prepared to explain why.
+
+§ 11. End sentences emphatically
+
+or
+In published legal writing, find a paragraph in which the sentence endings
+are unemphatic. Rewrite the paragraph to spruce it up.
+Advanced
+In the literature on effective writing, find support for the idea that sentences
+should end emphatically. If you belong to a writing group or class, prepare
+a page with at least three quotations to this effect. Provide full citations to
+your sources.
+
+33
+
+3
+Choosing Your Words
+
+§ 12. Learn to detest simplifiable jargon.
+In addition to mastering grammatical consistency and simplicity, develop
+an intolerance for unnecessary jargon. Every profession has its own jargon.
+In a medical record, you shouldn’t be surprised to read that the doctor
+“observed a fungal infection of unknown etiology on the upper lower left
+extremity.” For some doctors, the word etiology (meaning “cause”)—as
+well as dozens of other phrases such as the patient is being given positivepressure ventilatory support (meaning “the patient is on a ventilator”)—
+reinforces one’s identity as a doctor.
+Similarly, in police reports you’ll frequently encounter passages like
+this one:
+When Officer Galvin entered the lot, he observed the two males exiting the
+lot. He then initiated a verbal exchange with a female white subject, who
+stated that she had observed two male whites looking into vehicles. When
+she pointed out the subjects as the two male whites who had exited the lot
+previously, Officer Galvin promptly engaged in foot pursuit of them.
+
+All this gets recorded with a straight face. For the police officer, linguistic
+oddities such as engaging in foot pursuit of (meaning “running after”)—
+as well as absurdly formal word choices like observed (“saw”), exiting
+(“leaving”), initiated a verbal exchange (“started talking”), stated
+(“said”), male whites (“white men”)—are part of what makes one feel like
+a genuine police officer.
+Essentially the same thing holds true for lawyers.
+Yet to the educated person who isn’t a doctor, a police officer, or a
+lawyer, those who use jargon sound more than a little silly.
+You’ll labor to acquire legalese (it’s something you must understand),
+and then you’ll labor to give it up in your own speech and writing—that
+is, if you want to speak and write effectively. Legalisms should become
+part of your reading vocabulary, not part of your writing vocabulary.
+But what, exactly, is a legalism? The term refers not to unsimplifiable
+terms of art (like habeas corpus) but to legal jargon that has an everyday
+English equivalent. Among the extreme examples are these:
+
+34
+
+Legalism
+anent
+dehors the record
+inter sese
+
+Plain English
+about
+outside the record
+among themselves
+
+§ 12. Learn to detest simplifiable jargon
+
+motion for vacatur
+sub suo periculo
+
+motion to vacate
+at one’s own peril
+
+These examples are extreme because few people use them today. They
+don’t present much of a threat to your writing style because you’ll be
+sensible enough to avoid them.
+The real danger comes with commonplace legalisms that skulk in every
+paragraph of listless legal writing:
+Legalism
+as to
+bring an action against
+herein
+inasmuch as
+instant case
+in the event that
+not less than
+prior to
+pursuant to
+said (adj.)
+same (pron.)
+subsequent to
+such
+thereafter
+therein
+
+Plain English
+about, of, by, for, in
+sue
+in this [agreement, etc.]
+since, because
+here, this case
+if
+at least
+before
+under, by, in accordance with
+the, this, that
+it, them
+after
+that, this, those, the
+later
+in it, in them, inside
+
+While these and other legalisms might seem precise, they don’t really
+lend precision to any legal discussion. They’re no more precise than the
+ordinary words.
+In the following example, the drafter’s fondness for said, same, and such
+has produced an unnecessarily opaque tongue-twister:
+The Undersigned hereby extends said lien on said property until said indebtedness and Loan Agreement/Note as so modified and extended has been
+fully paid, and agrees that such modification shall in no manner affect or
+impair said Loan Agreement/Note or the lien securing same and that said
+lien shall not in any manner be waived, the purpose of this instrument being
+simply to extend or modify the time or manner of payment of said Loan
+Agreement Note and indebtedness and to carry forward the lien securing
+same, which is hereby acknowledged by the Undersigned to be valid and
+subsisting.
+
+With a little effort—and by giving “the Undersigned” a name—it’s possible to boil that legal gibberish down to this:
+Williams extends the lien until the Note, as modified, has been fully paid.
+The modification does not affect any other terms of the Note or the lien,
+both of which otherwise remain in force.
+
+Lawyers recoil from this type of edit until they’ve gotten some experience.
+But with experience comes the knowledge of how unnecessary much legal
+claptrap is.
+
+35
+
+36
+
+Part One. Principles for All Legal Writing
+
+Acquire that knowledge ravenously, and you might be able to shortcircuit years of befuddlement.
+
+Exercises
+Basic
+Translate the following passages into plain English:
+●
+
+A prehearing conference was held on July 15, 2000, and the result of said conference
+was that Rawson was given an extension of time until August 6 to respond to Vicker’s motion. Rawson subsequently failed to file any response thereto.
+
+●
+
+In the event that any employee is requested to testify in any judicial or administrative proceeding, said party will give the company prompt notice of such request in
+order that the company may seek an appropriate protective order.
+
+●
+
+The court asks whether the plaintiff is guilty of unreasonable delay in asserting its
+rights. Such determination is committed to the trial court’s sound discretion. The
+emphasis is on the reasonableness of the delay, not the length of such delay.
+
+●
+
+Subsequent to the Bank’s dishonor and return of the forged check, the U.S. Attorney
+served the aforementioned subpoena upon the Bank and directed the Bank to deliver
+to his office forthwith, upon receipt, at any time and from time to time, any and all
+bank checks, cashier’s checks, and similar items stolen in the robbery that transpired on July 2, 2000.
+
+Intermediate
+Translate the following passages into plain English:
+●
+
+All modifications, interlineations, additions, supplements, and/or changes to this
+Contractual Amendment are subject to and conditioned upon a fully executed,
+signed, and dated acceptance, approval, and confirmation at Pantheon’s corporate
+headquarters.
+
+●
+
+An interpreter is needed if, after examining a witness, the court arrives at the conclusion that the witness is without the ability to understand and speak English at
+a sufficient level of proficiency to comprehend the proceedings in such a way as to
+assist counsel in the conduct of the case.
+
+●
+
+This letter shall confirm our understanding and agreement that if your loan application on the above-described property is approved, you shall occupy the same as your
+primary residence within thirty (30) days of the closing date. You are aware that if
+you shall fail to do so, such failure shall constitute a default under the Note and
+Security Instrument executed in connection with your loan, and upon occurrence
+of such default the full and entire amount of the principal and interest payable pursuant to said Note shall become immediately due and payable at the option of the
+holder thereof.
+
+●
+
+Pursuant to the provisions of §§ 3670, 3671, and 3672 of the Internal Revenue Code
+of the United States, notice is hereby given that there have been assessed under the
+Internal Revenue Code of the United States, against the following-named taxpayer,
+taxes (including interest and penalties) which after demand for payment thereof
+remain unpaid, and that by virtue of the above-mentioned statutes the amount (or
+amounts) of said taxes, together with penalties, interest, and costs that may accrue
+in addition thereto, is (or are) a lien (or liens) in favor of the United States upon all
+property and rights to property belonging to said taxpayer.
+
+Advanced
+Find a published piece of legal writing that is thick with legalese. Prepare a
+short memo—no more than three pages—in which you (1) show at least
+
+§ 13. Use strong, precise verbs
+
+two paragraphs from the original, (2) show how you would edit the passage,
+and (3) explain briefly why you made your edits. If possible, cite authority
+(such as a usage guide—see § 48) in support of your edits.
+or
+In the literature on legal language and legal writing, find three quotable
+paragraphs (each from a different writer) discussing legalese. Assemble the
+quotations and citations. If you belong to a writing group or class, bring a
+copy of your quotations for each colleague.
+
+§ 13. Use strong, precise verbs. Minimize is, are, was, and were.
+Despite a few notable exceptions—as in “I think, therefore I am” or “It
+depends on what the meaning of is is”—be-verbs lack force. If they appear
+frequently, the writing becomes inert. Yet legal writers often overindulge,
+as in these passages:
+If there is information to which the company has reasonable access,
+the designated witness is required to review it so that the witness is
+prepared on all matters of question.
+● Affecting vitally the problem of the burden of proof is the doctrine of
+presumptions. A presumption occurs in legal terminology when the
+fact-trier, whether a court or a jury, is required from the proof of one
+fact to assume some other fact not directly testified to. A well-known
+example is the presumption that a person is dead after seven years if
+he or she has been shown to have been absent for seven years without
+being heard from.
+●
+
+As you might gather, relying on is and its siblings can easily turn into a
+habit. And wherever you find the various forms of the verb to be congregating, you’re likely to find wordy, sluggish writing. We can recast each of
+those passages with better, more picturesque verbs:
+If the company has reasonable access to information, the designated
+witness must review it to prepare for all matters of questioning.
+● The doctrine of presumptions vitally affects the burden-of-proof issue.
+A presumption occurs in legal terminology when the fact-trier,
+whether a court or a jury, must deduce from one fact yet another that
+no one has testified about directly. For example, the law presumes that
+a person has died if that person has been absent for seven years without being heard from.
+●
+
+Although the English language actually has eight be-verbs—not only
+is, are, was, and were, but also been, being, be, and am—this section
+targets the big four. They’re the ones that you’ll need to focus on the most.
+So mentally—or even physically—highlight every is, are, was, and were,
+and see whether you can improve the sentence by removing it.
+Many writers, by the way, erroneously believe that a be-verb always
+signals passive voice. In fact, it’s only half of the passive-voice construction (see § 8). But even if be-verbs don’t always make sentences passive,
+
+37
+
+38
+
+Part One. Principles for All Legal Writing
+
+they can certainly weaken your prose. So they merit your critical attention.
+
+Exercises
+Basic
+Rewrite the following sentences to eliminate the be-verbs:
+●
+
+Jones is in agreement with Smith.
+
+●
+
+The professional fees in this project are entirely dependent upon the planning techniques that the client is in favor of implementing.
+
+●
+
+The judge is of the opinion that it is within sound judicial discretion to determine
+whether, once the claim is asserted, the crime-fraud exception is applicable.
+
+●
+
+Where there is no express agreement, it is ordinarily taken that the authority was
+to last for what was a reasonable time in light of all the circumstances.
+
+Intermediate
+Rewrite the following passages to eliminate the be-verbs:
+●
+
+There was no light-duty work that was available at the company. The company’s
+actions were hardly discriminatory when there was no showing that the company
+was practicing any type of discriminatory preference.
+
+●
+
+Several members were in attendance, and those present were in agreement that the
+board’s action was violative of the bylaws.
+
+●
+
+This evidence is indicative that the company was desirous of creating a monopoly
+with the operating system.
+
+●
+
+Since there is a limited number of persons with the requisite skills, it is increasingly
+difficult for the company to hire personnel who are qualified.
+
+Advanced
+In a piece of published legal writing, find two meaty paragraphs—consecutive ones—in which be-verbs predominate. Type the paragraphs, preserve
+an unedited version, and then revise them to reduce the number of be-verbs
+by at least 75%. If you’re part of a writing group or class, bring a copy of the
+before-and-after versions for each colleague.
+
+§ 14. Turn -ion words into verbs when you can.
+It’s not just passive voice (§ 8) and be-verbs (§ 13) that can sap the strength
+of your sentences. So can abstract nouns. Avoid using words ending in
+-ion to describe what people do. Write that someone has violated the law,
+not that someone was in violation of the law; that something illustrates
+something else, not that it provides an illustration of it; that a lawyer has
+decided to represent the defendant, not that the lawyer has made the
+decision to undertake the representation of the defendant; that one party
+will indemnify the other, not that the party will furnish an indemnification to the other.
+In each of those alternatives, there’s the long way of saying it and there’s
+the short way. The long way uses weak verbs and abstract nouns ending
+in -ion. The short way uses a single forthright verb. Legal writing is full of
+flabby wordings stemming from -ion words:
+
+§ 14. Turn -ion words into verbs when you can
+
+Wordy
+are in mitigation of
+conduct an examination of
+make accommodation for
+make provision for
+provide a description of
+submit an application
+take into consideration
+
+Better Wording
+mitigate
+examine
+accommodate
+provide for
+describe
+apply
+consider
+
+Of course, when you need to refer to mediation or negotiation as a
+procedure, then you must say mediation or negotiation. But if a first draft
+refers to the mediation of the claims by the parties, you might well consider having the second draft refer to the parties’ mediating the claims.
+Why concentrate on editing -ion words? Three reasons:
+You’ll generally eliminate prepositions in the process, especially of
+(see § 15).
+● You’ll often avoid inert be-verbs by replacing them with action verbs
+(see § 13).
+● You’ll humanize the text by saying who does what.
+●
+
+The underlying rationale in all this is concreteness. By uncovering buried
+verbs, you make your writing much less abstract—it becomes much easier
+for readers to visualize what you’re talking about.
+If you still have doubts, compare that last sentence with this one: “After
+the transformation of nominalizations, the text will have fewer abstractions; readers’ capability for visualization of the discussion is enhanced.”
+Be alert to words ending in -ion. When you can, edit them out.
+
+Exercises
+Basic
+Improve the following passages by changing all but one or two of the -ion
+words. Do any -ion words need to stay?
+●
+
+An interested party may make an application for a modification or revocation of an
+antidumping order (or termination of a suspension agreement) in conjunction with
+an annual administrative review. A revocation application will normally receive no
+consideration by the board unless there have been no sales at less than fair value for
+a period of at least three consecutive years.
+
+●
+
+In analyzing the ADA claim, the court noted that the decedent’s termination and
+the reduction in AIDS benefits by the company occurred before the ADA became
+effective. Plaintiff nonetheless made the allegation that maintaining the limitation
+on AIDS benefits beyond the effective date of the ADA—in effect discrimination
+between plan members with AIDS and members without AIDS—constituted a violation of the general rule of Title I.
+
+●
+
+The determination that reasonable grounds exist for the revocation of parole should
+first be made by someone directly involved in the case. Yet we need make no assumptions in arriving at the conclusion that this preliminary evaluation, and any
+recommendations resulting therefrom, should be in the hands of someone not directly involved.
+
+39
+
+40
+
+Part One. Principles for All Legal Writing
+
+Intermediate
+Edit the following sentences to reduce the number of words ending in -ion:
+●
+
+In the event of termination of this Agreement by Sponsor before expiration of the
+project period, Sponsor must pay all costs that the University has accrued as of the
+date of termination.
+
+●
+
+The federal district courts have discretion over supervision of the discovery process,
+the imposition of sanctions for discovery violations, and evidentiary rulings.
+
+●
+
+Although compliance with the terms of the Act should provide Hince some protection from state or local actions, the actual degree of protection remains uncertain
+because of the absence of any prior judicial interpretation of the Act.
+
+●
+
+Any violation of the terms of probation established by the Board will result in revocation of VanTech’s authority to conduct itself as a public-utility operation.
+
+●
+
+In addition, the imposition of punitive damages here would be a violation of the
+constitutional provision containing the prohibition of ex post facto laws.
+
+Advanced
+Find a paragraph in published legal writing with at least three -ion words
+that need editing. Retype the paragraph, with its citation, and then type
+your own revised passage below it. If you’re a member of a writing group or
+class, bring a copy of your page for each colleague, and be prepared to discuss
+your work.
+or
+Research the literature on effective writing for additional support for eliminating -ion words. What are the various terms that writing authorities use
+for these words?
+
+§ 15. Simplify wordy phrases. Watch out for of.
+In working to shorten sentences, phrase by phrase, you’ll need to become
+a stickler for editing out the usual suspects—the recurrent phrases that
+bloat legal writing. Each one typically displaces a single everyday word:
+Bloated Phrase
+an adequate number of
+a number of
+a sufficient number of
+at the present time
+at the time when
+at this point in time
+during such time as
+during the course of
+for the reason that
+in the event that
+in the near future
+is able to
+notwithstanding the fact that
+on a daily basis
+on the ground that
+prior to
+subsequent to
+the majority of
+until such time as
+
+Normal Expression
+enough
+many, several
+enough
+now
+when
+now
+while
+during
+because
+if
+soon
+can
+although
+daily
+because
+before
+after
+most
+until
+
+§ 15. Simplify wordy phrases
+
+You’ll need to remember this list—and the reliable one-word translations.
+More than that, though, you can strengthen your writing by cultivating
+a skepticism for the one word in the English language that most commonly signals verbosity: of. Although this may sound simplistic, it actually works: focus on each of to see whether it’s propping up a wordy
+construction. You might be surprised at how often it does that. When editing on a computer, try searching for “[space]of[space]” to see how many
+ofs you can safely eliminate. Reducing the ofs by 50% or so can greatly
+improve briskness and readability. With a little experience, you’ll find that
+you carry out three or four predictable edits.
+First, you’ll sometimes delete a prepositional phrase as verbiage:
+Under New York corporate law, an action may be brought against one or
+more officers or directors of a corporation to compel them to account for
+their official actions if those actions resulted in the corporation’s losing
+assets.
+
+Although the edit may seem minor, deleting of a corporation helps
+streamline the sentence. This edit—by which you brand the of-phrase
+needless—is especially common in phrases such as the provisions of and
+the terms and conditions of. Instead of writing that an agency’s actions
+are “subject to the provisions of the 2000 legislation,” simply write that
+they are “subject to the 2000 legislation.” Phrases like the provisions of
+typically add nothing.
+Second, you’ll sometimes change an of-phrase to a possessive form.
+For example:
+Profit-sharing was a means by which the employees were given a
+lump-sum reward for the success of the company.
+
+.
+
+company
+
+’s
+
+That’s an easy edit. It also puts a punch word at the end of the sentence
+(see § 11).
+Third, you’ll sometimes replace a prepositional phrase with an adjective or adverb. For example:
+The sale proceeds came predominantly from the Historical Society’s
+collection of European paintings and decorative arts, the maintenance of
+
+California
+
+which contributed little to the study of the history. of California.
+
+Although we might want to keep one of in the final phrase, we’ll need
+to delete the other and use California as an adjective.
+Finally, you’ll often just find a better wording. For example:
+that he had no
+
+The company advised Coleman of the lack of a factual or legal basis
+for the lawsuit.
+
+41
+
+42
+
+Part One. Principles for All Legal Writing
+
+This edit is especially common with -ion words, as here:
+Under New York law, any corporate act that is merely convenient for
+
+to effectuate
+
+the effectuation of the corporation’s purpose is now viewed as a power
+that is subject to § 202.
+
+Changing effectuation to effectuate immediately eliminates a preposition—and upgrades the style.
+Selectively deleting ofs is surprisingly effective: even the most accomplished writer can benefit from it.
+
+Exercises
+Basic
+Revise these sentences to minimize prepositions:
+●
+
+Jenkins knew of the existence of the access port of the computer.
+
+●
+
+This Court did not err in issuing its order of dismissal of the claims of Plaintiff.
+
+●
+
+Courts have identified a number of factors as relevant to a determination of whether
+the defendant’s use of another’s registered trademark is likely to cause a state of
+confusion, mistake, or deception.
+
+●
+
+One way in which a private party can act preemptively to protect the enforceability
+of the rest of the provisions of a contract, in the face of one void provision, is to
+insert a severability clause.
+
+●
+
+Any waiver of any of the provisions of this Agreement by any party shall be binding
+only if set forth in an instrument signed on behalf of that party.
+
+Intermediate
+Revise the following passages to minimize prepositions:
+●
+
+Henry II had genius of a high order, which never manifested itself more clearly than
+in his appreciation of the inevitability of the divergence of the paths of crime and
+of tort, and in his conception of crimes as offenses against the whole community.
+
+●
+
+The recognition of the propriety of a court’s overruling its own decisions places
+those decisions on the plane of merely persuasive authority and causes our theory
+of judicial precedent to be substantially like the theory held on the continent of
+Europe.
+
+●
+
+Penfold had no knowledge of the amount of money paid—and could not have had
+knowledge of this—in advance of Penfold’s review of its financial position in 2000.
+Thus, Penfold’s profit-sharing is neither deserving of nor subject to the protections
+of Title III.
+
+●
+
+In the case of R.E. Spriggs Co. v. Adolph Coors Co., 94 Cal. App. 3d 419 (Cal. Ct.
+App. 1979), the Court of Appeal of California addressed the estoppel effect of a
+cease-and-desist order. The court was of the view that the trial court erred in failing
+to apply the doctrine of collateral estoppel, since the factual issue in dispute had
+been litigated and decided in an earlier case involving the enforcement of an FTC
+cease-and-desist order.
+
+●
+
+One or both of the aspects of the function of the court must suffer. Either consideration of the merits of the actual controversy must yield to the need of detailed
+formulation of a precedent that will not embarrass future decision, or careful formulation must give way to the demand for study of the merits of the case at hand.
+
+§ 16. Avoid doublets and triplets
+
+Advanced
+Find a published passage in which you can improve the style by cutting the
+ofs by at least half. Type the original, and then handwrite your edits so that
+they’re easy to follow. If you’re part of a writing group or class, bring a copy
+for each of your colleagues.
+
+§ 16. Avoid doublets and triplets.
+Legal writing is legendarily redundant, with time-honored phrases such
+as these:
+alienate, transfer, and convey (transfer suffices)
+due and payable (due suffices)
+give, devise, and bequeath (give suffices)
+indemnify and hold harmless (indemnify suffices)
+last will and testament (will suffices)
+
+The list could easily be lengthened. Perhaps you’ve heard that these once
+served a useful purpose in providing Latin and French and Anglo-Saxon
+translations when legal language was not fully settled. This is largely an
+inaccurate historical explanation.1 But even if it were accurate, it would
+have little relevance to the modern lawyer.
+The problem isn’t just that doublets and triplets, old though they may
+be, aren’t legally required. They can actually lead to sloppy thinking. Because courts must give meaning to every word—reading nothing as mere
+surplusage2 —lawyers shouldn’t lard their drafts with unnecessary words.
+The idea isn’t to say something in as many ways as you can, but to say it
+as well as you can.
+To avoid needless repetition, apply this rule: if one word swallows the
+meaning of other words, use that word alone. To put it scientifically, if one
+term names a genus of which the other terms are merely species—and if
+the genus word supplies the appropriate level of generality—then use the
+genus word only. And if the two words are simply synonyms (convey and
+transport), simply choose the one that fits best in your context.
+
+Exercises
+Basic
+Edit the following sentences to eliminate the redundancies without changing the meaning:
+
+§ 16 1. See Garner, A Dictionary of Modern Legal Usage 292–95 (2d ed. 1995).
+2. See, e.g., Lowe v. SEC, 472 U.S. 181, 208 (1985) (“[W]e must give effect to every word that Congress
+used in the statute.”); Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“[I]n construing a statute we
+are obliged to give effect, if possible, to every word.”); Burdon Cent. Sugar-Ref. Co. v. Payne, 167 U.S.
+127, 142 (1897) (“[T]he contract must be so construed as to give meaning to all its provisions, and . . .
+that interpretation would be incorrect which would obliterate one portion of the contract in order to
+enforce another part.”); FDIC v. Singh, 977 F.2d 18, 22 (1st Cir. 1992) (“[E]very word and phrase of an
+instrument is if possible to be given meaning, and none is to be rejected as surplusage.”); Moncrief v.
+Harvey, 816 P.2d 97, 114 (Wyo. 1991) (“All the parts of and every word in the contract should, if possible,
+be given effect, avoiding a construction which renders a provision meaningless because the presumption
+is that a particular provision is placed there for a purpose.”).
+
+43
+
+44
+
+Part One. Principles for All Legal Writing
+●
+
+Licensee will perform the work in compliance with all applicable laws, rules, statutes, ordinances, and codes.
+
+●
+
+While the witness’s truthfulness and veracity may be inquired into on crossexamination, it cannot be further challenged by the introduction of extrinsic evidence relating to matters not already in the record.
+
+●
+
+If the bailee fails, refrains, or refuses to perform any obligation under this
+agreement, the bailor may, at its option, perform the obligation of the bailee and
+charge to, bill, or otherwise recover from the bailee the cost of this performance.
+
+●
+
+Seller must cooperate with and assist Buyer in this process, without bearing the
+costs or expenses associated therewith.
+
+Intermediate
+Find two examples of doublets or triplets in your apartment lease, mortgage,
+car-loan agreement, or other personal contract. Suggest a revision that eliminates the redundancy without (in your opinion) changing the meaning. If
+you’re part of a writing group or class, bring a copy of the before-and-after
+versions for each colleague.
+Advanced
+In the literature on legal language, find at least three discussions of the
+origin and modern use of doublets and triplets. Write a short essay (1,000
+to 1,500 words) reporting your findings.
+
+§ 17. Refer to people and companies by name.
+Imagine a world in which all novelists used the terms “Protagonist” and
+“Antagonist” as the names of their principal characters. Assume that playwrights and screenwriters did the same. The stories would grow tedious,
+wouldn’t they?
+Legal writers have traditionally spoiled their stories by calling people
+“Plaintiff” and “Defendant,” “Appellant” and “Appellee,” or “Lessor” and
+“Lessee.” It’s a noxious habit that violates the principles of good writing.
+You can do better: call people McInerny or Walker or Zook. Or refer to
+the bank or the company or the university. (If you want to—if you’re feeling particularly nervous—you can capitalize them: the Bank, the Company, or the University. But see § 18.) Then make sure your story line
+works. Do what you can, however, to avoid legal labels as party names.
+Most people, you see, don’t think of themselves as intervenors, mortgagors, obligors, prosecutrixes, and the like. Even lawyers end up having
+to backtrack and continually translate. You’re better off supplying the
+translations in advance.
+By the way, you’ll sometimes hear litigators say that it’s a good idea
+to humanize your client (Johnson) while dehumanizing your adversary
+(Defendant). This advice is almost always unsound: it simply makes your
+writing halfway dull. And besides, if your adversary has done bad things,
+the reader will readily associate those bad acts with a name (Pfeiffer) but
+won’t with a legalistic label (Defendant).
+Yet the preference for real names does have three limited exceptions:
+(1) when you’re discussing a case other than the one you’re currently involved in; (2) when the adversary is extremely sympathetic in comparison
+with your client; and (3) when multiple parties are aligned in such a way
+
+§ 18. Don’t habitually use parenthetical shorthand names
+
+that a single name is inaccurate. Otherwise, though, use real names for
+parties—even your opponents.
+
+Exercises
+Basic
+Rewrite the following paragraph from a summary-judgment brief. Substitute names for procedural labels. Assume that the movant (your client) is
+Pine National and that the plaintiff is Peter Foster. You’ll undoubtedly see
+the need for other edits, so improve the style as best you can.
+Movant has conclusively established that Plaintiff did not initiate this lawsuit
+against Movant until after the expiration of the applicable limitations period.
+Plaintiff does not dispute this. Instead, Plaintiff seeks to avoid application of the
+limitations bar by (1) asserting that this is a case of misnomer, in which case
+limitations would be tolled, and (2) asserting that, under Enserch Corp. v. Parker,
+794 S.W.2d 2, 4–5 (Tex. 1990), factual issues exist as to whether Movant was prejudiced by the late filing. Yet the evidence before the Court establishes as a matter
+of law that this is a case of misidentification (which does not toll limitations), not
+one of misnomer. Further, Plaintiff has not responded with any proof of a basis
+for tolling limitations under the equitable exception to the statute of limitations
+described in Enserch. The exception is inapplicable under the facts before this
+Court, and, therefore, prejudice or the lack thereof to Movant is not a relevant
+inquiry. Plaintiff’s claims against Movant are barred by limitations as a matter
+of law.
+
+Intermediate
+Find a legal document in which defined legal labels, such as mortgagor and
+mortgagee, have caused the drafter to avoid pronouns, as a result of which
+the style becomes embarrassingly repetitious. Rewrite a paragraph or two
+of the example. If you’re part of a writing group or class, provide each colleague with a copy of the example and the revision.
+Advanced
+Find some authority that supports (or contradicts) the idea that you should
+refer to parties by name. Look at the literature on brief-writing and contract
+drafting. If you’re part of a writing group or class, be prepared to discuss the
+authority you’ve found.
+
+§ 18. Don’t habitually use parenthetical shorthand names.
+Use them only when you really need them.
+Ever read a newspaper article that begins this way?
+A powerful Russian industrialist named Mikhail Khodorkovsky (hereinafter
+“the Industrialist” or “Khodorkovsky”), whose empire (hereinafter “the
+Khodorkovsky Empire”) is under investigation in the money-laundering inquiry (hereinafter “the Inquiry”) at the Bank of New York (hereinafter “the
+Bank”), said yesterday that a large part of the billions of dollars moved
+through the Bank was controlled by Russian officials (hereinafter “the Officials”) who used the Khodorkovsky Empire to protect their fortunes by shipping their money (hereinafter “Russian Capital”) abroad before Russian
+markets collapsed last year (hereinafter “the Russian Collapse”).
+
+Although that’s absurd—and no professional journalist would ever do it—
+lawyers seem taken with the idea:
+
+45
+
+46
+
+Part One. Principles for All Legal Writing
+
+Gobel Mattingly (“Mattingly”), shareholder on behalf of Allied Ready Mix
+Company, Incorporated (“Allied”) and Jefferson Equipment Company, Incorporated (“Jefferson”), has appealed from a nunc pro tunc order (the “Nunc
+Pro Tunc Order”) of the Jefferson Circuit Court (the “Court Below”) in this
+stockholder derivative action (“the Action”).
+
+Even without hereinafters, that’s nonsense. There’s only one Mattingly,
+one Allied, and one Jefferson involved. And if you tell the story competently, any reader will know what order and what action and what trial
+court you’re talking about. As it is, the parentheticals impede comprehension.
+So if you avoid the rote, mechanical use of parenthetical shorthand
+names, when might you actually need them? Only when there’s a genuine
+possibility of confusion, which typically arises in just two instances. First,
+if you’re going to refer to the General Agreement on Tariffs and Trade as
+GATT—something you may well do because the acronym is well established (see § 19)—then you might want to do this:
+Signed originally in 1948, the General Agreement on Tariffs and Trade
+(“GATT”) promotes international trade by lowering import duties.
+
+That way, the reader who encounters GATT won’t be momentarily confused. Second, if you’re writing about a case with two or more entities
+having confusingly similar names, a shorthand reference will dispel the
+confusion:
+Portland Credit Corporation (“Portland Credit”) has sued Portland Credit
+Engineering Corporation (“PC Engineering”) for trademark infringement.
+
+These situations do sometimes occur. But they aren’t the norm.
+
+Exercises
+Basic
+Rewrite the following paragraph to eliminate the shorthand names:
+The statement of the procedural history of this matter, as stated in the Appellant’s
+brief, is essentially correct. The claimant, Keith W. Hillman (hereinafter “Hillman”), filed his claim for benefits from the Criminal Injuries Compensation Fund,
+Va. Code §§ 19.2–368.1 et seq., on July 27, 2000. His claim was denied by the
+Director of the Division of Crime Victims’ Compensation (hereinafter “the Director”) on August 27, 2000 because his conduct contributed to the infliction of his
+injury and because he had failed to cooperate with law enforcement. On December 20, 2000, Hillman requested a review of the denial of benefits. On April 8,
+2001, Hillman was given an opportunity for an evidentiary hearing before a deputy
+commissioner pursuant to Administrative Bulletin No. 25, attached hereto as Addendum A (hereinafter “Add. A”).
+
+Intermediate
+Find a judicial opinion in which the parties are methodically defined at the
+outset. If you’re part of a writing group or class, bring a copy of the first two
+pages. Be prepared to discuss whether you think the definitions serve any
+real purpose.
+
+§ 19. Shun newfangled acronyms
+
+Advanced
+Find a legal document in which the introduction of shorthand names seems
+pedantic—or, worse still, absurd. Decide how you would deal with the issue
+if you were the writer. If you belong to a writing group or class, be prepared
+to discuss your findings and your proposed solutions.
+
+§ 19. Shun newfangled acronyms.
+Some acronyms are fine. Most people don’t hesitate over ATM cards, FAA
+regulations, GM cars, IBM computers, or USDA-inspected beef. And virtually all lawyers are familiar with acronyms such as ADA, DOJ, UCC,
+and USC.
+But specialists often glory in concocting an alphabet soup that only
+their cohorts find edible. So you’ll occasionally encounter strange new
+vocabularies from writers who haven’t learned how to write in plain English. These acronyms are shortcuts, all right—but for the writer, not the
+reader. This, for example, is a word-for-word passage (only the names have
+been changed) from a summary-judgment opposition actually filed by a
+major law firm:
+Plaintiff Valhalla Imports, Inc. (“VII”) is correct in pointing out that Maine
+Casualty Corporation (“MCC”) was represented at the voluntary settlement
+conference (“VSC”) by Matthew Tabak, a claims representative. Tabak attended the VSC as MCC’s claims representative handling Grosse’s claim
+against the Randall County Water District (“RCWD”), which was listed as
+an additional insured under MCC’s insurance policy. MCC simply was not
+involved in the worker’s compensation (“WC”) proceeding, had no responsibility for that proceeding, nor any duty in regard to the settlement of that
+proceeding, including the settlement of the serious and willful (“S&W”)
+application. Rather, MCC’s involvement in the facts giving rise to the action
+was limited to the following: MCC agreed to defend and indemnify (1) the
+RCWD under the insurance policy against Grosse’s civil claims, and (2) VII
+against RCWD’s cross-complaint. When Tabak contributed the aggregate
+limit of the MCC policy at the VSC, MCC did all it could do or was required
+to do to promote settlement.
+
+Refuse to engage in that type of self-important obscurity. If you worry
+enough about your reader’s convenience, you’ll translate ideas into ordinary words that more readers—even more legal readers—can understand.
+Instead of the example just quoted, you might write it up as a good journalist would. Give the reader credit for having read the title of the opposition
+(or any of the other court papers), which would show the full name of
+Valhalla. You might write something like this:
+Plaintiff Valhalla correctly points out that Maine Casualty was represented
+at the voluntary settlement conference by Matthew Tabak, a claims representative. Tabak attended the conference as the company’s claims representative. He was handling Grosse’s claim against the Randall County Water
+District, which was listed as an additional insured on the Maine Casualty
+policy. But the company was not involved in the worker’s-compensation pro-
+
+47
+
+48
+
+Part One. Principles for All Legal Writing
+
+ceeding, had no responsibility for that proceeding, and had no duties in any
+of the settlement discussions in that proceeding. Rather, Maine Casualty’s
+involvement was limited to the following: it agreed to defend and indemnify
+(1) the Water District under the insurance policy against Grosse’s civil
+claims, and (2) Valhalla against the Water District’s cross-complaint. When
+Tabak contributed the aggregate limit of the insurance policy at the voluntary settlement conference, Maine Casualty did all it was required to do to
+promote settlement.
+
+When it comes to overused acronyms, environmental lawyers are
+among the grossest offenders. In writings on environmental law, it’s common to see discussions in which small-quantity handlers of universal
+wastes are defined as “SQHUW” (singular in form but plural in sense!),
+large-quantity handlers are defined as “LQHUW” (again plural in sense),
+and conditionally exempt small-quantity generators are defined as
+“CESQGs” (plural in form and in sense). Then, before you know it, you’re
+reading that “the requirements for SQHUW and CESQGs are similar” and
+that “SQHUW and LQHUW are distinguished by the amount of on-site
+waste accumulated at any one time.” Then, just as you’re about to master
+these acronyms, you see references to “SQHUW handlers” and “LQHUW
+handlers.” (The phrases are, of course, redundant.) Finally, when all these
+acronyms get intermingled with references to statutes such as RCRA,
+CERCLA, and FIFRA, you really do wonder what language you’re reading.
+
+Exercises
+Basic
+In a law journal, find a passage that contains too many acronyms. Pick out
+one paragraph, type it (with citation), copy it, and then revise it to minimize
+the acronyms while you avoid repeating cumbersome phrases. If you’re part
+of a writing group or class, bring a copy of your before-and-after versions for
+each colleague.
+Intermediate
+In a book or article, find 10 to 20 acronyms. On a single page, present the
+acronyms together with their meanings. If you’re part of a writing group or
+class, bring a copy for each colleague and be prepared to discuss (1) the
+extent to which you think the acronyms save time in communication
+among specialists, (2) the extent to which you think they impede understanding for ordinary readers, and (3) the relative desirability and feasibility
+of making the field more understandable to more people.
+Advanced
+In the literature on effective writing, find two sources that discuss the use
+of acronyms. Distill their guidance and write a one-page report on your
+findings. If you’re part of a writing group or class, bring a copy for each
+colleague.
+
+§ 20. Make everything you write speakable.
+Whenever you write, whether you know it or not, you’re answering a
+question: what do you sound like? You might be stuffy (many legal writers
+
+§ 20. Make everything you write speakable
+
+are), whiny, defensive, aloof, or chummy. You probably don’t want to be
+any of those things.
+Generally, the best approach in writing is to be relaxed and natural.
+That bespeaks confidence. It shows that you’re comfortable with your
+written voice.
+It’s worth remembering, as the late Second Circuit Judge Jerome Frank
+once put it, that the primary appeal of the language is to the ear.1 Good
+writing is simply speech heightened and polished.
+To the legal reader, few things are more pleasing than the sense that a
+writer is talking directly to you—one intelligent being to another. It’s so
+unusual that it can be genuinely refreshing. Consider the following example. It’s the opener to a memorandum of law that Charles Dewey Cole
+Jr., of New York, filed in federal court:
+Defendants’ Response in Support of Denying Plaintiffs’ Late
+Designation of Expert Witnesses
+You wouldn’t know it from reading the plaintiffs’ objections, but what is
+at stake is not the plaintiffs’ inability to depose the defendants (or even the
+plaintiffs’ inability to depose them fully). What these objections are about—
+and this is all that they are about—is the plaintiffs’ unexcused failure to
+serve their expert-witness disclosure by the deadline: July 13, 1998. Because
+the plaintiffs didn’t serve a medical report by then, the defendants assumed
+that the plaintiffs were forgoing medical testimony, and they, in turn, decided against having Walim Alibrandi examined by a physician.
+The plaintiffs’ attorney must have assumed that, whatever injuries Mr.
+Alibrandi received in the collision (and they were slight indeed), the cost
+of a physical examination and of preparing a medical report simply wasn’t
+justified—an understandable decision given a comparison of that cost with
+the anticipated recovery. What the plaintiffs’ attorney did not anticipate was
+that the defendants weren’t about to settle the case, and he found himself
+in the unenviable position of having let the discovery deadline run without
+having served a medical report. And he had no excuse.
+Because the plaintiffs’ lawyer quite literally had no excuse for not serving
+any medical expert-witness disclosure, he dressed up his application before
+the magistrate judge to include all sorts of stuff about how the defendants
+had impeded discovery so that he couldn’t take a whole bunch of unnecessary depositions. The magistrate judge recognized this for what it was and
+concluded that the plaintiffs’ lawyer “had no excuse for his failure to have
+served his own medical expert disclosure.” So she refused to reopen the
+period for discovery at the October settlement conference.
+
+The relaxed tone, achieved partly through contractions, shows confidence.
+The point about contractions isn’t to use them whenever possible, but
+rather whenever natural. Like pronouns, they make a document more
+readable: “Write as You Talk is the accepted rule of writing readably—and
+in English, the most conspicuous and handiest device of doing that is to
+use contractions.”2 A 1989 study confirmed this: it found that frequent
+§ 20 1. Jerome Frank, The Speech of Judges: A Dissenting Opinion, 6 Scribes J. Legal Writing 97, 99
+(1996–1997), reprinted from 29 Va. L. Rev. 625 (1943).
+2. Rudolf Flesch, The Art of Readable Writing 82 (1949).
+
+49
+
+50
+
+Part One. Principles for All Legal Writing
+
+contractions enhance readability.3 This advice applies not just to briefs
+but also to contracts, rules, and other legal documents.
+A word of caution: you might not be allowed to use contractions much
+until you achieve a certain level of experience or seniority. This will depend on your work situation. If you’re in a junior position, be patient.
+What are the other characteristics of a natural, spoken style?
+One is the use of first-person and second-person pronouns—especially
+we and you—as opposed to third-party references such as resident or
+mortgagor or vendee (see § 17). Readers are much more engaged by a text
+that speaks to them directly. For example, the Air Force years ago began
+to remedy the problem of unnatural, hard-to-understand language in its
+directives. To translate a grievance procedure into plain English, the reviser used you instead of employee. One sentence originally read:
+If the employee feels that an interview with the immediate supervisor
+would be unsatisfactory, he or his representative may, in the first instance,
+present his grievance to the next supervisor in line.
+
+That sentence is much clearer with the personal word you:
+If you feel that your supervisor will not handle your case fairly, you may go
+directly to your supervisor’s supervisor.4
+
+In sum, when you address readers directly, they more readily see how the
+text applies to them.
+Another point is to begin sentences with And, But, and So—especially
+But. You do this in speech all the time. Good writers routinely do it in
+print—nearly 10% of the time.5 But legal writers often lapse into stiffer
+sentence openers like Similarly, However, Consequently, and Inasmuch
+as. Try replacing these heavy connectors with faster, more conversational
+ones.
+Here’s a good test of naturalness: if you wouldn’t say it, then don’t write
+it. You’ll give your writing much more credence if you come across as
+sincere, honest, and genuine. Your words will be plainer, your style more
+relaxed, and your prose more memorable. You should probably try reading
+your prose aloud to see whether you’d actually say it the way you’ve written it.
+
+Exercises
+Basic
+Rewrite the following openers and closers from letters to make them
+speakable:
+
+3. Wayne A. Danielson & Dominic L. Lasorsa, A New Readability Formula Based on the Stylistic
+Age of Novels, 33 J. Reading 194, 196 (1989).
+4. See Arthur O. England, Getting Your Message Across by Plain Talk, 34 J. Applied Psychol. 182,
+182 (1950).
+5. Francis Christiansen, Notes Toward a New Rhetoric, 25 College English 9 (1963); see also Bryan A.
+Garner, On Beginning Sentences with “But,” 3 Scribes J. Legal Writing 87 (1992).
+
+§ 20. Make everything you write speakable
+●
+
+Enclosed please find the following documents:
+
+●
+
+Pursuant to your instructions, I met with Roger Smith today regarding the abovereferenced cause.
+
+●
+
+Please be advised that the discovery cutoff in the above-referenced cause is Monday,
+March 20, 2000.
+
+●
+
+Pursuant to my conversation with Alex in your office on today’s date, I contacted
+the trustee.
+
+●
+
+This letter is for the purpose of retaining your services as a consultant regarding the
+above-referenced matter.
+
+●
+
+Thank you in advance for your courtesy and cooperation in this regard. Please do
+not hesitate to contact me should you have any questions regarding this request.
+
+Intermediate
+In a law review, find a long sentence or a short to medium paragraph that
+strikes you as particularly unspeakable. Type it, provide a citation, and set
+out a bulleted list of reasons why you consider it difficult to read aloud. If
+you belong to a writing group or class, bring a copy for each colleague.
+Advanced
+In a judicial opinion, find a two- or three-paragraph passage that strikes you
+as being particularly unspeakable. Type it, provide a citation, and set out a
+bulleted list of reasons why you consider it difficult to read aloud. Rewrite
+the passage. If you belong to a writing group or class, bring a copy of your
+before-and-after versions for each colleague.
+
+51
+
+part two
+Principles Mainly for Analytical and
+Persuasive Writing
+
+The phrase “analytical and persuasive writing” encompasses
+general expository prose: letters, memos, briefs, judicial opinions, and the like. The only excluded items, essentially, belong
+to the category known as “legal drafting” (see Part Three). In
+writing to analyze or persuade, strive for these major goals:
+● Get your point across quickly with an up-front summary.
+● Focus the argument.
+● Make it interesting.
+● Supply smooth transitions.
+● Quote smartly and deftly.
+Most legal writers don’t attain these goals. The tips that follow
+will allow you to stand apart.
+
+§ 21. Plan all three parts: the beginning, the middle, and the end.
+Virtually all expository writing should have three parts: an introduction,
+a main body, and a conclusion. You’d think everyone knows this. Not so:
+the orthodox method of brief-writing, and the way of many research
+memos, is to give only one part—a middle.
+How so? Well, formbook-style openers typically just restate the title.
+For example: Plaintiff Pantheon Corporation, by and through its attorneys of record, files this, Pantheon’s Memorandum in Support of Its
+Motion for Summary Judgment. Hence the title. That’s why it’s called
+“Pantheon’s Memorandum in Support” just an inch above this wasteful
+sentence. In some briefs, the hence-the-title sentence starts with Now
+comes . . . .
+The conclusion, meanwhile, is equally formulaic: For all the foregoing
+reasons . . . or (in antique language) Wherefore, premises considered, . . . .
+These concluding refusals to summarize are every bit as common as stale
+openers.
+If you’re writing that way, you’re neglecting the most critical parts of
+the brief: the beginning and the end.
+A Proper Opener
+The ideal introduction concisely states the exact points at issue. Stripped
+of all extraneous matter, the intro serves as an executive summary: it
+places the essential ideas before the reader.
+Fortunately, you’re almost always able to put a preliminary statement
+on the first page of a brief, even if the rules don’t call for it. Just put it
+there—as far up front as you can. In at least two jurisdictions—New York
+and New Jersey—including a preliminary statement is the norm. In most
+jurisdictions, though, very few lawyers use preliminary statements. But a
+good intro is always advisable.
+How do you decide what goes into a preliminary statement? Figure out
+first how many arguments you want to make, and then turn each into an
+issue statement.
+Let’s say you have a single issue. You might begin this way:
+Motion for Summary Judgment
+Preliminary Statement
+In ruling on this motion, the Court faces the following issue: Section 7300
+of the Internal Revenue Code prohibits the unauthorized disclosure of a
+taxpayer’s tax audit by an IRS agent. While drinking at a hotel bar, IRS Agent
+Harold Collins confronted Susan Jones, who was dining with her family in
+an adjoining restaurant, and shouted, “Ms. Jones, if I had your audit case,
+I’d have you in jail by now.” Did Agent Collins make an unauthorized disclosure of Susan Jones’s tax audit?
+
+That type of opener uses the “deep issue” technique (see § 22)—in which
+the issue is framed in separate sentences totaling fewer than 75 words.1
+§ 21 1. See Garner, The Winning Brief 47–79 (1999).
+
+55
+
+56
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Although the deep issue is hard to beat, you can also state the issue less
+formally in the preliminary statement. Here’s an example from another
+summary-judgment motion:
+Under Alabama law, a personal representative can bring a wrongful-death
+action on behalf of a decedent only if the decedent could have maintained
+a claim at the time of death. (Ala. Code § 6-5-410(a).) The decedent’s medical
+records establish that he was diagnosed with lung cancer in 1996. So the
+applicable two-year statute of limitations on the decedent’s personal-injury
+claim elapsed no later than 1998—nearly two years before his death. Since
+the two-year statute of limitations would have barred the decedent from
+pursuing a lawsuit at the time of his death in 2000, his personal representative is likewise barred from bringing suit.
+
+In short, don’t depend on a rule to tell you to put the issues up front.
+True, court rules often require them at the outset, as U.S. Supreme Court
+Rule 14 does. But many rules, especially in trial courts, don’t say anything
+about them at all. And even on appeal, various state-court rules require
+mere “Points Relied On” or “Points of Error”—something rather different
+from true issues.
+Despite these requirements—which you must comply with—always
+add a preliminary statement that highlights the issues. Your judicial readers will be grateful.
+A Satisfactory Middle
+The middle should—with a series of headings and subheadings (see § 4)—
+develop the reasoning by which the writer seeks to prove the affirmative
+or the negative of the issues stated in the introduction. How do you do
+that? First, select the main ideas that prove your conclusion. Then, arrange them in a way that shows the relations they naturally bear to one
+another and to the essential idea or ideas. All the main headings and
+subheadings should drive the reader toward your conclusion.
+Let’s say you have three issues. If so, you’ll have three parts in the body,
+typically proceeding from the strongest to the least strong. (Forget the
+weak arguments.) Each part will be organized to do the following:
+Elaborate the legal premises embedded in the issue statement.
+Show how the factual points fit into the legal premises.
+● Deal with counterarguments.
+● Drive the point home with an additional reason or set of reasons.
+●
+●
+
+That’s the basic way to organize the argument for each issue.
+The trickiest part is dealing with counterarguments (see § 30). You
+must demolish all serious ones, and the dialectical method of arguing is
+the best tool for this. A dialectic is something like a pendulum through
+time. At its simplest, its form is thesis–antithesis–conclusion. You’ll need
+to counter the antithesis to your position.
+
+§ 21. Plan all three parts: beginning, middle, and end
+
+A Strong Closer
+The conclusion should briefly sum up the argument. If you’re writing as
+an advocate, you’ll need to show clearly what the decision-maker should
+do and why. A good way to do this is to answer the questions posed in
+the opener.
+Just as your opener is crucial, so is your closer. It’s your chance to sum
+up—preferably in a fresh, expansive way. Yet the classic Wherefore, premises considered, . . .—a form with regional variations throughout the
+country—is a formulaic cop-out that says nothing.
+To close forcefully, recapitulate your main points concisely. Put them
+in a nutshell, without vague references to “the foregoing reasons” or “the
+reasoning discussed above.” You’ll project an image of confidence and professionalism.
+A Big Change
+All this may sound obvious. But judging from what lawyers actually do,
+it’s little known. Go down to the courthouse sometime and look at the
+filings: you’ll see that more than 80% of them have stock openers and
+closers. They’re all middle. This—more than anything else—explains
+why so many briefs are inadequate.
+Lawyers fear summarizing. They fear true openers and closers: they
+know that creating strong ones takes a lot of work. So they take the easy
+way out.
+But remember what Samuel Johnson, the great English critic and dictionary writer, once said: “What is written without effort is in general
+read without pleasure.”2 Talk to judges, as I frequently do, and they’ll tell
+you that they generally read briefs without the remotest hint of pleasure.
+It shouldn’t be that way.
+
+Exercises
+Basic
+Find a brief or judicial opinion that has a particularly good opener and
+closer. (For a brief, you might look at books with model briefs. You might
+also look at continuing-legal-education materials on appellate practice.) If
+you belong to a writing group or class, bring a copy for each colleague. Be
+prepared to explain why you think the introduction and conclusion are effective.
+Intermediate
+Find a research memo that has no proper opener or closer—that is, one
+that’s all middle. Write both a summary that could be added at the start and
+a fresh conclusion. If you’re part of a writing group or class, bring a copy of
+your work for each colleague. Be prepared to discuss the problems in the
+original and how you tried to solve them.
+2. Quoted in Jon Winokur, Writers on Writing 111 (2d ed. 1987).
+
+57
+
+58
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Advanced
+Find a motion (or memorandum in support) or a brief that launches straight
+into a statement of facts. Write a new preliminary statement that could be
+inserted at the beginning of the motion or brief. If you’re part of a writing
+group or class, bring a copy of your summary for each colleague. Be prepared
+to discuss the problems in the original and how you tried to solve them.
+
+§ 22. Use the “deep issue” to spill the beans on the first page.
+Virtually all analytical or persuasive writing should have a summary on
+page one—a true summary that capsulizes the upshot of the message.
+This upshot inevitably consists of three parts: the question, the answer,
+and the reasons. I don’t know of any exceptions. It’s true of good research
+memos, good briefs, and good judicial opinions. The summary is your
+opener.
+American schools once taught what was called “précis writing”—and
+every American high-school student knew what a précis was: an accurate
+summary of a much longer passage. Teachers gave their students a long
+paragraph and asked them to state the gist of it in one sentence. Or the
+students would recast a three-page essay as a single paragraph. Schools did
+these drills frequently until the 1950s or so, when précis writing fell out
+of fashion.
+If only it hadn’t fallen out of fashion, students would enter law school
+much better equipped to do what good lawyers must do: work on a complicated case for months or even years but be able to distill its essence down
+to a page.
+If you include an up-front summary, one major by-product will be that
+you’ll think more clearly. Why? Because if you haven’t isolated the most
+important idea, you probably haven’t been thinking as clearly as you
+might. By highlighting the issues and conclusions on page one, you’ll end
+up (1) testing the validity of those conclusions better, (2) ensuring that you
+carry through with them when you get to the middle, and (3) eliminating
+slag that your research has produced but that doesn’t help the analysis.
+To summarize effectively, be sure that you include the issues, the answers, and the reasons for those answers. If you’re writing a memo, page
+one ends up looking something like the example on page 59. If you’re
+writing a brief, page one should start with a preliminary statement that
+looks akin to the one on page 60.
+Have you noticed that the issue here contains more than one sentence?
+There’s a reason for that: it’s by far the best way to frame issues. You
+can do it in one sentence, of course, but that method typically ruins the
+chronology, forces you into overlong sentences, makes the issues unduly
+abstract, and results in altogether incomprehensible statements.
+Instead, try the “deep-issue” method, which means that you’ll:
+Put the issues first.
+Never—never—begin with Whether or any other interrogative word.
+● Break each issue into separate sentences.
+● Keep each issue under 75 words.
+●
+●
+
+Memorandum
+To: Partner
+From: Associate
+Date: June 6, 1995
+Re: Jimmy Gilmartin—Landlord–Tenant Dispute; Eviction Suit
+Questions Presented
+1.
+
+Vague Lease Provisions. Jimmy Gilmartin signed a lease containing
+several vague clauses, including one that requires him to “obey all
+rules of the building and to cooperate fully with the building management.” Do vague provisions such as that one make the lease void and
+unenforceable?
+Short Answer:
+
+2.
+
+Housing-Code Violations. Gilmartin’s apartment has several housingcode violations: a hole in the bedroom floor, mice infestation, and a
+continually malfunctioning toilet. What is the effect of these violations on the landlord’s ability to collect back rent?
+Short Answer:
+
+3.
+
+No. A lease is enforceable if it describes the premises, identifies the parties, states the duration of the
+lease and the rental amounts, and is signed by both
+parties. If those elements are present in the lease,
+other vague provisions will not render the lease unenforceable.
+
+If the defects existed when Gilmartin signed the
+lease, then the landlord won’t be able to collect back
+rent. But rather than being free from all obligation,
+Gilmartin will be treated as a tenant at sufferance
+who must pay the fair rental value of the housing,
+given its condition.
+
+Eviction-Suit Defenses. The landlord has sued for eviction, claiming
+that Gilmartin has violated various lease terms. What are Gilmartin’s
+possible defenses or counterclaims?
+Short Answer:
+
+Gilmartin may seek abatement of any rent paid in
+excess of the fair rental value of the premises—a
+remedy in the nature of recoupment. In the alternative, he may seek damages for breach of the implied
+warranty of habitability—a remedy that is considered a positive counterclaim. The distinction can be
+important because only in the action for damages
+can the tenant recover money, as opposed to merely
+reducing the landlord’s recovery.
+
+60
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+State of Illinois
+County of St. Clair
+
+IN THE CIRCUIT COURT OF ST. CLAIR COUNTY
+CRIMINAL DIVISION
+People of the State of Illinois
+vs.
+Jorge Duren
+
+§
+§
+§
+§
+§
+
+No. 97 CR 54965
+
+Memorandum in Support of
+Defendant’s Motion to Quash Arrest and Suppress Evidence
+This motion presents the court with a single issue:
+Officer Bradley answered a complaint about possible gang-related
+drug activities outside an East St. Louis building. After arriving,
+he searched 12 people outside but found nothing. He then went
+inside, to the second floor, where he saw Jorge Duren. Without
+probable cause, he shouted that he would search Duren, who then
+dropped a bag containing contraband. Given that the threatened
+search would have been illegal, can the Court use the fruits of Officer Bradley’s threat?
+This issue swallows all the subissues relating to Duren’s motion to quash
+and suppress.
+
+Weave in enough facts, and arrange them chronologically, to show how
+the problem arises.
+● Forget about whether the answer is yes or no.
+●
+
+If you’re writing an analytical issue, for a memo, the question will be
+open-ended, as in these two:
+While investigating a complaint about loud music, Officer Smith knocked
+on Jimmy Jeffson’s door. The music volume lowered suddenly, and Jeffson
+opened the door. Officer Jones then stepped into the apartment as Jeffson
+tried to close the door. If Officer Smith did not have a search warrant and
+no exigent circumstances existed, did his entry into the apartment violate
+Jeffson’s Fourth Amendment privacy protections? [64 words]
+Under Georgia law, communications between psychiatrists and their patients are absolutely privileged. Ms. Jenkins claims that Mr. Fulham’s unwelcome sexual advances caused her extreme emotional harm, triggering
+her need for psychiatric treatment. Given that Ms. Jenkins has placed her
+need for this treatment at issue, has she waived the psychiatrist–patient
+privilege? [52 words]
+
+§ 22. Use the “deep issue” to spill the beans on the first page
+
+You don’t know the answer when you read the question. The answer—the
+underlying legal rule—should immediately follow an analytical issue of
+this type.
+If, on the other hand, you’re writing a persuasive issue for a brief, the
+question should suggest the answer you want. The deep issue is cast
+loosely as a syllogism, with the legal premise first, then the factual premises (again in chronological order), followed by a short, punchy question.
+Here are two good examples:
+Under Rule 25, the court must dismiss a claim if an appropriate party is
+not substituted for a deceased party within 90 days after a suggestion of
+death is filed. Christine Black died on July 10, 2000. Western Co. filed a
+valid suggestion of death on July 15. No party has been substituted for
+Christine Black, and more than 90 days have passed. Should Christine
+Black’s claim be dismissed? [69 words]
+In Ohio, evidence of prior accidents is admissible to show a manufacturer’s
+knowledge of a design defect only if the prior accidents are substantially
+similar to the subject claim. Jones claims that he was injured when the rear
+brakes on his Perugia motorcycle failed. Jones seeks to introduce evidence
+of prior accidents involving front-brake failures on Perugia motorcycles. Is
+the evidence of prior accidents admissible? [66 words]
+
+You could rephrase those issues in single sentences, of course, but who
+would want to? You’d either torture the language or postpone the crux of
+the problem until later in the writing. The multisentence treatment in
+fewer than 75 words is the best method for achieving clarity, speed, and
+power. Once you master the technique, you’ll be a certifiably clear
+thinker.
+
+Exercises
+Basic
+In your own words, state the principal issue decided by a court in a published opinion. Use the deep-issue technique.
+Intermediate
+Find a judicial opinion that takes several paragraphs before getting to the
+point. Rewrite the opening paragraph with a more satisfactory opener. If
+you’re part of a writing group or class, bring a copy of both versions for
+each colleague.
+Advanced
+Take a published case that includes a dissenting opinion. Frame the deep
+issue decided by the majority. Then frame the most nearly corresponding
+issue that a dissenter would have wanted. If you’re working in a group, be
+prepared to discuss the basic disagreement between the two sides. Below is
+an example of how you might frame divergent issues on the same point:
+#1 Missouri’s Spill Bill imposes liability on a “person having control over a hazardous
+substance” during a hazardous-substance emergency. Binary Coastal, as a landowner, controlled its land when it installed gasoline tanks and then leased the
+
+61
+
+62
+
+Part Two. Principles for Analytical and Persuasive Writing
+land to a service station. In February 2000, a hazardous-substance emergency occurred on the land. Was Binary Coastal a “person having control”?
+#2 Missouri’s Spill Bill imposes liability specifically on “a person having control over
+a hazardous substance” during a hazardous-substance emergency. In January 2000,
+Binary Coastal leased some land to a service station but had nothing to do with
+day-to-day operations or with the activities involving hazardous substances. In
+February, Binary Coastal’s lessee experienced a release of hazardous substances.
+Did Binary Coastal have control of these substances at the time of release?
+
+And here’s an example from a published case1 —one in which no judge dissented. Yet you might well conclude that the hypothetical dissent (#2) is
+the better view.
+#1 Under principles of statutory construction, when statutes are in conflict, the specific controls over the general. In 1986, the Legislature narrowly tailored the retirement statutes so that a retiree over the age of 55 who decided on a lump-sum
+payment of benefits would forfeit certain other benefits. The Equal Employment
+Opportunity Commission now claims that this amendment is impermissible in
+light of the 1963 age-discrimination statute, which is broadly worded. Which statute controls?
+#2 Since 1963, the statutory law of this state has prohibited age discrimination. Yet
+in 1986, the Legislature amended the retirement statutes in a way that forced
+retirees over the age of 55 to forfeit some of their benefits if they chose a lumpsum payment—but allowed those under 55 to make this choice with no such
+penalty. Did the Legislature intend this anomalous reversal of its long-held policy
+against age discrimination?
+
+§ 23. Summarize. Don’t overparticularize.
+One requisite for clear thinking—and for getting thoughts across to readers—is knowing how to establish a context before mentioning details.
+Otherwise, your readers won’t know what to make of the details. They’ll
+get impatient. And they might even give up on you.
+When you state the facts of a case, then, you need to be sure that you
+first give an introductory summary. That way, your readers will have a
+framework for understanding the case as the factual statement unfolds.
+You’ll have to work hard to distinguish what is necessary from what
+isn’t. Although details can be important, you must omit the tedious ones.
+You’re not trying to compile details; you’re trying to select them knowledgeably. Here’s a good test in winnowing important from unimportant
+facts: if it isn’t necessary to understanding the issues or if it doesn’t add
+human interest, then leave it out.
+In legal writing, the overparticularized style most commonly manifests
+itself in litanies of dates, as here:
+On February 12, 1995, at or about 3:00 p. m., while showering, Plaintiff
+fell to the floor when her bathroom ceiling collapsed, striking her on the
+head. On February 12, 1995, at 4:06 p. m., paramedics took her, unconscious, to the hospital.
+On February 13, 1995, Plaintiff sued the apartment owner, alleging neg§ 22 1. Nebraska Equal Opportunity Comm’n v. State Employees Retirement Sys., 471 N.W.2d 399
+(Neb. 1991).
+
+§ 23. Summarize. Don’t overparticularize
+
+ligence and gross negligence in failing to maintain the premises. On
+March 6, 1995, Plaintiff visited Dr. Eugene Higginbotham, an orthopedic
+surgeon, who confirmed the diagnosis but concluded that surgery was not
+indicated, given Plaintiff’s uncontrolled diabetes and her obesity. On the
+following dates, Plaintiff visited a physical therapist for her back condition:
+March 12, 1995, April 15, 1995, June 6, 1995, August 2, 1995, October 5,
+1995, and November 16, 1995. On December 10, 1995, the apartment owner
+settled the case for an undisclosed sum.
+On March 17, 1996, at or about 2:25 a.m., Plaintiff allegedly slipped and
+fell on a candy bar in a deserted hallway of Mega Electronics, Inc., where
+she worked as a night custodian. On March 17, 1996, at 2:40 a.m., Plaintiff reported the incident to the company nurse, who sent her home. On March 18
+and 19, 1995, Plaintiff called in sick. On March 19, 1995, Plaintiff visited
+Dr. Felix Seaniz, who diagnosed her condition as a herniated disk caused by
+the recent fall at Mega Electronics. During the March 19, 1995 visit, when
+asked about previous back problems, Plaintiff failed to disclose the fall in
+her shower on February 12, 1995. When asked why, she testified that she
+believed the February 12, 1995 fall unimportant because she had experienced no back pain since her last therapy session on November 16, 1995.
+
+With the precise dates removed, and some relative times (such as an hour
+later) supplied, the passage becomes much cleaner. The reader can more
+easily focus on the story:
+In February 1995, while showering, Ms. Walker fell to the floor when
+her bathroom ceiling collapsed, striking her on the head. An hour later,
+paramedics took her, unconscious, to the hospital, where she was diagnosed
+with a herniated disk.
+A few days later, Ms. Walker sued the apartment owner, alleging negligence and gross negligence in failing to maintain the premises. She then
+visited Dr. Eugene Higginbotham, an orthopedic surgeon, who confirmed
+the diagnosis but concluded that surgery was not indicated, given her uncontrolled diabetes and her obesity. During the next nine months, Ms.
+Walker visited a physical therapist six times for her back condition. In December 1995, a month after her last therapy session, the apartment owner
+settled the case for an undisclosed sum.
+Three months later, in March 1996, Ms. Walker allegedly slipped and fell
+on a candy bar in a deserted hallway of Mega Electronics, Inc., where she
+worked as a night custodian. Soon after the alleged fall, she reported the
+incident to the company nurse, who sent her home. For the next two days,
+she called in sick. She then visited Dr. Felix Seaniz, who diagnosed her
+condition as a herniated disk caused by the recent fall at Mega Electronics.
+During that visit, when asked about previous back problems, Ms. Walker
+failed to disclose the fall in her shower a year earlier. When asked why,
+she testified that she believed the earlier fall unimportant because she had
+experienced no back pain since her last therapy session a few months
+earlier.
+
+This rewrite reflects what happens when the writer considers the story
+from the reader’s point of view—the only point of view that really
+matters.
+
+63
+
+64
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Exercises
+Basic
+Rewrite the following passage to improve the story line by omitting needless details:
+On September 25, 1997, in a Texas federal district court, R&B Music sought
+injunctive relief against the McCoys to prevent them from any further use or disclosure of R&B’s trade secrets. On September 26, 1997, the Texas court issued an
+order restraining the McCoys from using or disclosing certain R&B property and
+proprietary information. On September 26, 1997, the court set an evidentiary
+hearing for Tuesday, October 7, 1997, on R&B’s preliminary-injunction motion.
+On October 6, 1997, the McCoys moved to dismiss for an alleged lack of venue
+and personal jurisdiction. Alternatively, they asked the court to transfer the case
+to an Illinois federal court under 28 U.S.C. § 1404 or § 1406.
+On October 7, 1997, when the parties arrived for the injunction hearing, the
+Texas court indicated an intent to hear testimony and rule on the McCoys’ dismissal or transfer motion, to which R&B had been given no chance to respond.
+The testimony established that both of the McCoys had had significant contacts
+in Texas for the past eight years—including daily phone calls and faxes to and
+from R&B; their three visits to R&B’s Texas headquarters; and their work in negotiating R&B contracts with Texas musicians.
+On October 8, 1997, the Texas court transferred the case to this Court, noting
+that the transfer was for the reasons stated on the record. As the October 7, 1997
+transcript reveals, the Texas court decided that while it has personal jurisdiction
+over John McCoy, it lacked personal jurisdiction over Kate McCoy. According to
+the court, the case should be transferred because “to accord relief to R&B down
+here while leaving the Illinois court to deal with Kate McCoy simply would not
+provide an effective situation” for any of the parties. The judge did not indicate
+which statutory section governed the transfer.
+On October 8, 1997, in the same order, the Texas court further ruled that its
+September 26, 1997 order restricting both John and Kate McCoy from using or
+disclosing R&B’s trade secrets would remain in effect until further orders of the
+Illinois court. On October 13, 1997, R&B filed the present supplemental motion
+for a preliminary injunction, asking this Court to extend and expand the injunctive relief already granted by the Texas court.
+
+Intermediate
+Rewrite the following passage to prune the overparticularized facts and to
+improve the story line. The passage comes from an appellant’s brief—specifically from a section entitled “Nature of the Case and Material Proceedings in the Lower Courts,” just after the preliminary statement.
+On December 26, 1999, the Division of Child Support Enforcement (“DCSE”)
+issued a Mandatory Withholding of Earnings Order directing the Social Security
+Administration to deduct $200.00 per month for current child support and
+$100.00 per month for payment on child-support arrears. On June 18, 2000, Skelton filed a Motion to Quash the Mandatory Withholding of Earnings Order with
+the Buchanan County Juvenile and Domestic Relations District Court. In the
+pleading, Skelton requested that the withholding order of the Division be reduced
+and that he be given credit against arrears for the amount of social-security benefits received by the children, and that the court recalculate the arrears. Hearings
+on the Motion to Quash in Buchanan County Juvenile and Domestic Relations
+District Court were held on September 11, 2000, and October 13, 2000. At the
+September 11, 2000 hearing, the court entered a temporary order requiring $28.50
+per month toward current support and requiring $71.50 per month toward the
+arrears. The Motion to Quash was treated as a Motion for Reduction. The court
+took the issue of arrears under advisement and directed that the counsel for the
+parties prepare briefs on the issue concerning credit for a lump-sum socialsecurity payment. The child support was set by using the appropriate code provisions, and neither party objected to the child-support award or the arrears
+payment.
+
+§ 24. Introduce each paragraph with a topic sentence
+On October 13, 2000, the Buchanan County Juvenile and Domestic Relations
+District Court denied the Motion to Quash and ruled that “credit for socialsecurity payments made to the children as to debt owed to the Division is denied.”
+The Court declined to exercise equitable relief for Mr. Skelton (Appellee) as to any
+debt owed to custodial parent. Appeal was noted in open court, so no bond was
+required for appeal.”
+This matter was subsequently appealed and tried de novo in the Circuit Court
+of Buchanan County. At the circuit-court level, the court denied the Division’s
+request for an appeal bond and ruled that Skelton should receive credit for the
+$7,086.10 lump-sum social-security benefits paid on behalf of the children of Mr.
+Skelton. This reduced the child-support arrears from $14,017.14 to $6,931.04. At
+the date of the circuit-court hearing, all the children were over the age of 18.
+The circuit court was reminded that on October 14, 1995, Skelton was found
+guilty of contempt by the Buchanan County Juvenile and Domestic Relations
+District Court and was advised “to immediately notify the court of any change in
+employment, layoff, reduction in wages or hours worked.” The court further
+warned that “no further delinquency would be tolerated and any change in circumstances must be followed up with a petition to decrease, or else contempt
+sanctions will be imposed.”
+
+Advanced
+Find a passage in which too much detail impedes the progress of the writer’s
+thoughts. If you’re part of a writing group or class, be prepared to discuss
+why you think the detail is excessive and how you might prune it.
+
+§ 24. Introduce each paragraph with a topic sentence.
+Although it’s possible to put a topic sentence last or in the middle, the
+best approach is almost always to open the paragraph with it. By stating
+the controlling idea, a topic sentence will lend unity to a paragraph, which
+typically begins with a shift in focus from what preceded. The topic sentence will reorient readers to this new focus. And with well-introduced
+paragraphs, the writing becomes much more skimmable: readers who are
+in a hurry will get your point efficiently.
+Good writers think of the paragraph—not the sentence—as the basic
+unit of thought. The topic sentence ensures that each paragraph has its
+own cohesive content. A good topic sentence centers the paragraph. It
+announces what the paragraph is about, while the other sentences play
+supporting roles.
+This sounds simple, yet legal writers often stumble over topic sentences. The problem commonly occurs in discussing caselaw. Consider
+the following paragraph, which begins with a case citation followed by an
+obscure judicial disposition:
+In Johnson v. Cass & Emerson, 99 A. 633 (Vt. 1917), the Vermont Supreme Court reversed the decision of a lower court that had held that the
+plaintiff was “doing business” in a name other than its own without making
+the appropriate filing. Id. In that case the plaintiff, W. L. Johnson, used stationery in his dealings with the defendant which contained the words
+“Johnson’s Employment Office, W. L. Johnson, Prop’r.” Id. at 634. The court
+observed that the stationery “on its face showed Johnson as the owner of
+the business . . . [and that] no person could be reasonably misled by it.” Id.
+at 634–35. The court further implied, however, that if the plaintiff had engaged in misleading acts in addition to the aforementioned stationery, such
+as the concurrent running of regular advertisements bearing only the name
+
+65
+
+66
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+“Johnson’s Employment Agency,” it would have affirmed the decision of the
+court below. Id. at 635. Thus, in Johnson, the pivotal issue was whether the
+plaintiff was “doing business” under an unregistered assumed name during
+his relationship with the defendant, rather than if he had actually held himself out as someone else to the defendant.
+
+That paragraph is quite difficult to follow partly because it lacks a good
+topic sentence and partly because of disruptions in chronology (see § 3).
+Both can be fixed with a little effort (citations, of course, would be footnoted—see § 28):
+The Supreme Court of Vermont has held that the pivotal issue is whether
+a plaintiff “does business” under an unregistered assumed name while dealing with someone the plaintiff later tries to sue. In Johnson v. Cass & Emerson, W. L. Johnson, the plaintiff, transacted business with the defendant on
+stationery with the printed words, “Johnson’s Employment Office, W. L.
+Johnson, Prop’r.” According to the court, the stationery showed that Johnson “was the owner of the business and was doing business under his own
+name,” concluding that “no person could be reasonably misled by it.” Apart
+from the stationery, there were no acts suggesting that “Johnson’s Employment Agency” was a registered name. If there had been, the court implied,
+the result might have been different. But the court held that Johnson could
+sue in a Vermont court because he did not do business there under an unregistered name.
+
+Notice how, in this revision, the case name doesn’t come up until the
+second sentence. Delaying the citation typically enables you to write a
+stronger topic sentence.
+Whether you’re discussing cases or anything else, look closely at your
+topic sentences when revising your prose. A reader should get most of the
+story from skimming the topic sentences.
+
+Exercises
+Basic
+Write a new topic sentence for the following paragraph—one that you could
+insert at the beginning while leaving the following sentences intact:
+Over the past 100 years, legal publishers developed an intricate set of printed materials that controlled the flow of legal information. Most of this apparatus was
+built around cases. Elaborate systems of reporting, digesting, tracing, and evaluating cases developed. Until very recently, mastering these systems was the essence
+of learning legal research. The lawyer graduating from law school in 1975 had to
+know much more than someone who graduated in 1875, because the use of traditional paper-based, case-centered tools had grown more complex. But it was still
+a system built on the old paradigm of the paper-information world. This old-style
+research is the only kind of research that some senior lawyers, judges, and law
+professors accept as legitimate. That will change in the course of the next generation, but it hasn’t yet changed completely. Meanwhile, the new world of legal
+research is rooted in electronic information. In the past 30 years, the variety of
+electronic databases has grown and the information that they store, as well as the
+search methods for using them, have improved enormously. Even the Internet
+carries a wide range of legal information. The modern researcher must know how
+to retrieve these modern tools.
+
+§ 25. Bridge between paragraphs
+
+Intermediate
+In published legal writing, find a four-page passage with strong topic sentences. Underline them. If you’re part of a writing group or class, bring copies of your work to the next meeting.
+Advanced
+In published legal writing, find a four-page passage with weak topic sentences. Edit the passage to strengthen them. If you’re part of a writing group
+or class, bring copies of your work to the next meeting.
+
+§ 25. Bridge between paragraphs.
+Despite the topic sentence’s importance in announcing the topic, the
+more important function of a paragraph opener is to provide a transition.
+That is, every paragraph opener should contain a transitional word or
+phrase to ease the reader’s way from one paragraph to the next. Readers
+will then immediately see whether the new paragraph amplifies what has
+preceded, contrasts with it, or follows it in some other way.
+Almost invariably, a good paragraph opener establishes a connection by
+using one or two of these possible devices:
+Pointing words—that is, words like this, that, these, those, and the.
+Echo links—that is, words or phrases in which a previously mentioned idea reverberates.
+● Explicit connectives—that is, words whose chief purpose is to supply
+transitions (such as further, also, therefore).
+●
+●
+
+Strong writers use all three of these to establish continuity from paragraph
+to paragraph. Let’s consider each device and then see how they together
+work in context.
+Pointing words—especially this and that—refer directly to something
+already mentioned. They point to an antecedent. If you first talk about
+land at 2911 Maple Avenue, and then you refer to that property, the word
+that points to the preceding reference. It establishes an unambiguous connection.
+Pointing words often work in tandem with echo links. In fact, the word
+property—in the phrase that property—is an echo of 2911 Maple Avenue.
+It’s a different word in which the earlier reference reverberates. Imagine a
+friend of yours saying that courts imprison too many people and thereby
+aggravate social problems, the ultimate result being greater levels of violence. You respond by saying, “That argument is fallacious for three reasons.” The phrase that argument is a pointing word plus an echo link.
+You’re off to a great start: now good luck in supplying the three reasons
+you’ve so deftly introduced.
+Finally, there are explicit connectives. You won’t be able to write well
+without them. Although some writers have a bias against explicit connectives—and they can indeed be overdone—professional writers find them
+indispensable. They are often essential for clarifying the relationship between two sentences. What follows is a handy list of some of the best
+ones. Photocopy it, tape it to a card, and prop it up by your computer or
+
+67
+
+68
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+legal pad. Besides reminding you of the need for transitions, it will supply
+you with a generous range of options.
+When adding a point: also, and, in addition, besides, what is more,
+similarly, nor, along with, likewise, too, moreover, further
+● When giving an example: for instance, for example, as one example,
+to cite but one example, for one thing, for another thing, likewise, another
+● When restating: in other words, that is, this means, in simpler terms,
+in short, put differently, again
+● When introducing a cause: because, since, when
+● When introducing a result: so, as a result, thus, therefore, accordingly,
+then, hence
+● When contrasting: but, instead, yet, however, on the one hand, on the
+other hand, still, nevertheless, nonetheless, conversely, on the
+contrary, whereas, in contrast to, unfortunately
+● When conceding or qualifying: granted, of course, to be sure, admittedly, though, even though, even if, only if, true, while, naturally, in some cases, occasionally, if, while it might be argued
+that, despite
+● When pressing a point: in fact, as a matter of fact, indeed, of course,
+without exception, still, even so, anyway, the fact remains, assuredly
+● When explaining a sentence: that is, then, earlier, previously, meanwhile, simultaneously, now, immediately, at once, until now,
+soon, no sooner, that being so, afterward, later, eventually, in
+the future, at last, finally, in the end
+● When summing up: to summarize, to sum up, to conclude, in conclusion, in short, in brief, so, and so, consequently, therefore,
+all in all
+● When sequencing ideas: First, . . . . Second, . . . . Third, . . . . Finally, . . . .
+●
+
+In creating bridges, Judge Richard Posner often uses explicit connectives. But in the passage on page 69, from The Problems of Jurisprudence
+(1990), he uses a pointing word and an echo link (This account), another
+pointing word plus an echo (This need), an echo (spirit of pragmatism),
+and an explicit connective (Latterly) followed by an echo (pragmatism).
+A good writer generally combines all the methods for bridging. On page
+70 is an example from A Matter of Principle (1985), by Ronald Dworkin,
+in which he uses an explicit connective (But), another (But), a pointing
+word coupled with an echo (this suspicion), and two explicit connectives
+(the comparatives similar and more fundamental).
+Try this exercise: take something you’ve written, look at the paragraph
+breaks, and see whether you can spot bridging words. If you find that
+you’re bridging effectively in at least a third of the paragraphs, then you’ve
+already been (perhaps unconsciously) using this technique. Build on this
+
+§ 25. Bridge between paragraphs
+
+strength—that is, start building bridges every time you make a new paragraph.
+But if you find that you’re seldom including a bridge, that probably
+means you have some discontinuities in the text. You’re not writing with
+an unbroken train of thought—with a clean line. This technique should
+improve the structure of your writing.
+
+Exercises
+Basic
+The following sentences are consecutive paragraph openers from Lawrence
+Friedman’s Crime and Punishment in American History (1993). Identify the
+bridging words, as well as the bridging method (pointing word, echo link,
+explicit connective), in each paragraph opener, beginning with the second.
+Remember that each of these paragraph openers is followed by several other
+sentences in the paragraph. You’re not trying to link the sentences listed;
+rather, you’re trying to spot words in each paragraph opener that relate explicitly to what must have come at the end of the preceding paragraph.
+1. The automobile made its first appearance on the streets, for all practical purposes,
+in the first decade of this century.
+2. By 1940, the United States had become an automobile society.
+3. The numbers have continued to rise, as automobiles choke the roads and highways,
+and millions of people, living in the land of suburban sprawl, use the automobile
+as their lifeline—connecting them to work, shopping, and the outside world in
+general.
+4. Thus, a person who parks overtime and gets a “ticket” will get an order to appear
+in court and face the music.
+5. In many localities, traffic matters got handled by municipal courts, police courts,
+justices of the peace, and sometimes specialized departments of a municipal court.
+6. The traffic court judge, as one would expect, did not have the prestige and dignity
+of a higher-grade judge.
+7. The root of this evil was, perhaps, the fact that defendants did not—and do not—
+see themselves as criminals, but rather as unlucky people who got caught breaking
+a rule that everybody breaks once in a while.
+8. This attitude came to the surface in a 1958 American Bar Association report on
+traffic matters in Oklahoma.
+
+Intermediate
+In published legal writing, find an exemplary passage (four pages or so) illustrating good bridges. At the outset of each paragraph, box the bridging word
+or words. If you’re part of a writing group or class, bring a copy for each
+colleague, provide the full citation on each copy, and be prepared to discuss
+your findings.
+Advanced
+In published legal writing, find a passage (four pages or so) illustrating an
+absence of bridges. Either add a bridge where needed or else explain in the
+margin why the problem isn’t fixable by an editor. If you’re part of a writing
+group or class, bring a copy for each colleague, provide the full citation on
+each copy, and be prepared to discuss your findings.
+
+71
+
+72
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+§ 26. Vary the length of your paragraphs, but generally keep them
+short.
+Have you ever done a word count for your paragraphs? If not, you might
+find it revealing. Strive for an average paragraph of no more than 150
+words—preferably far fewer—in three to eight sentences. It’s tempting to
+mandate a sentence count. The problem, of course, is that an average of
+six sentences could still be horrendous if the sentences were each 80
+words long. So a word count is more reliable.
+As with sentence length (see § 6), you need variety in paragraph length:
+some slender paragraphs and some fairly ample ones. But watch your average. And remember that there’s nothing wrong with an occasional onesentence paragraph. The superstition to the contrary is a remnant of halfremembered grammar-school lessons.1
+During the 20th century, paragraphs tended to get shorter. Although
+finding truly representative samples is a tricky matter, the following
+data—showing average numbers of words per paragraph in the works of
+noted 20th-century legal writers—illustrate the trend:
+Writer
+
+Average Words per Paragraph
+
+James Bradley Thayer (1900)
+Oliver Wendell Holmesb (1909)
+James Barr Amesc (1913)
+John Alderson Footed (1914)
+Charles Evans Hughese (1928)
+Harry D. Nimsf (1929)
+William F. Walshg (1930)
+Benjamin N. Cardozoh (1939)
+William L. Prosser i (1941)
+Samuel Willistonj (1948)
+Arthur L. Corbink (1952)
+Thomas E. Atkinsonl (1953)
+Karl N. Llewellynm (1960)
+Frederick B. Wiener n (1967)
+Reed Dickersono (1975)
+Richard A. Posner p (1977)
+Susan Estrichq (1987)
+George T. Bogertr (1987)
+Michael E. Tigar s (1993)
+Karen Grosst (1997)
+Charles Alan Wright u (1999)
+a
+
+655
+270
+217
+426
+434
+211
+286
+322
+139
+189
+116
+119
+151
+127
+95
+153
+118
+85
+74
+116
+84
+
+a
+James Bradley Thayer, Unilateral Mistake and Unjust Enrichment as a Ground
+for the Avoidance of Legal Transactions (1900), in Harvard Legal Essays 466–89
+(1934) (including three paragraphs containing 1,000⫹ words).
+b
+Oliver Wendell Holmes, Holdsworth’s English Law (1909), in Collected Legal
+Papers 285–90 (1920).
+c
+James Barr Ames, Two Theories of Consideration, in Lectures on Legal History
+323–32 (1913).
+
+§ 26 1. For authorities debunking the false prohibition of one-sentence paragraphs, see John R. Trimble,
+Writing with Style 92–93 (2d ed. 2000); Bryan A. Garner, The Elements of Legal Style 67 (1991); Theodore M. Bernstein, The Careful Writer 324 (1965).
+
+§ 26. Vary the length of paragraphs, but keep them short
+d
+John Alderson Foote, A Concise Treatise on Private International Jurisprudence
+126–42 (Coleman Phillipson ed., 4th ed. 1914) (including a one-sentence paragraph
+of only 22 words!).
+e
+Charles Evans Hughes, The Supreme Court of the United States 57–67 (1928).
+f
+Harry D. Nims, The Law of Unfair Competition and Trade-Marks §§ 259–260,
+at 688–95 (3d ed. 1929).
+g
+William F. Walsh, A Treatise on Equity § 48, at 238–50 (1930).
+h
+Benjamin N. Cardozo, Law and Literature, 52 Harv. L. Rev. 472 (1939) (entire
+essay).
+i
+William L. Prosser, Handbook of the Law of Torts § 24, at 143–50 (1941).
+j
+2 Samuel Williston, The Law Governing Sales of Goods §§ 425–426, at 605–13
+(rev. ed. 1948).
+k
+Arthur L. Corbin, Corbin on Contracts § 532, at 487–90 (1952).
+l
+Thomas E. Atkinson, Handbook of the Law of Wills § 96, at 499–505 (2d ed.
+1953).
+m
+Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 56–61
+(1960).
+n
+Frederick Bernays Wiener, Briefing and Arguing Federal Appeals § 62, at 197–
+200 (1967).
+o
+Reed Dickerson, The Interpretation and Application of Statutes 1–5 (1975).
+p
+Richard A. Posner, Economic Analysis of the Law § 4.5, at 74–79 (2d ed. 1977).
+q
+Susan Estrich, Real Rape 58–63 (1987).
+r
+George T. Bogert, Trusts § 113, at 408–11 (6th ed. 1987).
+s
+Michael E. Tigar, Federal Appeals § 5.13 (2d ed. 1993).
+t
+Karen Gross, Failure and Forgiveness: Rebalancing the Bankruptcy System
+41–46 (1997).
+u
+1 Charles Alan Wright, Federal Practice and Procedure § 1, at 1–5 (1999).
+
+Pity the poor readers of Thayer, Foote, and Hughes!
+The sampling from Professor Wright’s celebrated treatise, Federal Practice and Procedure,2 illustrates the variety that adds interest and appeal.
+His longest paragraph contains 231 words. His shortest is a single sentence of 14 words.
+Despite this powerful evidence, much contemporary legal writing contains massive paragraphs. An average of 250 words or more isn’t uncommon, especially in law reviews. But it occurs in court papers as well, and
+this raises a special problem. If you double-space, as court rules require,
+then a 250-word paragraph will occupy 85–90% of the page. You’ll end
+up with about one paragraph per page. This makes for an intimidating,
+blocklike density. The mere sight of it is enough to put off the modern
+reader.
+But if your average is under 150 words—or, better yet, under 100—the
+reader can come up for air more frequently. You’ll have an average of two
+or more paragraphs per page. Having some visual variety, the page will
+take on a more relaxed feel—whether you’re double-spacing or singlespacing.
+
+Exercises
+Basic
+In published legal writing, find a three- or four-page example of nicely varied
+paragraph lengths. Identify something specific that you like about the passage. If you belong to a writing group or class, bring a copy for each colleague
+and be prepared to discuss your example.
+2. Charles Alan Wright et al., Federal Practice and Procedure, 55 vols. (1978–2000).
+
+73
+
+74
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Intermediate
+Break down each of the following passages so that it contains three to five
+separate paragraphs. Find the best places for starting new paragraphs.
+●
+
+When the courts of equity created the equity of redemption, they ignored the parties’ explicit intention. They allowed the mortgagor to regain the property by performing the secured obligation after the legal title to the property had vested absolutely in the mortgagee. This vesting took place according to both the parties’
+express language in the mortgage deed and the effect that the law courts gave the
+language. After their original intervention, equity courts developed the doctrine prohibiting the clogging of the mortgagor’s equity of redemption. Under this doctrine,
+even though the mortgage is in default, no agreement contained in the mortgage
+can cut off a recalcitrant mortgagor’s equity of redemption without the resort to
+foreclosure by the mortgagee. Courts won’t enforce a mortgagee’s attempts to have
+the mortgagor waive the right to be foreclosed in the event of a default. The prohibition against clogging has been characterized by a variety of labels. The most common characterization associated with the doctrine in the United States is “once a
+mortgage, always a mortgage.” This is only another way of saying that a mortgage
+can’t be made irredeemable. The clogging doctrine, as a corollary of the equity of
+redemption, prevented evasion by ingenious and determined mortgagees. These
+mortgagees had tried using many types of clauses that, while recognizing the existence of the equity of redemption, nullified or restricted its practical operation.
+
+●
+
+Before an intelligent study of criminal law can be undertaken, it is necessary to
+focus on the single characteristic that differentiates it from civil law. This characteristic is punishment. Generally, in a civil suit, the basic questions are (1) how much,
+if at all, defendant has injured plaintiff, and (2) what remedy or remedies, if any, are
+appropriate to compensate plaintiff for his loss. In a criminal case, on the other
+hand, the questions are (1) to what extent, if at all, defendant has injured society,
+and (2) what sentence, if any, is necessary to punish defendant for his transgressions.
+Since the criminal law seeks to punish rather than to compensate, there should
+be something about each course of conduct defined as criminal that renders mere
+compensation to the victim inadequate. This follows from the truism that no human being should be made to suffer if such suffering cannot be justified by a concomitant gain to society. No rational assessment of the kinds of activity that should
+be punished can be undertaken without some analysis of the purposes of punishment. Those purposes most frequently mentioned are reformation, restraint, retribution, and deterrence.
+
+●
+
+Declaratory remedies furnish an authoritative and reliable statement of the parties’
+rights. Other remedies may be added if necessary, but the declaratory remedy itself
+makes no award of damages, restitution, or injunction. The chief problem in obtaining declaratory relief lies in the rules of justiciability—rules that courts will
+not issue advisory opinions, decide moot cases or those that are not ripe, or deal in
+any dispute that does not count as a case or controversy. Although people might
+settle legal arguments between themselves by going to the law library or calling the
+librarian, they cannot call on the courts this way. These concerns grow out of procedural and process values. They involve what we think about the nature of courts
+and judicial work. Before declaratory-judgment statutes were enacted, plaintiffs obtained relief that was sometimes essentially declaratory by suing for injunctive relief, or to quiet title to land, or to rescind a contract. When the declaratory judgment
+performs an analogous function, the case is justiciable and such relief is appropriate.
+Yet it is not possible to describe adequately all the instances in which these concerns will prevent declaratory relief. This type of relief is often useful in contract
+disputes. A good example is the dispute over liability-insurance coverage. The insured tortfeasor, the insurer, and the injured victim all need to know whether insurance covers the claim. When the insurer insists that it does not cover the claim and
+the others insist that it does, declaratory judgment is a good resolution.
+
+§ 27. Provide signposts along the way
+
+Advanced
+In published legal writing, find an example of grossly overlong paragraphs.
+Suggest the natural points for additional paragraph breaks. If you belong to
+a writing group or class, bring a copy with your paragraph markings for
+each colleague.
+
+§ 27. Provide signposts along the way.
+Headings (see § 4) are signposts, of course, but you’ll also need textual
+signposts in all but the most elementary writing. If there are three issues
+you’re going to discuss, state them explicitly on page one. If there are four
+advantages to your recommended course of action, say so when introducing the list. And be specific: don’t say that there are “several” advantages.
+If there are four, say so. This shows that you’ve thought through the
+problem.
+Consider the following paragraph:
+Although stock-appreciation rights, including alternative settlements,
+can solve substantial problems encountered by corporate officers in realizing the value of their stock options, this solution also imposes costs on the
+corporation. Most obviously, alternative settlements result in a cash outflow from the corporation rather than the cash inflow that results from
+the exercise of an option. Alternative settlements also result in charges to
+corporate earnings—charges not required for ordinary stock options. All
+that is required for ordinary stock options is a disclosure of the options and
+balance-sheet charges against retained earnings when they are exercised.
+
+That paragraph is difficult to wade through—unnecessarily so. Consider
+how helpful some simple signposts are:
+Although stock-appreciation rights, including alternative settlements,
+can solve substantial problems encountered by corporate officers in realizing the value of their stock options, this solution also imposes costs on the
+corporation in two ways. First, alternative settlements result in a cash outflow from the corporation rather than the cash inflow that results from the
+exercise of an option. Second, alternative settlements result in charges to
+corporate earnings—charges not required for ordinary stock options. All
+that is required for ordinary stock options is a disclosure of the options and
+balance-sheet charges against retained earnings when they are exercised.
+
+Adding five words makes quite a difference. Three other words got deleted—so the net increase was only two.
+Take another example. Most readers will find it unsettling to read, at
+the bottom of page one, “The examiner’s reasoning was flawed”—followed by a long paragraph introduced by the words, “In the first place . . . .”
+Of the two most obvious cures, the better one would be to write, “The
+examiner’s reasoning was flawed for three reasons”—followed by a bulleted list (see § 43) succinctly introducing those reasons before you embark on a full explanation. The second-best cure would be to omit the
+bulleted list while mentioning that there are three reasons. But merely to
+refer vaguely to “several reasons” isn’t really a cure at all. Phrases like that
+one often induce anxiety. How many reasons are there, after all?
+
+75
+
+76
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Good signposts are especially important when the writing is doublespaced. In single-spaced text, the paragraphs tend to be compact, but in
+double-spaced text the related sentences are more spread out. Page breaks
+come more frequently. And because much legal writing has to be doublespaced (as in briefs), signposts take on a special significance.
+
+Exercises
+Basic
+Find a piece of published legal writing—such as a book chapter, a judicial
+opinion, or a law-review article—in which the writer uses signposts effectively. Photocopy a section that illustrates the signposts and highlight them.
+If you’re part of a writing group or class, bring a highlighted copy for each
+colleague.
+Intermediate
+Find a piece of published legal writing—such as a book chapter, a judicial
+opinion, or a law-review article—in which the writer omits signposts where
+they’re needed. Photocopy a section that illustrates the lack of signposts,
+and then edit the page by hand to supply them. If you’re part of a writing
+group or class, bring a copy for each colleague.
+Advanced
+One of your coworkers, in a hurry to leave for a two-week vacation, has
+come to you for help with a memo that needs to go out immediately. She
+leaves it with you. Although you don’t know much about the subject—and
+don’t know Ezra Bander, the recipient—do your best to rewrite the memo
+to clarify how many items your colleague is attaching.
+To: Ezra Bander
+From: [Your colleague’s name]
+Subject: Group Annuity Policies
+Date: March 15, 2000
+Attached are two photocopies of the policy files for five of the six group annuity contracts the N.Y. examiners selected for further review. To be as responsive as possible to the examiners’ request, we have attached the applicable
+Administration section’s complete file for each client relating to the contracts in question (other than FSR (GA-8192)). For FSR we have attached the
+Contract section’s correspondence file since it is the most complete source of
+client information. Please note that for the GIC files (on page 1 of the list
+attached to your request), we consider certain pricing information to be proprietary and confidential. Therefore, we have added a Request for Confidential Treatment to the applicable portions of these files. We discovered that
+the jurisdiction for one of the contracts the examiners selected (GA-8180 Purgon) is actually Massachusetts. Please let us know if there is another contract you want to review. Due to the complexity of the SBCD Communications file, we created a timeline to facilitate the examiners’ review (which
+was created solely to help the examiners follow the file). We are unable to
+send the original policy files since we have ongoing relationships with these
+clients. However, we have certified to N.Y. (see attachment) that we have copied the files they requested. Also, attached to each of the five files are all related state filing materials, including any prefilings under Circular Letter
+64-1, the submission packages to the Dept. of forms, any correspondence
+
+§ 28. Unclutter text by moving citations into footnotes
+with the Dept., and approvals from the Dept. if received. The files have been
+reviewed by the business area and appropriate legal counsel.
+If you have any questions, please call me.
+
+§ 28. Unclutter the text by moving citations into footnotes.
+Do you remember when you first started reading law? You were probably
+reading a judicial opinion, and surely among the most irksome things
+about the experience was encountering all the citations in the text. For
+beginning legal readers, the prose is quite jarring—as if you were driving
+down a highway filled with speed bumps.
+These thought-interrupters were born of a technologically impoverished world. Originally, lawyers used scriveners who interspersed authorities in their notes. Then, in the 1880s, typewriters became popular, and it
+was all but impossible to put citations in footnotes. That’s why citations
+have traditionally appeared in the text. They were there in 1800, they
+were there in 1900, and they were still there in 1975. It had become a
+hardened convention.
+Meanwhile, of course, the number of cases being cited in legal writing
+erupted during the years leading up to 1975. And by the turn of the 21st
+century, things had gotten even worse. With computer research and the
+proliferation of caselaw, it has become easier than ever to find several
+cases to support virtually every sentence.
+So over time, the pages of judicial opinions, briefs, and memos have
+become increasingly cluttered. Some have become unreadable. Others are
+readable only by those mentally and emotionally hardy enough to cut
+through the underbrush.
+If citations plague readers, though, they plague writers every bit as
+much. That is, when you put citations within and between sentences,
+it’s hard to come up with shapely paragraphs. The connections between
+consecutive sentences get weaker. But what is worse than that, legal writers often intend a single sentence, followed by a string citation with parentheticals, to stand for a paragraph. After all, it fills up a third or even half
+of the page. How would such a paragraph fare with a fourth-grade teacher?
+It would flunk.
+In short, it doesn’t really matter whether readers can negotiate their
+way through eddies of citations—because, on the whole, writers can’t.
+Reference notes can cure these ills. That is, put citations—and generally only citations—in footnotes. And write in such a way that no reader
+would ever have to look at your footnotes to know what important authorities you’re relying on. If you’re quoting an opinion, you should—in the
+text—name the court you’re quoting, the year in which it wrote, and (if
+necessary) the name of the case. Those things should be part of your story
+line. Just get the numbers (that is, the volume, reporter, and page references) out of the way.
+If footnoting your citations seems like such a revolutionary idea, ask
+yourself why you’ve never seen a biography that reads like this:
+
+77
+
+78
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Holmes was ready for the final charge. His intellectual powers intact (Interview by Felix Frankfurter with Harold Laski, 23 Mar. 1938, at 45, unpublished manuscript on file with the author), he organized his work efficiently
+so that little time was wasted (3 Holmes Diary at 275, Langdell Law Library
+Manuscript No. 123-44-337; Holmes letter to Isabel Curtain, 24 June 1923,
+Langdell Law Library Manuscript No. 123-44-599). He volunteered less often to relieve others of their caseload (Holmes court memo, 24 July 1923,
+at 4, Library of Congress Rare Book Room Doc. No. 1923-AAC-Holmes494), and he sometimes had to be reassured of his usefulness (Brandeis letter
+to Felix Frankfurter, 3 Mar. 1923, Brandeis Univ. Manuscript Collection
+Doc. No. 23-3-3-BF). His doctor gave him a clean bill of health (Mass. Archives Doc. No. 23-47899-32, at 1), told him his heart was “a good pump”
+(Holmes letter to Letitia Fontaine, 25 June 1923, at 2, Langdell Law Library
+Manuscript No. 123-44-651), and told him that very few men of Holmes’s
+age were “as well off as he was” (id.)—to which Holmes drily replied that
+“most of them are dead” (Memo of Dr. Theobald Marmor, 26 June 1923, at
+2, Morgan Library Collection, copy on file with the author). But he was
+pleased that the “main machinery” was “in good running order” (Holmes
+letter to Letitia Fontaine, 25 June 1923, at 1, Langdell Law Library Manuscript No. 123-44-651), and he frequently felt perky enough to get out of
+the carriage partway home from court and walk the remaining blocks with
+Brandeis (Brandeis letter to Clare Eustacia Bodnar, 22 July 1923, Brandeis
+Univ. Manuscript Collection Doc. No. 23-7-22-BCEBB).
+
+No self-respecting historian would write that way. But brief-writers
+commonly do something very much like it:
+Agency decisions are entitled to the greatest weight and to a presumption
+of validity, when the decision is viewed in the light most favorable to the
+agency. Baltimore Lutheran High Sch. Ass’n v. Employment Security Admin., 302 Md. 649, 662–63, 490 A.2d 701, 708 (1985); Board of Educ. of
+Montgomery County v. Paynter, 303 Md. 22, 40, 491 A.2d 1186, 1195 (1985);
+Nationwide Mut. Ins. Co. v. Insurance Comm’r, 67 Md. App. 727, 737, 509
+A.2d 719, 724, cert. denied, 307 Md. 433, 514 A.2d 1211 (1986); Bulluck v.
+Pelham Wood Apartments, 283 Md. 505, 513, 390 A.2d 1119, 1124 (1978).
+Thus, the reviewing court will not substitute its judgment for that of the
+agency when the issue is fairly debatable and the record contains substantial evidence to support the administrative decision. Howard County v.
+Dorsey, 45 Md. App. 692, 700, 416 A.2d 23, 27 (1980); Mayor and Aldermen
+of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395–96,
+396 A.2d 1080, 1087–88 (1979); Cason v. Board of County Comm’rs for
+Prince George’s County, 261 Md. 699, 707, 276 A.2d 661, 665 (1971); Germenko v. County Board of Appeals of Baltimore County, 257 Md. 706, 711,
+264 A.2d 825, 828 (1970); Bonnie View Country Club, Inc. v. Glass, 242
+Md. 46, 52, 217 A.2d 647, 651 (1966). The court may substitute its judgment
+only as to an error made on an issue of law. State Election Board v. Billhimer, 314 Md. 46, 59, 548 A.2d 819, 826 (1988), cert. denied, 490 U.S. 1007,
+109 S.Ct. 1644, 104 L.Ed.2d 159 (1989); Gray v. Anne Arundel Co., 73 Md.
+App. 301, 308, 533 A.2d 1325, 1329 (1987).
+
+That’s a fairly serious example of excessive citations, but it’s actually
+mild compared with what writers do when coupling parentheticals with
+
+§ 28. Unclutter text by moving citations into footnotes
+
+the citations. Even if you have fewer citations, the reading becomes significantly worse because it’s harder to know what you need to read and
+what you can skip:
+To state a claim under Rule 10b-5, a complaint must allege that the defendant falsely represented or omitted to disclose a material fact in connection with the purchase or sale of a security with the intent to deceive or
+defraud. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47
+L.Ed.2d 668 (1976). A party’s specific promise to perform a particular act in
+the future, while secretly intending not to perform that act or knowing that
+the act could not be carried out, may violate § 10(b) and Rule 10b-5 if the
+promise is part of the consideration for the transfer of securities. See, e.g.,
+Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir. 1986) (citing McGrath v. Zenith
+Radio Corp., 651 F.2d 458 (7th Cir.), cert. denied, 454 U.S. 835, 102 S.Ct.
+136, 70 L.Ed.2d 114 (1981)); Wilsmann v. Upjohn Co., 775 F.2d 713, 719 (6th
+Cir. 1985) (concluding that plaintiff’s securities-fraud claim against acquiring corporation was in connection with defendant’s purchase of plaintiff’s
+stock where plaintiff alleged that part of consideration for sale of stock was
+false promise by acquiring corporation concerning future payments for
+stock plaintiff received in acquired corporation but holding that evidence of
+fraud was insufficient to support jury’s verdict), cert. denied, 476 U.S. 1171,
+106 S.Ct. 2893, 90 L.Ed.2d 980 (1986). But see Hunt v. Robinson, 852 F.2d
+786, 787 (4th Cir. 1988) (holding that defendant’s failure to tender shares in
+new company in return for plaintiff’s employment did not state securitiesfraud claim because the defendant’s alleged misrepresentation concerned its
+tender of shares as required by the terms of the employment contract, not
+the actual sale of stock). The failure to perform a promise, however, does
+not constitute fraud if the promise was made with the good-faith expectation that it would be performed. See Luce, 802 F.2d at 56.
+
+By the way, double-spacing aggravates this problem in a virulent way
+(see § 42).
+Even if you strip out the citations, something the careful reader will
+have to do anyway (by mental contortion), you end up with unimpressive,
+wooden prose:
+To state a claim under Rule 10b-5, a complaint must allege that the defendant falsely represented or omitted to disclose a material fact in connection with the purchase or sale of a security with the intent to deceive or
+defraud. A party’s specific promise to perform a particular act in the future,
+while secretly intending not to perform that act or knowing that the act
+could not be carried out, may violate § 10(b) and Rule 10b-5 if the promise
+is part of the consideration for the transfer of securities. The failure to perform a promise, however, does not constitute fraud if the promise was made
+with the good-faith expectation that it would be performed.
+
+Now it’s possible to see what you’re actually saying. You can more
+easily focus on style. So you edit the paragraph:
+To state a claim under Rule 10b-5, a complaint must allege that the defendant—intending to deceive or defraud—falsely represented or failed to
+disclose a material fact about the purchase or sale of a security. A party’s
+
+79
+
+80
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+specific promise to do something in the future, while secretly intending not
+to do it or knowing that it can’t be done, may violate Rule 10b-5 if the
+promise is part of the consideration for the transfer. But not performing
+the promise isn’t fraud if the promisor expected in good faith to be able
+to perform.
+
+The revised passage isn’t a work of art. But it’s much closer than the
+original—and probably as artful as most discussions of Rule 10b-5 ever
+could be.
+Go back and look at the original 10b-5 passage. Look at how much
+more difficult it is to tease out the essential ideas. In your imagination,
+try double-spacing it, so that you fill up the entire page. Now imagine
+page after page of this. You get the idea.
+In sum, if you put citations into footnotes, while still naming in the
+text the important authorities you’re relying on, your prose will improve.
+Here are ten advantages to using citational footnotes:
+1. You’re able to strip down an argument and focus on what you’re
+saying.
+2. You’re able to write better, more fully developed paragraphs.
+3. Meanwhile, your paragraphs will be significantly shorter than they
+would be with the citations in the text.
+4. You’re able to connect your sentences smoothly, with simple transitional words. When citations appear between sentences, writers tend
+to repeat several words that aren’t necessary once the sentences are
+put together without citational interruptions.
+5. You’re able to use greater variety in sentence patterns, especially by
+sometimes using subordinate clauses.
+6. You can’t camouflage poor writing—or poor thinking—in a flurry of
+citations. And you won’t be tempted to bury important parts of your
+analysis in parentheticals.
+7. The long-decried string citation becomes relatively harmless. (I don’t
+favor string citations, but I’m not adamantly opposed to them either—not if they’re out of the way.)
+8. You’ll find it necessary to discuss important cases contextually, as
+opposed to merely relying on citations without ever discussing the
+cases you cite. You’ll pay more respect to important precedent by
+actually discussing it instead of simply identifying it in a “citation
+sentence,” which isn’t really a sentence at all.
+9. You give emphasis where it’s due. That is, the court and the case and
+the holding are often what matters (“Three years ago in Gandy, this
+Court held . . .”), but the numbers in a citation never are (“925 S.W.2d
+696, 698”—etc.). Numbers, when sprinkled through the main text,
+tend to distract.
+10. Your pages end up looking significantly cleaner.
+Many brief-writers and many judges have been persuaded by these points.
+They’ve begun using citational footnotes because they want to be better
+writers.
+
+§ 28. Unclutter text by moving citations into footnotes
+
+Seemingly the only argument against footnoting citations is the odd
+accusation that doing so diminishes the importance of precedent. No one
+ever leveled this accusation against Judge John Minor Wisdom or Judge
+Alvin Rubin, two of the most respected Fifth Circuit judges who, from
+about 1983 to the end of their careers, footnoted all their citations. As
+Judge Wisdom put it in a 1993 article: “Citations belong in a footnote:
+even one full citation such as 494 U.S. 407, 110 S. Ct. 1212, 108 L. Ed. 2d
+347 (1990), breaks the thought; two, three, or more in one massive paragraph are an abomination.”1
+Until the advent of personal computers in the 1980s, law offices had no
+choice. Citations had to go into the text. Only professional printers had a
+realistic option of putting citations in footnotes. The computer has liberated us from this technological constraint.
+Within a generation, the citational footnote may well be the norm in
+both judicial opinions and briefs. It will probably come to be viewed as
+one of the greatest improvements in legal writing.
+
+Exercises
+Basic
+Look up at least three cases listed below, all of which put citations in footnotes. Identify the stylistic differences you notice between these cases and
+other cases (in the same volume) having citations in the text.
+●
+
+Alizadeh v. Safeway Stores, Inc., 802 F.2d 111 (5th Cir. 1986).
+
+●
+
+Alamo Rent A Car, Inc. v. Schulman, 897 P.2d 405 (Wash. Ct. App. 1995).
+
+●
+
+Warden v. Hoar Constr. Co., 507 S.E.2d 428 (Ga. 1998).
+
+●
+
+KPMG Peat Marwick v. Harrison County Fin. Corp., 988 S.W.2d 746 (Tex. 1999).
+
+●
+
+M.P.M. Enters. v. Gilbert, 731 A.2d 790 (Del. 1999).
+
+●
+
+Aleck v. Delvo Plastics, Inc., 972 P.2d 988 (Alaska 1999).
+
+●
+
+State v. Martin, 975 P.2d 1020 (Wash. 1999) (en banc).
+
+●
+
+In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999).
+
+●
+
+Williams v. Kimes, 996 S.W.2d 43 (Mo. 1999) (en banc).
+
+●
+
+United States v. Parsee, 178 F.3d 374 (5th Cir. 1999).
+
+●
+
+McGray Constr. Co. v. Office of Workers Compensation Programs, 181 F.3d 1008
+(9th Cir. 1999).
+
+●
+
+Minneapolis Public Housing Auth. v. Lor, 591 N.W.2d 700 (Minn. 1999).
+
+Intermediate
+Rewrite the following passages to put all citations in footnotes and otherwise improve the style:
+●
+
+Having initially remanded the question of attorney’s fees to the Circuit Court following its decision in Greenwald Cassell Assocs., Inc. v. Department of Commerce,
+15 Va. App. 236, 421 S.E.2d 903 (1992), the Court of Appeals’ subsequent review of
+that remand in Greenwald Cassell Assocs., Inc. v. Guffey, No. 2190-93-4, 1994 Va.
+
+§ 28 1. John Minor Wisdom, How I Write, 4 Scribes J. Legal Writing 83, 86 (1993).
+
+81
+
+82
+
+Part Two. Principles for Analytical and Persuasive Writing
+App. lexis 649 (Va. Ct. App. Nov. 8, 1994), provides an ample basis to determine
+the appropriateness and thoroughness of the appellate review conducted.
+●
+
+In certain narrow exceptions, a court may consider patents and publications issued
+after the filing date. In re Koller, 613 F.2d 819, 824 (C.C.P.A. 1980). For example, in
+deciding an appeal from the denial of an application, the Federal Circuit relied upon
+an article published in 1988, five years after an application’s filing date, to conclude
+that the level of skill in the art in 1983 was not sufficiently developed to enable a
+scientist to practice the invention claimed. In re Wright, 999 F.2d 1557, 1562 (Fed.
+Cir. 1993). Similarly, in Gould v. Quigg, 822 F.2d 1074 (Fed. Cir. 1987), the same
+court upheld a decision to permit the testimony of an expert who relied on a subsequent publication to opine on the state of the art as of the applicant’s filing date.
+Id. at 1079. The publication was not offered to supplement the knowledge of one
+skilled in the art at the time to render it enabling. Id. In addition, later publications
+have been used by the Court of Customs and Patent Appeals numerous times as
+evidence that, as of the filing date, a parameter absent from the claims was or was
+not critical, Application of Rainer, 305 F.2d 505, 507 n.3 (C.C.P.A. 1962), that a
+specification was inaccurate, Application of Marzocchi, 439 F.2d 220, 223 n.4
+(C.C.P.A. 1971), that the invention was inoperative or lacked utility, Application of
+Langer, 503 F.2d 1380, 1391 (C.C.P.A. 1974), that a claim was indefinite, Application
+of Glass, 492 F.2d 1228, 1232 n.6 (C.C.P.A. 1974), and that characteristics of priorart products were known, Application of Wilson, 311 F.2d 266 (C.C.P.A. 1962).
+Nonetheless, none of these exceptions “established a precedent for permitting use
+of a later existing state of the art in determining enablement under 35 U.S.C.
+§ 112.” Koller, 613 F.2d at 824 n.5.
+
+Advanced
+Rewrite the following passage, putting all citations in footnotes. Improve
+the flow of the text. Decide what case names you might want to weave into
+your narrative—and how you can best accomplish this.
+III. Attorney’s Fees
+In reality, Ohio law is in conflict as to whether attorney fees may be claimed
+as compensatory damages (which would provide the foundation for punitive damages). Of course, Ohio law has long permitted recovery of attorney fees, even in
+the absence of statutory authorization, where punitive damages are proper and
+first awarded. Roberts v. Mason, 10 Ohio St. 277 (1859); Columbus Finance v.
+Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975); Zoppo v. Homestead
+Ins. Co., 71 Ohio St. 3d 552, 558, 644 N.E.2d 397, 402 (1994). However, the important question for our purposes is whether obtaining punitive damages is the only
+way in which to recover attorney fees, or if attorney fees can be recovered “before”
+punitive damages and used as the requisite compensatory foundation (actual damages) necessary for recovery of punitive damages.
+Several cases hold that attorney fees cannot be recovered unless punitive damages are first awarded. See Olbrich v. Shelby Mut. Ins. Co., 469 N.E.2d 892 (Ohio
+App. 1983); Ali v. Jefferson Ins. Co., 5 Ohio App. 3d 105, 449 N.E.2d 495 (1982);
+Stuart v. Nat’l Indemn. Co., 7 Ohio App. 3d 63, 454 N.E.2d 158 (1982); Convention Center Inn v. Dow Chemical Co., 484 N.E.2d 764 (Ohio Com. Pl. 1984).
+However, a close reading of the Ohio Supreme Court’s decision in Zoppo suggests
+that such a requirement might not be necessary:
+Attorney fees may be awarded as an element of compensatory damages
+where the jury finds that punitive damages are warranted. Columbus Finance, Inc. v. Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975).
+Zoppo, 71 Ohio St. 3d at 558.
+Furthermore, in the earlier decisions of Spadafore v. Blue Shield, 21 Ohio App.
+3d 21 (1985), an Ohio appellate court held that damages “flowing from” bad faith
+conduct may include:
+lost time at work and . . . mileage and other travel costs due to the additional [testimonial] examination which was held out of town. . . . An obvi-
+
+§ 29. Weave quotations deftly into your narrative
+ous loss to [the plaintiff ] was the cost of the lawsuit to enable recovery of
+his claim . . . .
+Id. Other courts have alluded to the possibility of litigation expenses and/or attorney fees as compensatory damages. See, e.g., LeForge v. Nationwide Mut. Ins. Co.,
+82 Ohio App. 3d 692 (1992) (“reasonable compensation for the . . . inconvenience
+caused by the denial of the insurance benefits”); Eastham v. Nationwide Mut. Ins.
+Co., 66 Ohio App. 3d 843 (1990) (“evidence of . . . costs in this case, including
+expenses incurred in collecting (on the coverage) attorney fees, lost interest . . .”);
+Motorists Mut. Ins. Co. v. Said, 63 Ohio St. 3d 690, 703–04 (1992) (Douglas, J.,
+dissenting) (“litigation expenses are primary compensatory damages in bad faith
+claim”) (overruled in part by the Zoppo decision).
+Moreover, in Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St. 3d 157, 648
+N.E.2d 488 (1995), the Ohio Supreme Court upheld a trial court’s award of attorney fees to the insureds who were forced to defend their right to coverage (against
+the insurance company) in a declaratory judgment action. The court acknowledged the “anomalous result” that might arise when an insured is required to
+defend his/her right to recover under an insurance policy, but cannot recover the
+damages incurred thereby. Brandenburg, 72 Ohio St. 3d at 160.
+
+§ 29. Weave quotations deftly into your narrative.
+Because our legal system relies on precedent, legal writers quote with
+great frequency. We quote from statutes, cases, treatises, law reviews, and
+dictionaries. We quote from depositions and from live testimony. Yet most
+of us quote poorly.
+Novices sometimes drop direct quotations into the text without any
+lead-in at all. They pepper their discussions with others’ language seemingly to avoid thinking about or coping with the problem of paraphrasing
+what someone else has said. This produces a disjointed, distracting style.
+A step beyond the novice is the intermediate writer who tries to incorporate quotations with stereotyped lead-ins such as these:
+The statute reads in pertinent part:
+The court stated as follows:
+● According to Federal Practice and Procedure:
+● As one noted authority has explained:
+● Black’s Law Dictionary states:
+● The witness testified to the following facts:
+●
+●
+
+These phrases are deadly. They’re enough to kill a good quotation.
+Then what, you may ask, are you to do? After all, those are the standard
+quotation introducers. The answer is that you should tailor the lead-in to
+the quotation. Say something specific. Assert something. Then let the
+quotation support what you’ve said. Good lead-ins resemble these:
+The statute specifies three conditions that a trustee must satisfy to be
+fully indemnified:
+● Because the plaintiff had not proved damages beyond those for breach
+of contract, the court held that the tort claim should have been dismissed:
+● In fact, as the court noted, not all written contracts have to be signed
+by both parties:
+●
+
+83
+
+84
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+The Central Airlines court recognized that the facts before it involved
+a lawyer who neither willfully nor negligently misled the opposing
+party:
+● The power to zone is a state power that has been statutorily delegated
+to the cities:
+● The court found that Nebraska’s export laws are stricter than its instate regulations:
+●
+
+By the way, is it acceptable to put a colon after a complete sentence? You
+bet.1 More writers ought to be doing it.
+If you follow this principle, your writing won’t contain boring passages
+like this one:
+Although the general rule is that the trial court has discretion concerning
+declaratory judgments, the court in Joseph v. City of Ranger, 188 S.W.2d
+1013 (Tex. Civ. App.—Eastland 1945, no writ), held that the Declaratory
+Judgment Act was never intended to permit the piecemeal adjudication of
+a pending case. In that case, the court held:
+We believe the court is not authorized to enter a declaratory judgment,
+unless the controversy between the parties thereto will be ended, or
+when such judgment will serve a useful purpose. In this case the declaratory judgment as entered by the court will not end the controversy, for
+the reason there are a number of other issues involved in the case that
+will have to be determined before a final judgment can be entered
+therein. It was never the purpose of the Declaratory Judgment Act to
+allow a case to be tried piecemeal. . . . There was no necessity for a declaratory judgment, and such judgment will serve no useful purpose. The
+parties were all before the court. They had joined issues upon all questions involved in the lawsuit. There was nothing to prevent the court
+from proceeding to trial upon all the issues and from rendering a final
+judgment in the case.
+Id. at 1014–15.
+
+Instead, you’ll brighten your writing with passages like the following one,
+in which the reader wants to see whether the lead-in is accurate:
+Although the general rule is that the trial court has discretion concerning
+declaratory judgments, the court in Joseph v. City of Ranger held that the
+Declaratory Judgment Act was never intended to permit courts to adjudicate cases bit by bit:
+[T]he court is not authorized to enter a declaratory judgment, unless the
+controversy between the parties thereto will be ended, or when such
+judgment will serve a useful purpose. . . . It was never the purpose of the
+Declaratory Judgment Act to allow a case to be tried piecemeal.
+
+But if the reader wants to test the writer’s accuracy, isn’t this a bad thing?
+No: it’s a way of getting the reader to focus on the quotation (as opposed
+§ 29 1. See Bryan A. Garner, A Dictionary of Modern American Usage 536–37 (1998); Wilson Follett,
+Modern American Usage 423–24 (1966); Bergen Evans & Cordelia Evans, A Dictionary of Contemporary
+American Usage 100 (1957).
+
+§ 30. Be forthright in dealing with counterarguments
+
+to embarking on it as a matter of faith). Notice also that in the passage
+just quoted, the lead-in ends emphatically and the phrase bit by bit ties in
+nicely to the quotation (piecemeal).
+If you consistently follow this principle, your writing—when it comes
+to quotations—will be markedly better than the vast bulk of what legal
+writers produce.
+
+Exercises
+Basic
+In the following passage, edit the lead-in to the quotation. Make the second
+sentence sharper and more informative. To do this, you’ll need to figure out
+(1) what the point of contrast is with the first sentence (that is, what the
+But is contrasting with), and (2) what the point of the quotation is. Keep
+your revised lead-in under 15 words.
+This Court held that Julia was entitled to damages for loss of consortium and
+affirmed that portion of the judgment. But the Court also held as follows:
+[A] claim for negligent infliction of mental anguish that is not based on
+the wrongful-death statute requires that the plaintiff prove that he or she
+was, among other things, located at or near the scene of the accident, and
+that the mental anguish resulted from a direct emotional impact upon the
+plaintiff from the sensory and contemporaneous observation of the incident, as contrasted with learning of the accident from others after the occurrence. Julia has not met either of these requirements and therefore
+may not recover for mental anguish.
+Thus, . . . .
+
+Intermediate
+In a single legal publication, find two examples of well-introduced quotations. Highlight them. Provide the full citation for your source. If you’re
+part of a writing group or class, bring a copy for each colleague.
+Advanced
+In a single legal publication, find two examples of poorly introduced quotations. Photocopy the pages containing the lead-in and the follow-up to each
+quotation, and edit each passage to supply a new lead-in that asserts something about the quoted material. Provide the full citation for your source. If
+you’re part of a writing group or class, bring a copy for each colleague.
+
+§ 30. Be forthright in dealing with counterarguments.
+Legal writers too often mar their arguments by ignoring the weaknesses,
+or seeming weaknesses, in them. Some writers blandly assume that dealing with these weaknesses is itself a sign of being weak. Others simply are
+so committed to their own arguments that they become blinded to their
+soft spots. Still others think that they should hold back until rebutting
+their opponents’ arguments. All these views give little or no credit to the
+reader’s intelligence—and they show ignorance of rhetorical principles
+and a surprising naiveté about argumentation.
+If you want to write convincingly, you should habitually ask yourself
+why the reader might arrive at a different conclusion from the one you’re
+urging. Think of the reader’s best objections to your point of view, and
+then answer those objections directly.
+
+85
+
+86
+
+Part Two. Principles for Analytical and Persuasive Writing
+
+Let’s assume that in one section you’ve made your main point. Then
+you’ll need to ask yourself, “Why would a judge decide against me?” Deal
+with any possible snags in your argument. That way, you’ll show yourself
+to be thorough and frank. Essentially, a well-constructed argument looks
+something like this:
+Legal premise
+Factual premise
+Conclusion
+Possible objection
+Answer to objection
+Another possible objection
+Answer to objection
+Further point in support
+Clincher
+
+An argument using this structure makes for convincing reading. And it’s
+hard to rebut.
+Take, for example, the impeachment proceedings of 1998–1999. If you
+had argued President Clinton’s position, you would have needed to concede that the President’s conduct was anything but exemplary. You’d
+simply say that it didn’t rise to the level of an impeachable offense. If you
+had argued Kenneth Starr’s position, you would have needed to concede
+that the constitutional threshold (“high crimes and misdemeanors”) is a
+high one, and that distasteful behavior in itself wouldn’t be enough. You’d
+urge that perjury and obstruction of justice—even if the subject is as personal as sex—did meet the threshold. Whichever position you might have
+argued, explicit recognition of the other side’s point would be crucial.
+Without it, you’d undermine your own credibility.
+In dealing with counterarguments, be sure that you don’t set out the
+opponent’s points at great length before supplying an answer. Your undercut needs to be swift and immediate. The poor strategy of highlighting the
+opponent’s argument is all too common.
+Try addressing the counterarguments in the middle part of each argument—not at the beginning and not at the end. Then knock each one
+down quickly.
+
+§ 30. Be forthright in dealing with counterarguments
+
+Exercises
+Basic
+Identify a judicial opinion that is written in such a way that the losing party
+would probably be satisfied that the court dealt fairly with the points it
+raised. If you’re part of a writing group or class, be prepared to explain why
+that is so.
+Intermediate
+Identify a newspaper editorial that does not deal squarely or fairly with
+counterarguments. If you’re part of a writing group or class, be prepared to
+(1) explain what the counterargument is, and (2) speculate about why the
+writer ignored the counterargument.
+Advanced
+Rewrite the editorial to make it more credible.
+
+87
+
+part three
+Principles Mainly for Legal Drafting
+
+The field known as “legal drafting” includes all the various
+types of documents that govern rights, duties, and liabilities in
+the future: contracts (everything from assignments to licensing
+agreements to warranties), wills, trusts, municipal ordinances,
+rules, regulations, and statutes. Lawyers commonly think of
+drafting as being more “technical” than other types of legal
+writing. Perhaps it is. It certainly differs from most other types
+of writing you might think of:
+● People will read it adversarially, so it’s important to be unmistakable.
+● It deals with future events.
+● It’s typically a committee product—over time.
+● It’s boring to read (and the writer doesn’t even care about
+being lively).
+● It’s rarely read straight through, so it needs to be easy to
+consult.
+Although some drafters’ habits migrate to other areas—
+where they typically don’t belong—the problems discussed in
+§§ 31–40 are predominantly those of transactional and legislative drafters.
+Yet every lawyer occasionally gets involved in legal drafting
+of some sort—even if it’s only a settlement agreement—and
+every lawyer should become familiar with these principles.
+
+§ 31. Draft for an ordinary reader, not for a mythical judge who
+might someday review the document.
+Today the prevailing attitude, unfortunately, is that lawyers should draft
+contracts, legal instruments, and statutes with the judicial reader in mind.
+Draft for the legal expert, the thinking goes, not for the ordinary reader.
+But this approach is wrongheaded for at least five reasons. First, lawyers
+who draft for judges tend to adopt a highly legalistic style, since judges
+have legal training. Yet because these lawyers aren’t litigators, they almost
+never interact with judges. They don’t know how much most judges detest
+legalese. Second, judges never see most drafted documents—only a small
+fraction of 1% ever get litigated. Third, this approach contemplates only
+the disaster that might occur if litigation erupts. It does nothing to prevent
+the litigation from arising. In other words, the approach focuses exclusively on the back-end users, with no concern for the front-end users who
+must administer and abide by the document. Fourth, the further removed
+a document is from plain English, the more likely the parties are to ignore
+it in their everyday conduct. It won’t effectively govern their relationship.
+Fifth, the further removed a document is from plain English, the more
+you’ll get divergent views on its meaning—even from judges.
+Finally, you might be interested to know that there is nothing newfangled about this approach. It’s what the drafting experts have been saying
+for a long time, whether the document is a contract or a statute. This list
+is only a sampling:
+1842: “[Most legal documents can be written] in the common popular
+structure of plain English.”1
+● 1887: “[Good drafting] says in the plainest language, with the simplest, fewest, and fittest words, precisely what it means.”2
+● 1902: “Latin words and, where possible without a sacrifice of accuracy,
+technical phraseology should be avoided; the word best adapted to
+express a thought in ordinary composition will generally be found to
+be the best that can be used . . . .”3
+● 1938: “The simplest English is the best for legislation. Sentences
+should be short. Long words should be avoided. Do not use one word
+more than is necessary to make the meaning clear. The draftsman
+should bear in mind that his Act is supposed to be read and understood
+by the plain man.”4
+● 1976: “[M]ore often than might be expected, [the lawyer’s] . . . duty to
+be complete and exact will require only short and ordinary words, and
+short, or at least simple, sentences. The language of lawyers need not,
+as Coode remarked of the statutes, be ‘intricate and barbarous.’”5
+●
+
+§ 31 1. George Coode, On Legislative Expression (1842).
+2. J.G. Mackay, Introduction to an Essay on the Art of Legal Composition Commonly Called Drafting, 3 Law Q. Rev. 326, 326 (1887).
+3. Lord Thring, Practical Legislation 81 (1902).
+4. Alison Russell, Legislative Drafting and Forms 12 (4th ed. 1938).
+5. J.K. Aitken, The Elements of Drafting 55–56 (5th ed. 1976).
+
+91
+
+92
+
+Part Three. Principles for Legal Drafting
+
+1988: “The most competent version of language and legal drafting . . .
+is that version which enables the message to be grasped readily, without difficulty and confusion. This is none other than plain language—
+language which gets its message across in a straightforward, unentangled way, that lets the message stand out clearly and does not enshroud
+or enmesh it in convolution or prolixity.”6
+● 1996: “From the draftsman’s point of view, complexity intensifies the
+risk of error in the drafting and the risk of different interpretations
+in the reading: both chum for litigators. The commercial attorney,
+therefore, must work to achieve a result as simple as possible.”7
+● 1997: “[P]lain language and precision are complementary goals, not
+antagonists. The choice between clarity and precision is usually a
+false choice. . . . If anything, plain language is more precise than traditional legal writing because it uncovers the ambiguities and errors
+that traditional style, with all its excesses, tends to hide.”8
+●
+
+There’s a related point here. Drafters often lapse into the poor habit of
+addressing their provisions directly to someone other than the reader for
+whom the document is ostensibly written. Take, for example, this provision in a fee agreement, which, though directed to a prospective client,
+certainly wasn’t written with the client in mind:
+Client understands that any estimates provided by the Firm of the magnitude of the expenses that will be required at certain stages of any litigation
+asserting a cause of action are not precise, and that the kinds and amounts
+of expenses required are ultimately a function of many conditions over
+which the Firm has little or no control, particularly the extent to which the
+opposition files pretrial motions and engages in its own discovery requests,
+whether in the nature of interrogatories, depositions, requests for production, or requests for admission, or any other type of discovery allowed by
+the rules of procedure in the forum in which the dispute is pending.
+
+That’s directed seemingly to the fee-dispute committee of the local bar, or
+perhaps the grievance committee. And for most clients, it’s a major turnoff. A leaner version informs the client more effectively because the point
+is clearer:
+The firm’s estimates are just that: estimates. Conditions outside the firm’s
+control, especially the other side’s pretrial motions and discovery requests,
+may raise or lower expenses.
+
+Interestingly, lawyer groups—dozens of them—that have compared those
+two passages have said that if they were sitting on a grievance committee,
+they would be much less favorably disposed to the lawyer who wrote the
+first version.
+6. Robert D. Eagleson, “Efficiency in Legal Drafting,” in Essays on Legislative Drafting 13, 13 (David
+St. Kelly ed., 1988).
+7. Peter Siviglia, Writing Contracts 73 (1996).
+8. Joseph Kimble, Writing for Dollars, Writing to Please, 6 Scribes J. Legal Writing 1, 2 (1996–1997).
+
+§ 32. Organize in order of descending importance
+
+Write for your immediate readers—the ones to whom you’re directing
+your communications. Don’t write for some decision maker who probably
+won’t see, let alone interpret, the document. If you write well for the frontend users, you’re less likely to have trouble down the line.
+
+Exercises
+Basic
+Revise the following sentences so that they aren’t so obviously directed to
+the judicial interpreter:
+●
+
+Nothing expressed or implied in this Agreement is intended or shall be construed
+to give to any person or entity, other than the parties and the Buyer’s permitted
+assignees, any rights or remedies under or by reason of this Agreement.
+
+●
+
+The Corporation and the Executive explicitly agree that this Agreement has been
+negotiated by each at arm’s length and that legal counsel for both parties have had
+a full and fair opportunity to review the Agreement so that any court will fully
+enforce it as written.
+
+●
+
+The employee explicitly acknowledges and agrees that the agreement not to compete, set forth above, is ancillary to an otherwise enforceable agreement and is supported by independent, valuable consideration as required by Texas Business and
+Commerce Code § 15.50. The employee further agrees that the limitations as to
+time, geographical area, and scope of activity to be restrained are reasonable and do
+not impose any greater restraint than is reasonably necessary to protect the goodwill
+and other business interests of the employer.
+
+Intermediate
+In a formbook, identify a legal document that no one apart from an expert
+would likely understand. If you’re part of a writing group or class, be prepared to discuss (1) the extent to which people other than experts might
+need to be able to understand the document, and (2) at least three characteristics of the document that make it particularly difficult.
+Advanced
+Revise one or two provisions (about 200 words total) from the document
+you identified for the Intermediate exercise. Produce before-and-after versions. If you’re part of a writing group or class, bring a copy for each colleague.
+
+§ 32. Organize provisions in order of descending importance.
+Experienced legal readers will expect you to lead with your most important points and then arrange other points in order of descending importance. This principle might seem so obvious as to be unnecessary. Yet
+some legal drafters habitually bury critical information.
+Remember that plain English is concerned with readers—what they
+need to know and when they need to know it. You can’t be content to let
+readers fend for themselves. You’ll need to organize documents so logically and clearly that future reference to any specific point is easy. Although the nature of the particular document will influence the structure,
+the following guidelines generally enhance readability:
+
+93
+
+94
+
+Part Three. Principles for Legal Drafting
+
+Put the more important before the less important.
+Put the broadly applicable before the narrowly applicable.
+● Put rules before exceptions.
+●
+●
+
+If you’re drafting a contract, the first substantive provisions should be the
+parties’ main obligations to each other. And if you’re drafting a statute,
+put the main requirements up front—everything else flows from them.
+Look at the following example—a statute dealing with discriminatory
+housing practices. As you read it, try to figure out the drafter’s method of
+organizing the material:
+Boston Fair Housing Commission—Title VIII—Enforcement, Penalties
+AN ACT empowering the Boston Fair Housing Commission to impose civil
+penalties and enforce by judicial power the provisions of Title VIII.
+Be it enacted by the Senate and House of Representatives in General Court
+assembled, and by the authority of the same, as follows:
+SECTION 1. The following words used in this Act shall have the following meanings:
+“Aggrieved person” means any person who claims to have been injured by a
+discriminatory housing practice or believes such person will be injured by
+a discriminatory housing practice that is about to occur.
+“Commission” means the Boston Fair Housing Commission.
+“Housing accommodations” means any building, structure or portion
+thereof which is used or occupied or is intended, arranged or designed to be
+used or occupied as the home, residence or sleeping place of one or more
+human beings and any vacant land which is offered for sale or lease for the
+construction or location thereon of any such building, structure or portion
+thereof.
+“Person” includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers,
+and the commonwealth and all political subdivisions and boards or commissions thereof.
+“Source of income” shall not include income derived from criminal activity.
+SECTION 2. Subject to the provisions of section five, classes protected by
+this Act shall include race, color, religious creed, marital status, handicap,
+military status, children, national origin, sex, age, ancestry, sexual orientation and source of income.
+SECTION 3. All housing accommodations in the city of Boston shall be
+subject to this Act, except as hereinafter provided. Nothing in this Act shall
+apply to housing accommodations which are specifically exempted from
+coverage by this Act, Title VIII of the Civil Rights Act of 1988, as amended,
+42 U.S.C. Sections 3601 et seq. or chapter one hundred and fifty-one B of
+the General Laws. Nothing in this Act shall apply to the leasing or rental
+to two or fewer roomers, boarders, or lodgers who rent a unit in a licensed
+lodging house.
+SECTION 4. Nothing in this Act shall prohibit a religious organization,
+association or society, or any nonprofit institution or organization operated,
+supervised, or controlled by or in conjunction with a religious organization,
+association, or society, from limiting the sale, rental or occupancy of housing accommodations which it owns or operates for other than a commercial
+purpose to persons of the same religion, or from giving preference to such
+
+§ 32. Organize in order of descending importance
+
+persons, unless membership in such religion is restricted on account of race,
+color, marital status, handicap, military status, children, national origin,
+sex, age, ancestry, sexual orientation or source of income.
+SECTION 5. In the city of Boston, discriminatory housing practices are prohibited; provided, however, that no practice shall be prohibited hereunder
+unless such practice is also prohibited by the federal Fair Housing Act or
+chapter one hundred and fifty-one B of the General Laws.
+SECTION 6. Any person who violates the provisions of this Act as to discriminatory housing practices shall, pursuant to the provisions of section
+seven, be subject to orders, temporary, equitable and legal, including compensatory damages, punitive damages or civil penalties and attorney’s fees
+and costs.
+
+Lawyers who read that statute invariably say the same thing: § 5 should
+be moved to the fore. Once you make this change—as well as using headings and fixing various sentence-level problems—the statute is vastly improved:
+Boston Fair Housing Commission—Title VIII—Enforcement, Penalties
+This Act empowers the Boston Fair Housing Commission to impose civil
+penalties for discriminatory housing practices and to enforce the judicial
+power of Title VIII.
+The Legislature enacts the following:
+1. Definitions.
+1.1 “Housing accommodation” means any building, structure, or portion of a building or structure that is used or occupied or is intended, arranged, or designed to be used or occupied as the home,
+residence, or sleeping place of one or more human beings, including
+any vacant land that is offered for sale or lease for the construction
+or location of such a building or structure.
+1.2 “Person” includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, and receivers, as well as the commonwealth and all political
+subdivisions and boards or commissions of the commonwealth.
+1.3 “Source of income” does not include income derived from criminal
+activity.
+2. Discriminatory Practices Prohibited. In the city of Boston, discriminatory housing practices are prohibited to the greatest extent that they are
+prohibited by the federal Fair Housing Act or Chapter 151(B) of the General Laws. Classes protected by this Act include those based on race,
+color, religious creed, marital status, handicap, military status, parental
+status, national origin, sex, age, ancestry, sexual orientation, and source
+of income.
+3. Scope of Prohibition; Exemptions. All housing accommodations in the
+city of Boston are subject to this Act. But nothing in the Act applies to
+housing accommodations that are specifically exempted from coverage
+by 42 USC §§ 3601 et seq. or Chapter 151(B) of the General Laws. Nothing in the Act applies to the leasing or rental to two or fewer roomers,
+boarders, or lodgers who rent a unit in a licensed lodging house.
+4. Religious and Nonprofit Organizations. Nothing in this Act prohibits a
+religious organization or any nonprofit organization operated or super-
+
+95
+
+96
+
+Part Three. Principles for Legal Drafting
+
+vised by a religious organization from limiting the sale, rental, or occupancy of housing accommodations that it owns or operates for other
+than a commercial purpose to persons of the same religion, or from giving preference to those persons, unless membership in the religion is
+restricted on account of race, color, marital status, handicap, military
+status, parental status, national origin, sex, age, ancestry, sexual orientation, or source of income.
+5. Penalties. Any person who violates this Act is subject to court orders—
+temporary, equitable, and legal—including compensatory damages, punitive damages, and civil penalties, as well as attorney’s fees and costs.
+
+So weigh the relative importance of the ideas you’re writing about—
+especially their importance to an intelligent reader. Then let your document reflect sensible judgment calls.
+One last thing about organizing legal documents. Try to make whatever you write—and every part within it—self-contained. Your readers
+shouldn’t have to remember other documents or sections, or flip back to
+them, to make sense of what you’re saying.
+
+Exercises
+Basic
+Reorganize the following paragraph from a commitment letter for the purchase of unimproved land. (A commitment letter is a lender’s written offer
+to grant a mortgage loan.) Group the sentences according to whether they
+(1) specify the purpose of the letter, (2) state a buyer commitment, or (3)
+clarify the limitations of the letter. Then rewrite the passage in four paragraphs. Create a new introductory paragraph, and then create three paragraphs numbered (1), (2), and (3).
+No sale or purchase agreement nor contract of sale is intended hereby until ABC
+Company (Buyer) and Lucky Development Company (Seller) negotiate and agree
+to the final terms and conditions of a Sale-and-Purchase Agreement. Buyer shall
+exercise its best efforts toward securing such commitments from high-quality department and specialty stores as are essential to establishment, construction, and
+operation of a regional mall. For the 111.3 acres of land in the Benbow House
+Survey, Abstract 247, the total consideration to be paid by Buyer to Seller, in cash,
+shall be equal to the product of Five and 50/100 Dollars ($5.50) multiplied by the
+total number of square feet within the boundaries of the land, in accordance with
+the terms and conditions that shall be contained in a subsequent Sale-andPurchase Agreement mutually acceptable to and executed by Buyer and Seller
+within sixty (60) days from the date hereof. Buyer shall exercise its best efforts to
+enter into the Sale-and-Purchase Agreement within the stated time period. In the
+event Buyer and Seller cannot come to final agreement on the terms and conditions of a Sale-and-Purchase Agreement within sixty (60) days from the date
+hereof, this letter of commitment shall be null and void and neither party shall
+have any liabilities or obligations to the other.
+
+Intermediate
+Reorganize and rewrite the following paragraph from an oil-and-gas lease.
+If you feel the need, break the passage into subparagraphs and add subheadings.
+9. The breach by Lessee of any obligations arising hereunder shall not work a forfeiture or termination of this Lease nor cause a termination or reversion of the estate
+created hereby nor be grounds for cancellation hereof in whole or in part unless
+
+§ 33. Minimize definitions
+Lessor shall notify Lessee in writing of the facts relied upon in claiming a breach
+hereof, and Lessee, if in default, shall have sixty (60) days after receipt of such
+notice in which to commence the compliance with the obligations imposed by
+virtue of this instrument, and if Lessee shall fail to do so then Lessor shall have
+grounds for action in a court of law or such remedy to which he may feel entitled.
+After the discovery of oil, gas or other hydrocarbons in paying quantities on the
+lands covered by this Lease, or pooled therewith, Lessee shall reasonably develop
+the acreage retained hereunder, but in discharging this obligation Lessee shall not
+be required to drill more than one well per eighty (80) acres of area retained hereunder and capable of producing oil in paying quantities, and one well per six hundred
+forty (640) acres of the area retained hereunder and capable of producing gas or
+other hydrocarbons in paying quantities, plus a tolerance of ten percent in the case
+of either an oil well or a gas well.
+
+Advanced
+In a statute book or contract formbook, find a document (no more than ten
+pages) with provisions that aren’t in a well-organized order of descending
+importance. Give it what professional editors call a “macro-edit”—that is,
+edit for organization without worrying much about sentence-level problems. If you’re part of a writing group or class, bring a copy of your cleanly
+edited version for each colleague. Be prepared to explain your edits.
+
+§ 33. Minimize definitions. If you have more than just a few, put
+them in a schedule at the end—not at the beginning.
+You’ll find that most contracts begin with definitions. That’s all right
+if the document contains three or four of them. But if it has several pages
+of them, the definitions become a major obstacle. And believe it or not,
+you’ll sometimes encounter documents (such as municipal bonds) that
+begin with more than 30 pages of definitions.
+Although you might think of definitions as clarifiers, they are often
+just the opposite—especially when bunched up at the outset of a corporate document. Take, for example, what is known as a “stock purchase
+agreement.” The first section (which runs for ten pages) begins this way,
+in the middle of page one:
+“Accounts Payable” means trade payables, plus Affiliate (as defined below)
+payables due in connection with Intercompany Agreements (as defined below) that will not be terminated prior to Closing (as defined below) pursuant
+to Section 6(h) below, less vendor credit receivables.
+“Accounts Receivable” means trade receivables, plus Affiliate (as defined
+below) receivables due in connection with Intercompany Agreements (as
+defined below) that will not be terminated prior to Closing (as defined below) pursuant to Section 6(h) below, plus miscellaneous receivables less the
+reserve for doubtful accounts.
+“Active Employees” means:
+(i) AFPC Employees (including but not limited to Union Employees (as
+defined below)) as defined below;
+(ii) Seller Guarantee Employees as defined below;
+(iii) Shared Service Employees as defined below;
+who remain in the employ of, or become employed by, AFPC on the date of
+Closing (as defined below), including but not limited to employees who are
+on the active payroll of AFPC, Seller Guarantor or Anaptyxis Corporation
+
+97
+
+98
+
+Part Three. Principles for Legal Drafting
+
+immediately prior to the Closing (as defined below) and who, although not
+performing direct services, are deemed to be Active Employees under
+AFPC’s, Seller Guarantor’s, or Anaptyxis Corporation’s standard personnel
+policies, such as employees on vacation.
+“AFPC” has the meaning set forth in the recitals above.
+“AFPC Employees” means employees of AFPC immediately prior to the
+Closing (as defined below).
+“AFPC Facilities” means the plants, operations, and equipment owned or
+leased by AFPC and located in Jacksonville, Florida; Madison, Wisconsin;
+Virginia Beach, Virginia; Asheville, North Carolina; Sacramento, California; Canyon, Texas; Hot Springs, Arkansas; Morristown, New Jersey; Springfield, Illinois; and Yakima, Washington. The singular “AFPC Facility”
+means any one of the foregoing AFPC Facilities, without specifying which
+one.
+“AFPC Pension Plan” means the General Employee Retirement Plan of
+Anaptyxis Foam Products Company and Participating Companies.
+“AFPC Severance Plan” has the meaning set forth in Section 7(d)(v) below.
+“AFPC Shares” means all of the shares of the Common Stock, par value one
+hundred dollars and no/100 cents ($100.00) per share, of AFPC. The singular
+“AFPC Share” means any one of the AFPC Shares, without specifying
+which one.
+“Affiliate” means, with respect to each of the Parties (as defined below), any
+legal entity that, directly or indirectly (1) owns or otherwise controls, (2) is
+owned or otherwise controlled by, or (3) is under common control with, the
+aforesaid Party.
+“Affiliated Group” means the affiliated group of corporations within the
+meaning of Section 1504(a) of the Code (as defined below) of which Anaptyxis Corporation is the common parent.
+
+And we’re not even halfway through the A’s. The list finishes with the
+term Union Welfare Plans (sensibly enough never telling us that the singular Union Welfare Plan refers to any one of the specified plans, without
+specifying which one).
+Corporate lawyers often become immune to this stuff after learning the
+material. They get used to having the definitions up front. But this approach violates § 32—about organizing from most to least important. In
+time, you might even conclude that these definitions are nothing but a
+ruse, by and large, for stripping the important information from relevant
+provisions and sticking it somewhere else, for the purpose of willful obscurity.
+Of course, definitions aren’t always intended to obfuscate. Sometimes
+they’re placed in context—but again they’re often unnecessary. Maybe
+these definitions get in the way a little, and maybe nonlawyers will laugh
+at them, but they don’t usually cause any ambiguity. They’re just a symptom of paranoia:
+11. Indemnification. Each party hereto will indemnify and hold harmless
+(the “Indemnifying Party”) the other party (the “Indemnified Party”) from
+all loss and liability (including reasonable expenses and attorney’s fees) to
+which the Indemnified Party may be subject by reason of the breach by the
+
+§ 33. Minimize definitions
+
+Indemnifying Party of any of its duties under this Agreement, unless such
+loss or liability is also due to the Indemnified Party’s negligence or willful
+misconduct.
+
+Delete the definitions, use the fairly ordinary legal word indemnitor, and
+you’ll shorten the passage by more than 25%:
+11. Indemnification. Each party will indemnify the other party from all loss
+and liability (including reasonable expenses and attorney’s fees) to which
+the other party may be subject if the indemnitor breaches its duties under
+this Agreement, unless the loss or liability is also due to the indemnified
+party’s negligence or willful misconduct.
+
+The revised version is clearer on a first read-through. And it’s every bit as
+clear on a second, third, or fourth.
+If you work with securities disclosure documents, there’s some hope.
+The Securities and Exchange Commission has urged—if not mandated—
+that prospectuses and other securities documents minimize definitions.1
+Most disclosure documents today put definitions, if there are any, at the
+end.
+So what can you do if you’re not working in securities law? The first
+step is to put all the definitions in a schedule at the end of your document.
+Call it Schedule A. The second step—a much more ambitious one that
+you may have to postpone until you achieve some degree of seniority—is
+to rewrite the document to cut the definitions in half. That is, rewrite it
+so that it doesn’t need all those definitions. Simply say what you mean at
+the very place where you’re discussing something. In time, you’ll revise
+the document further. And one day you’ll find that you’re down to fewer
+than half a dozen definitions.
+Then you can move them up front again, if you like. You won’t be
+creating a ghastly parade of terms at the outset. And if you have fewer
+than six, they’re likely to be only the most important terms.
+Getting to that point will involve much toil and trouble. But it will be
+worthwhile for virtually all your readers—whoever they may be.
+
+Exercises
+Basic
+In the literature on legal drafting, find additional authority for the idea that
+good drafters minimize definitions.
+Intermediate
+In a formbook or statute book, find a contract or statute in which definitions account for at least 40% of the length. If you’re part of a writing group
+or class, be prepared to discuss your views on (1) why the drafter resorted to
+so many definitions, (2) the extent to which you consider the definitions a
+help or a hindrance, and (3) whether any of the definitions are downright
+silly.
+
+§ 33 1. See Garner, Securities Disclosure in Plain English §§ 62–64, at 99–102 (1999).
+
+99
+
+100
+
+Part Three. Principles for Legal Drafting
+
+Advanced
+In a formbook or ordinance book, find a short contract or ordinance in
+which definitions account for at least 20% of the length. Rewrite it without
+definitions. If you’re part of a writing group or class, be prepared to discuss
+any difficulties you might have had.
+
+§ 34. Break down enumerations into parallel provisions. Put
+every list of subparts at the end of the sentence—never at
+the beginning or in the middle.
+Statutes and contracts typically contain lists, often long ones. These lists
+are the main cause of overlong sentences. Break them up—set them
+apart—and, for purposes of calculating readability, the pieces won’t count
+as a single sentence.1
+Although it’s sometimes useful to have a (1)–(2)–(3) enumeration within
+a paragraph of ordinary expository writing, in legal drafting it’s almost
+always better to set off the enumerated items. No one should have to
+trudge through this kind of marshy prose:
+In the event that by reason of any change in applicable law or regulation or
+in the interpretation thereof by any governmental authority charged with
+the administration, application or interpretation thereof, or by reason of any
+requirement or directive (whether or not having the force of law) of any
+governmental authority, occurring after the date hereof: (i) the Bank should,
+with respect to the Agreement, be subject to any tax, levy, impost, charge,
+fee, duty, deduction, or withholding of any kind whatsoever (other than any
+change which affects solely the taxation of the total income of the Bank),
+or (ii) any change should occur in the taxation of the Bank with respect to
+the principal or interest payable under the Agreement (other than any
+change which affects solely the taxation of the total income of the Bank),
+or (iii) any reserve requirements should be imposed on the commitments to
+lend; and if any of the above-mentioned measures should result in an increase in the cost to the Bank of making or maintaining its Advances or
+commitments to lend hereunder or a reduction in the amount of principal
+or interest received or receivable by the Bank in respect thereof, then upon
+notification and demand being made by the Bank for such additional cost
+or reduction, the Borrower shall pay to the Bank, upon demand being made
+by the Bank, such additional cost or reduction in rate of return; provided,
+however, that the Borrower shall not be responsible for any such cost or
+reduction that may accrue to the Bank with respect to the period between
+the occurrence of the event which gave rise to such cost or reduction and
+the date on which notification is given by the Bank to the Borrower.
+
+Drain the marshes, add some headings and subheadings (see § 4), and you
+have a presentable piece of writing, even though the material is fairly
+complex:
+§ 34 1. See Rudolf Flesch, The Art of Plain Talk 36–37 (1946); see also Rudolf Flesch, The Art of
+Readable Writing 226–27 (1962).
+
+§ 34. Break down enumerations
+
+8.3 Payment of Reductions in Rates of Return
+(A) Borrower’s Obligations. The Borrower must, on demand, pay the Bank
+additional costs or reductions in rates of return if the conditions of
+both (1) and (2) are met:
+(1) the law or a governmental directive, either literally or as applied,
+changes in a way that:
+(a) increases the Bank’s costs in making or maintaining its advances
+or lending commitments; or
+(b) reduces the principal or interest receivable by the Bank; and
+(2) any of the following occurs:
+(a) the Bank becomes—with respect to the Agreement—subject to
+a tax, levy, impost, charge, fee, duty, deduction, or withholding
+of any kind whatever (other than a change that affects solely the
+tax on the Bank’s total income);
+(b) a change occurs in the Bank’s taxes relating to the principal or
+interest payable under the Agreement (other than a change that
+affects solely the tax on the Bank’s total income); or
+(c) a reserve requirement is imposed on the commitments to lend.
+(B) Exceptions to Borrower’s Obligations. The Borrower is not responsible
+for a cost or reduction that accrues to the Bank during the period between the triggering event and the date when the Bank gives the Borrower notice.
+
+A fix like that is mostly a matter of finding enumerated items, breaking
+them out into subparts, and then working to ensure that the passage remains readable.
+You’ll need to use this technique almost every time you see parenthesized romanettes (i, ii, iii) or letters (a, b, c) in the middle of a contractual
+or legislative paragraph. Spotting the problem is relatively easy in a paragraph like this one:
+5.4 Termination Fees Payable by Pantheon. The Merger Agreement obligates Pantheon to pay to OJM an Initial Termination Fee if (a) (i) OJM terminates the Merger Agreement because of either a Withdrawal by Pantheon or
+Pantheon’s failure to comply (and to cure such noncompliance within 30
+days’ notice of the same) with certain Merger Agreement covenants relating
+to the holding of a stockholders meeting, the solicitation of proxies with
+respect to the Pantheon Proposal, and the filing of certain documents with
+the Secretary of State of the State of Delaware, (ii) Pantheon terminates the
+Merger Agreement prior to the approval of the Pantheon Proposal by the
+Pantheon stockholders, upon Pantheon having received an Acquisition Proposal and the Pantheon Board having concluded that its fiduciary obligations under applicable law require that such Acquisition Proposal be accepted, or (iii) either party terminates the Merger Agreement because of
+the failure of Pantheon to obtain stockholder approval for the Merger
+Agreement and the transactions contemplated thereby at a duly held stockholders’ meeting, and (b) at the time of such termination or prior to the
+meeting of the Pantheon stockholders there has been an Acquisition Proposal involving Pantheon or certain of its significant subsidiaries (whether
+
+101
+
+102
+
+Part Three. Principles for Legal Drafting
+
+or not such offer has been rejected or withdrawn prior to the time of such
+termination or of the meeting).
+
+Breaking down the list into parallel provisions, with cascading indents
+from the left margin, makes the provision much clearer:
+5.4 Termination Fees Payable by Pantheon. The Merger Agreement obligates Pantheon to pay to OJM an initial termination fee of $250 million if both of the following conditions are met:
+(A) any of the following occurs:
+(1) OJM terminates the merger agreement because Pantheon’s board
+withdraws its support of the merger or because Pantheon fails to
+comply (and fails to properly cure its noncompliance within 30
+days of receiving notice) with its merger-agreement covenants relating to the holding of a stockholders’ meeting, the solicitation
+of proxies on the Pantheon proposal, and the filing of certain
+documents with the Delaware Secretary of State;
+(2) Pantheon terminates the merger agreement before the Pantheon
+stockholders approve the Pantheon proposal, upon Pantheon’s
+having received a business-combination offer involving at least
+15% of Pantheon’s stock and the Pantheon board’s having concluded that its fiduciary obligations under applicable law require acceptance of that proposal; or
+(3) either party terminates the merger agreement on grounds that
+Pantheon has failed to obtain stockholder approval for the
+merger agreement and the related transactions at a duly held
+stockholders’ meeting; and
+(B) at the time of the termination or before the meeting of the Pantheon stockholders there has been a business-combination offer involving at least 15% of Pantheon’s stock or of its significant subsidiaries (whether or not the offer has been rejected or withdrawn
+before the termination or the meeting).
+
+There’s another point here: you can’t have the main verb come after the
+list. The core parts of the English sentence are the subject and the verb
+(and sometimes an object). One key to writing plain English is ensuring
+that your readers reach the main verb early on. That way, the structure of
+the sentence becomes transparent.
+One of the worst habits that drafters develop is putting long lists of
+items in the subject so that the main verb is delayed. This results in what
+linguists call ⬙left-branching” sentences: ones with lots of complex information that branches out to the left side of the verb. The metaphor is that
+of a tree. As you read from left to right, and remembering that the tree’s
+trunk is the verb, imagine a sentence configured in this way:
+
+§ 34. Break down enumerations
+
+Subject and verb
+
+That’s going to be fiendishly difficult to get through.
+But imagine the tree reconfigured:
+
+Subjec
+
+t and
+
+verb
+
+If all this talk of trees sounds too botanical, look at actual examples of
+sentences done both ways. Here’s a typical left-brancher:
+Except as may otherwise be provided in these rules—
+(a) every order required by its terms to be served;
+(b) every pleading subsequent to the original complaint unless the court orders otherwise because of numerous defendants;
+(c) every paper relating to discovery required to be served upon a party unless the court orders otherwise;
+(d) every written motion other than one that may be heard ex parte; and
+(e) every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper
+—must be served on each of the parties to the action.
+
+The language after the enumeration—sometimes called “unnumbered
+dangling flush text”—is uncitable. That can be a problem. Once you put
+the enumeration at the end, however, the problem is cured. Here’s the
+same sentence done as a right-brancher, with the enumeration at the end.
+
+103
+
+104
+
+Part Three. Principles for Legal Drafting
+
+Notice the newly added foreshadowing language (the following papers):
+Except as these rules provide otherwise, the following papers must be served
+on every party:
+(a) an order required by its terms to be served;
+(b) a pleading filed after the original complaint, unless the court orders otherwise because of numerous defendants;
+(c) a discovery paper required to be served on a party, unless the court orders otherwise;
+(d) a written motion, other than one that may be heard ex parte; and
+(e) a written notice, appearance, demand, offer of judgment, designation of
+record on appeal, or similar paper.
+
+This is only a special application of the principle announced in § 7: keep
+the subject and verb together toward the beginning of the sentence.
+Here’s the upshot: find the operative verb in the sentence and move it
+toward the front, putting your lists at the end of the sentence. Even with
+fairly modest lists, this technique can make a tremendous difference in
+readability.
+
+Exercises
+Basic
+Revise the following paragraph to put the enumerated items in separate
+subparagraphs. At the same time, be sure that you don’t create unnumbered
+dangling flush text.
+7.7 Insurance. Borrower shall provide or cause to be provided the policies of insurance described in Exhibit I, together with such other policies of insurance as
+Lender may reasonably require from time to time. All insurance policies (i) shall
+be continuously maintained at Borrower’s sole expense, (ii) shall be issued by insurers of recognized responsibility which are satisfactory to Lender, (iii) shall be
+in form, substance and amount satisfactory to Lender, (iv) with respect to liability
+insurance, shall name Lender as an additional insured, (v) shall provide that they
+cannot be canceled or modified without 60 days’ prior written notice to Lender,
+and (vi) with respect to insurance covering damage to the Mortgaged Property,
+(A) shall name Lender as a mortgagee, (B) shall contain a “lender’s loss payable”
+endorsement in form and substance satisfactory to Lender, and (C) shall contain
+an agreed value clause sufficient to eliminate any risk of coinsurance. Borrower
+shall deliver or cause to be delivered to Lender, from time to time at Lender’s
+request, originals or copies of such policies or certificates evidencing the same.
+
+Intermediate
+Revise the following passage to cure the left-branching problem:
+If at any time the Federal Energy Regulatory Commission should disallow the
+inclusion in its jurisdictional cost of gas, cost of service, or rate base any portion
+of the cost incurred because of this gas purchase or the full amount of any costs
+incurred by Buyer for any field services or facilities with respect to any well subject hereto, whether arising from any term or provision in this Agreement or otherwise, including but not limited to price and price adjustments, the prices provided for herein, then Seller agrees that the price will be reduced to the maximum
+price for gas hereunder which the Federal Energy Regulatory Commission will
+allow Buyer to include in its jurisdictional cost of gas, cost of service, or rate base
+and Seller shall promptly refund with interest all prior payments for gas purchased
+hereunder which exceed the amount Buyer is permitted to include in said cost of
+gas, cost of service, or rate base.
+
+§ 35. Delete every shall
+
+Advanced
+In a contract formbook, find a 200-plus-word paragraph that contains a series of romanettes (i, ii, iii). Rewrite the paragraph to set off the listed items,
+and make any other edits that improve the style without affecting the meaning. If you’re part of a writing group or class, bring a copy of the before-andafter versions for each colleague. Be prepared to discuss your edits.
+
+§ 35. Delete every shall.
+Shall isn’t plain English. Chances are it’s not a part of your everyday vocabulary, except in lighthearted questions that begin, “Shall we . . . ?”
+But legal drafters use shall incessantly. They learn it by osmosis in law
+school, and the lesson is fortified in law practice. Ask a drafter what shall
+means, and you’ll hear that it’s a mandatory word—opposed to the permissive may. Although this isn’t a lie, it’s a gross inaccuracy. And it’s not a
+lie only because the vast majority of drafters don’t know how shifty the
+word is.
+Often, it’s true, shall is mandatory:
+Each corporate officer in attendance shall sign the official register at the
+annual meeting.
+
+Yet the word frequently bears other meanings—sometimes even masquerading as a synonym of may. Remember that shall is supposed to mean
+“has a duty to,” but it almost never does mean this when it’s preceded by
+a negative word such as nothing or neither:
+Nothing in this Agreement shall be construed to make the Owners
+partners or joint venturers.
+● Neither the Purchaser nor any Employer shall discriminate against
+any employee or applicant for employment on the basis of race, religion, color, sex, national origin, ancestry, age, handicap or disability,
+sexual orientation, military-discharge status, marital status, or parental status.
+● Neither party shall assign this Agreement, directly or indirectly, without the prior written consent of the other party.
+●
+
+Does that last example really mean that neither party has a duty to assign
+the agreement? No. It means that neither party is allowed to (that is, may)
+assign it.
+In just about every jurisdiction, courts have held that shall can mean
+not just must1 and may,2 but also will3 and is.4 Even in the U.S. Supreme
+Court, the holdings on shall are cause for concern. The Court has:
+●
+
+held that a legislative amendment from shall to may had no substantive effect;5
+
+§ 35 1. See, e.g., Bell Atlantic–N.J., Inc. v. Tate, 962 F. Supp. 608 (D.N.J. 1997).
+2. See, e.g., Northwestern Bell Tel. Co. v. Wentz, 103 N.W.2d 245 (N.D. 1960).
+3. See, e.g., Cassan v. Fern, 109 A.2d 482 (N.J. Super. 1954).
+4. See, e.g., Local Lodge No. 1417, Int’l Ass’n of Machinists, AFL–CIO v. NLRB, 296 F.2d 357 (D.C.
+Cir. 1961).
+5. Moore v. Illinois Cent. Ry., 312 U.S. 630, 635 (1941).
+
+105
+
+106
+
+Part Three. Principles for Legal Drafting
+
+held that if the government bears the duty, “the word ‘shall,’ when
+used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest”;6
+● held that shall means “must” for existing rights, but that it need not
+be construed as mandatory when a new right is created;7
+● treated shall as a “precatory suggestion”;8
+● acknowledged that “[t]hough ‘shall’ generally means ‘must,’ legal
+writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or
+even ‘may’”;9
+● held that, when a statute stated that the Secretary of Labor “shall” act
+within a certain time and the Secretary didn’t do so, the “mere use
+of the word ‘shall’ was not enough to remove the Secretary’s power
+to act.”10
+●
+
+These examples, which could be multiplied, show only a few of the travails that shall routinely invites. And the more than 100 pages of reported
+cases in Words and Phrases—a useful encyclopedia of litigated terms—
+show that the word shall is a mess.11 As Joseph Kimble, a noted drafting
+expert, puts it: “Drafters use it mindlessly. Courts read it any which
+way.”12
+Increasingly, official drafting bodies are recognizing the problem. For
+example, the Federal Rules of Appellate Procedure and the Texas Rules of
+Appellate Procedure have recently been revamped to remove all shalls.13
+(In stating requirements, the rules use the verb must.) The improved clarity is remarkable. Meanwhile, many transactional drafters have adopted
+the shall-less style, with the same effect. (In stating contractual promises,
+they typically use either will or agrees to.) You should do the same.
+
+Exercises
+Basic
+Edit the following sentences for clarity, replacing the shalls:
+●
+
+Escrow Agent shall be entitled to receive an annual fee in accordance with standard
+charges for services to be rendered hereunder.
+
+●
+
+Each member shall have the right to sell, give, or bequeath all or any part of his
+membership interest to any other member without restriction of any kind.
+
+●
+
+The occurrence of any one or more of the following shall constitute an event of
+default: (a) Borrower shall fail to pay any installment of principal or interest on
+an advance . . . .
+
+6. Railroad Co. v. Hecht, 95 U.S. 168, 170 (1877).
+7. West Wis. Ry. v. Foley, 94 U.S. 100, 103 (1876).
+8. Scott v. United States, 436 U.S. 128, 146 (1978) (Brennan, J., dissenting).
+9. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 n.9 (1995) (adding that “certain of the Federal
+Rules use the word ‘shall’ to authorize, but not to require, judicial action,” citing Fed. R. Civ. P. 16(e) and
+Fed. R. Crim. P. 11(b)).
+10. United States v. Montalvo-Murillo, 495 U.S. 708, 718 (1990).
+11. 39 Words and Phrases 111–96 (1953), plus 41 pp. in 1999 pocket part.
+12. Joseph Kimble, The Many Misuses of “Shall,” 3 Scribes J. Legal Writing 61, 71 (1992).
+13. See Garner, Guidelines for Drafting and Editing Court Rules § 4.2(A), at 29 (1996).
+
+§ 36. Don’t use provisos
+●
+
+After completion of Licensee’s work, Licensee shall have the duty to restore the
+License Area to its former condition, as it was before the Licensee’s entry into the
+License Area.
+
+●
+
+The sender shall have fully complied with the requirement to send notice when the
+sender obtains electronic confirmation.
+
+Intermediate
+In the following extract from a licensing agreement, count the various ways
+in which duties are stated. Edit the passage for consistency.
+7.3 Ownership and Use of the Marks and Copyrights. Licensee shall not claim any
+title to or right to use the Marks except pursuant to this Agreement. Licensee
+covenants and agrees that it shall at no time adopt or use any word or corporate
+name or mark that is likely to cause confusion with the Marks.
+7.4 Compliance with the Law. Licensee will use the Marks and copyright designation
+strictly in compliance with all applicable and related legal requirements and, in
+connection therewith, shall place such wording on each Licensed Item or its packaging as Licensee and Licensor shall mutually agree on. Licensee agrees that it
+will make all necessary filings with the appropriate governmental entities in all
+countries in which Licensee is selling the Licensed Item or using the Marks to
+protect the Marks or any of Licensor’s rights.
+7.5 Duty of Cooperation. Licensee agrees to cooperate fully and in good faith with
+Licensor for the purpose of securing, preserving, and protecting Licensor’s rights
+in and to the Marks. Licensee must bear the cost if Licensee’s acts or negligence
+have in any way endangered or threatened to endanger such rights of Licensor.
+
+Advanced
+In a contract formbook, find a document in which shall appears inconsistently. On a photocopy, highlight every shall, as well as every other verb
+or verb phrase that seems to impose a requirement—such as must, will,
+is obligated to, agrees to, undertakes to, and has the responsibility to. If
+you’re part of a writing group or class, bring a highlighted copy for each
+colleague. Be prepared to discuss (1) how serious the inconsistencies are, (2)
+how you think they might have come about, and (3) how easy or difficult
+you think it would be to cure the problem in your document.
+
+§ 36. Don’t use provisos.
+Legal-drafting authorities have long warned against using provided that.1
+The phrase has three serious problems: (1) its meaning is often unclear,
+since it can create a condition, an exception, or an add-on; (2) its reach is
+often unclear, especially in a long sentence; and (3) it makes your sentence
+sprawl and creates more margin-to-margin text. You’re better off never
+using the phrase. You can always find a clearer wording.
+Since provided that has as many as three meanings, the phrase is com-
+
+§ 36 1. See, e.g., Thomas R. Haggard, Legal Drafting in a Nutshell 129–31 (1996); G.C. Thornton,
+Legislative Drafting 79–81 (4th ed. 1996); Bryan A. Garner, A Dictionary of Modern Legal Usage 710 (2d
+ed. 1995); Barbara Child, Drafting Legal Documents 322 (2d ed. 1992); Michele M. Asprey, Plain Language for Lawyers 107–09 (1991); E.L. Piesse, The Elements of Drafting 67–71 (J.K. Aitken ed., 7th ed.
+1987); Reed Dickerson, The Fundamentals of Legal Drafting § 6.9, at 128–29 (2d ed. 1986); Robert C.
+Dick, Legal Drafting 92–100 (2d ed. 1985); John A. Bell, Prose of Law: Congress as a Stylist of Statutory
+English 10–12 (1981); Reed Dickerson, Materials on Legal Drafting 194 (1981); Elmer A. Driedger, The
+Composition of Legislation 86, 110–20 (1956).
+
+107
+
+108
+
+Part Three. Principles for Legal Drafting
+
+monly ambiguous.2 It has been said to be equivalent to if,3 except,4 and
+also.5
+But that’s only the beginning of the problem. Another frequent source
+of litigation arises over what the phrase modifies. Does it go back ten
+words? Twenty? A hundred? That depends on how long the sentence is.
+Believe it or not, there’s a canon of construction about provisos, and the
+test is anything but clear: a proviso modifies only the immediately preceding language (whatever that is),6 but it may be held to reach back still
+further to effectuate the drafters’ manifest intention.7 This type of guidance is of little practical value.
+Finally, there’s the problem of the blocklike appearance that provisos
+commonly create. You can double or even triple the length of a sentence
+with a couple of ill-placed provisos. Drafters frequently do this.
+Let’s look at a passage that illustrates all three problems. The first two
+words in the passage mean if, but after that the sense of the provisos gets
+more confusing:
+Provided that the Issuing Bank or Escrow Agent has received an Inspection
+Report, the Purchase Price will be released upon the earliest occurrence of
+one of the following: (i) receipt by the Escrow Agent or the Issuing Bank of
+a letter from the Buyer, the Buyer’s freight forwarder, if any, or the Buyer’s
+shipper certifying that the Glenn Mill is loaded on one or more cargo vessels
+and in transit to Brazil; or (ii) the expiration of a period of one hundred
+twenty (120) calendar days following the Delivery Date; provided, however,
+that any events or circumstances beyond Buyer’s reasonable control which
+prevent the disassembly, packing or shipment of the Used Steel Mill and/or
+Incomplete Mill, including both events of force majeure and causes imputable to Seller, shall extend the aforementioned period for the same number
+of days that such event or circumstance persists, and provided, further, that
+if such a period should be extended by such events or circumstances more
+2. 2 Emory Washburn, A Treatise on the American Law of Real Property 26 (5th ed. 1887) (“The word
+‘proviso’ or ‘provided,’ itself, may sometimes be taken as a condition, sometimes as a limitation, and
+sometimes as a covenant.”).
+3. See, e.g., Barbara Oil Co. v. Patrick Petroleum Co., 566 P.2d 389, 392 (Kan. Ct. App. 1977) (“A
+proviso in a contract creates a condition . . . .”).
+4. See, e.g., Bounds v. State Workmen’s Compensation Comm’r, 172 S.E.2d 379, 383 (W. Va. 1970)
+(“[T]he statute, by the proviso, creates an exception . . . .”).
+5. See, e.g., Knight v. Chicago Corp., 188 S.W.2d 564, 567 (Tex. 1945) (“[A] proviso in statutes, contracts, or wills not infrequently introduces new or independent matter . . . .”).
+6. See, e.g., Grupo Protexa, S.A. v. All Am. Marine Slip, 954 F.2d 130, 140 (3d Cir. 1992) (“[T]he
+language [in a proviso] qualifies the duty imposed by the language preceding the proviso . . . .”); Hospital
+Ass’n v. Axelrod, 565 N.Y.S.2d 884, 886 (App. Div.) (“[G]enerally, a proviso limits the clause or terms
+immediately preceding it.”), appeal denied, 577 N.E.2d 1059 (N.Y. 1991); Schneider v. Forcier, 406 P.2d
+935, 938 (Wash. 1965) (en banc) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. Thus a proviso is construed to apply to the provision or
+clause immediately preceding it.”); Essex v. Washington, 176 P.2d 476, 481 (Okla. 1946) (“[A proviso]
+qualifies and restricts that which immediately precedes it.”).
+7. See, e.g., Hill v. Board of Educ., 944 P.2d 930, 332 (Okla. 1997) (“[A] proviso need not be confined
+to the immediately preceding subject where it clearly appears to have been intended to apply to some
+other matter.”); Sanzone v. Board of Police Comm’rs, 592 A.2d 912, 919 (Conn. 1991) (“While sometimes
+a proviso is said to limit only the language immediately preceding it, the better rule is that the proviso
+limits the entire section or, as the case may be, subsection within which it is incorporated.”).
+
+§ 36. Don’t use provisos
+
+than one hundred eighty (180) calendar days beyond the Delivery Date, either party may rescind this Agreement by written notice to the other, with
+a copy to the Escrow Agent or the Issuing Bank in accordance with section
+11, hereof, whereupon the portion of the Purchase Price being held in the
+Escrow Account will be released to the Buyer or the letter of credit will be
+canceled, as the case may be, and title to and possession of the Glenn Mill
+will revert to Seller without the need for further action.
+
+In fact, the middle proviso creates an exception, and the third (as you
+might have recognized) creates what lawyers call a “condition subsequent” to the exception. But then there’s the question of what the second
+proviso modifies: does it go back to the beginning of the sentence, or only
+to (i) and (ii), or only to (ii)? If you took the time to puzzle it out, you’d
+finally conclude that it modifies only (ii), which is the only preceding
+language that mentions a period of time. Finally, did you notice how unappealing the long paragraph is?
+If you eliminate the provisos and use subparagraphs (see § 34), the ambiguities are removed. Equally important, the passage becomes much more
+readable:
+If the Issuing Bank or Escrow Agent receives an Inspection Report, the Purchase Price must be released upon the earlier of:
+(A) the date when the Escrow Agent or the Issuing Bank receives a letter,
+from either Buyer or Buyer’s freight forwarder or shipper, certifying that
+the Glenn Mill is loaded on one or more cargo vessels and is in transit
+to Brazil; or
+(B) 120 days past the Delivery Date, with the following qualifications:
+(1) this 120-day period will be extended for as long as any event or circumstance beyond Buyer’s reasonable control—including force majeure and causes imputable to Seller—prevents disassembling, packing, or shipping the Used Steel Mill or Incomplete Mill;
+(2) if, under (1), the period is extended for more than 180 days beyond
+the Delivery Date, either party may rescind this Agreement by giving written notice to the other and by forwarding a copy to the Escrow Agent or the Issuing Bank, in accordance with section 11; and
+(3) if either party rescinds under (2), the portion of the Purchase Price
+held in the Escrow Account will be released to Buyer or the letter of
+credit canceled; title to and possession of the Glenn Mill will then
+automatically revert to Seller.
+
+And according to the system for computing average sentence length
+(again, see the beginning of § 34), the average in that particular passage
+is now down to 33 words—as opposed to the 250-word sentence in the
+original.
+You’ll see the same phenomenon again and again: you can always improve on a proviso. Here are three more examples:
+●
+
+Neither party may assign this Agreement without the prior written
+consent of the other party; provided, however, that Publisher may
+assign its rights and obligations under this Agreement without the
+
+109
+
+110
+
+Part Three. Principles for Legal Drafting
+
+prior written consent of Author to any person or entity that acquires
+all or substantially all of the business or assets of Publisher.
+● If Pantheon’s annual requirements for aluminum closure sheet fall
+below the 9-million pound minimum, Pantheon will purchase and
+Alu-Steel will supply all of Pantheon’s volume requirements; provided, however, that Pantheon may have reasonable trial quantities
+supplied by an alternate source.
+● If in the absence of a protective order Bryson is nonetheless compelled
+by court order to disclose protected information, Bryson may disclose
+it without liability hereunder; provided, however, that Bryson gives
+Pantheon written notice of the information to be disclosed as far in
+advance of its disclosure as practicable and that Bryson use its best
+efforts to obtain assurances that the protected information will be
+accorded confidential treatment; and provided further, that Bryson
+will furnish only that portion of the protected information that is
+legally required.
+The first two examples are easily remedied by relying on But as a sentence
+starter—a perfectly acceptable and even desirable method of beginning a
+sentence (see § 6):
+Neither party may assign this Agreement without the prior written
+consent of the other party. But without the prior written consent of
+Author, Publisher may assign its rights and obligations under this
+Agreement to any person or entity that acquires all or substantially
+all of Publisher’s business or assets.
+● If Pantheon’s annual requirements for aluminum closure sheet fall
+below the 9-million-pound minimum, Pantheon will purchase and
+Alu-Steel will supply all of Pantheon’s volume requirements. But Pantheon may have reasonable trial quantities supplied by an alternate
+source.
+●
+
+A grammatically acceptable but less appealing method would be to start
+those revised sentences with However.8
+The third example requires only slightly more ingenuity to improve
+the wording:
+●
+
+If in the absence of a protective order Bryson is nonetheless compelled
+by court order to disclose protected information, Bryson may disclose
+it without liability if:
+(A) Bryson gives Pantheon written notice of the information to be disclosed as far in advance of its disclosure as practicable;
+(B) Bryson uses best efforts to obtain assurances that the protected information will be accorded confidential treatment; and
+
+8. See William Strunk, Jr. & E.B. White, The Elements of Style (4th ed. 1999); Bryan A. Garner, A
+Dictionary of Modern American Usage 342–43 (1998); Sheridan Baker, The Complete Stylist 55–56 (2d
+ed. 1972).
+
+§ 36. Don’t use provisos
+
+(C) Bryson furnishes only the portion of the protected information
+that is legally required.
+Notice how the revision makes it clear that there are three requirements
+with which Bryson must comply. That wasn’t as clear in the original.
+By the way, relatively few transactional lawyers have ever heard the
+chorus of warnings about provisos. Long-standing members of the bar,
+having practiced for 25 years or more, often use provisos throughout their
+work. You might well ask how this is possible if the principle about
+avoiding them is so well established. The answer is that, even despite
+recent improvements, legal drafting has long been neglected in American
+law schools. And the literature on legal drafting is little known. You’ll
+find that most transactional lawyers can’t name even one book on the
+subject. So it’s hardly surprising that even the most basic principles of
+good drafting are routinely flouted. Only in the past few years have law
+schools begun to correct this problem by offering more drafting courses.
+
+Exercises
+Basic
+Revise the following passages to eliminate the provisos:
+●
+
+The quantity of product whose delivery or acceptance is excused by force majeure
+will be deducted without liability from the quantity otherwise subject to delivery
+or acceptance; provided, however, that in no event will Buyer be relieved of the
+obligation to pay in full for product previously delivered.
+
+●
+
+Contractor will be reimbursed for travel and subsistence expenses actually and necessarily incurred by Contractor in performing this Contract in an amount not to
+exceed $2,000; provided that Contractor will be reimbursed for these expenses in
+the same manner and in no greater amount than is provided in the current Commissioner’s Plan.
+
+●
+
+The Borrower may, at any time and from time to time, prepay the Loans in whole
+or in part, without premium or penalty, upon at least one business day’s notice to
+the Lender, specifying the date and the amount of the prepayment; provided, however, that each such prepayment must be accompanied by the payment of all accrued but unpaid interest on the amount prepaid to the date of the prepayment.
+
+Intermediate
+Revise the following passages to eliminate the provisos:
+●
+
+If Seller’s production of the product is stopped or disrupted by an event of force
+majeure, Seller must allocate its available supplies of the product to Buyer based
+upon the same percentage of Seller’s preceding year’s shipments of products to Buyer
+in relation to Seller’s total shipments for the product, provided, however, that to
+the extent that Seller does not need any tonnage that is available in excess of the
+allocation of products to Buyer, it must make that tonnage available to Buyer.
+
+●
+
+This Agreement will terminate upon the termination of the Merger Agreement under § 6.1 or two years from the effective date of this Agreement, whichever occurs
+earlier; provided that if the Merger Agreement is terminated under § 6.1(d), 6.1(g), or
+6.1(h) of that agreement and at the time of termination there has been an acquisition
+proposal as described in § 14 of that agreement, then this Agreement will not termi-
+
+111
+
+112
+
+Part Three. Principles for Legal Drafting
+nate until four months after the termination of the Merger Agreement or payment
+to the parent company of a termination fee under § 6.2, whichever occurs earlier.
+●
+
+When the Lease term expires, if Renton has fully complied with all its obligations
+under the Lease, Renton will be entitled to a 20% interest in the profits of Jamie
+Ridge in the form of a nonmanaging membership interest, and the right to lease or
+buy for nominal consideration approximately 1.6 acres, in an area designated by
+Jamie Ridge, for the purpose of operating a garden nursery, provided that any such
+lease or sale would be contingent upon the nursery’s purpose being permitted under
+all applicable laws, and provided further that the area designated for the nursery
+would be burdened by a restrictive covenant prohibiting any other use thereof.
+
+Advanced
+In a federal statute or regulation, find a passage containing at least two
+provisos. Rewrite the passage to eliminate the provisos and otherwise improve the style. If you’re part of a writing group or class, bring a copy of the
+before-and-after versions for each colleague.
+
+§ 37. Replace and/or wherever it appears.
+With experience you’ll find that you don’t need and/or. But more than
+that, you’ll find that and/or can be positively dangerous.
+About half the time, and/or really means or; about half the time, it
+means and. All you have to do is examine the sentence closely and decide
+what you really mean. If a sign says, “No food or drink allowed,” it certainly doesn’t suggest that you are allowed to have both. And if a sign
+says, “Lawyers and law students are not allowed beyond this point,” even
+though the message is bizarre it doesn’t suggest that a lawyer may proceed alone.
+But let’s look at real sentences from transactional documents. In the
+following examples, and/or means or:
+Licensee provides no warranty as to the nature, accuracy, and/or [read
+or] continued access to the Internet images provided under this
+Agreement.
+● The Foundation will promptly furnish Sponsor with a disclosure of all
+intellectual property conceived and/or [read or] reduced to practice
+during the project period.
+● Each party will inform the other if it becomes aware of the infringement by a third party under any claim of a patent that issues on joint
+inventions and/or [read or] sole inventions. If litigation occurs under
+any joint invention and/or [read or] sole invention, and both parties
+are necessary parties to the litigation, then each party will pay its
+own costs.
+●
+
+Here, though, it means and:
+All applicable state and federal taxes will apply to cash awards received and/or [read and ] options exercised by ZBZ.
+● Licensee agrees to indemnify Owner for any claims for brokerage commissions and/or [read and ] finder’s fees made by any real-estate broker
+for a commission, finder’s fee, or other compensation as a result of
+the License.
+●
+
+§ 37. Replace and/or wherever it appears
+●
+
+The deliverables are the Sponsor’s property, and the Sponsor may use
+and/or [read and ] duplicate them in its normal business operations.
+
+The danger lurking behind and/or is that the adversarial reader can
+often give it a skewed reading. Consider the employment application that
+asks, “Are you able to work overtime and/or variable shifts?” If the applicant can work overtime but not variable shifts, the answer would be yes.
+The next question reads, “If the previous answer was ‘No,’ please explain.”
+The applicant need not fill this out, since the previous answer was yes.
+She gets hired, goes to work, and is soon asked to work variable shifts. She
+says no and gets fired. A wrongful-termination lawsuit soon follows. Is
+that a far-fetched case? No. It’s one of many actual lawsuits spawned by
+the use of and/or.
+Courts, by the way, have routinely had extremely unkind words for
+those who use and/or.1 Don’t give them cause for still more grumbling.
+
+Exercises
+Basic
+Edit the following sentences to remove and/or:
+●
+
+AmCorp and Havasu have the sole right to use inventions covered by this
+Agreement and to obtain patent, copyright, and/or trade-secret protection or any
+other form of legal protection for the inventions.
+
+●
+
+Immediately upon notice from Licensor, Licensee must discontinue the printing
+and/or manufacture of licensed items at every print shop and/or the making of
+those items.
+
+●
+
+No change, waiver, and/or discharge of this Agreement is valid unless in a writing
+that is signed by an authorized representative of the party against whom the change,
+waiver, and/or discharge is sought to be enforced.
+
+●
+
+The settlement is binding on all the creditors and/or classes of creditors and/or on
+all the stockholders or classes of stockholders of this Corporation.
+
+Intermediate
+Find three cases in which courts have criticized the use of and/or. Quote
+and cite the relevant passages.
+Advanced
+In state statutes or regulations, find three sentences in which and/or appears. Retype them, providing citations, and then edit them to remove and/
+or without changing the original drafter’s meaning. If you’re part of a writing
+group or class, bring a copy of the before-and-after versions for each colleague. Be prepared to discuss your edits.
+
+§ 37 1. Sandman v. Farmers Ins. Exch., 969 P.2d 277, 281 (Mont. 1998) (“[T]he use of this much-maligned
+and overused conjunctive–disjunctive reflects poor draftsmanship and generally should be avoided . . . .”);
+California Trout, Inc. v. State Water Resources Bd., 255 Cal. Rptr. 184, 194 n.8 (Ct. App. 1989) (“‘And/
+or’ is taboo in legislative drafting.”); Klecan v. Schmal, 241 N.W.2d 529, 533 (Neb. 1976) (“[T]he use of
+‘and/or’ in a statute is not to be recommended as it leads to uncertainty.”); In re Bell, 122 P.2d 22, 29 (Cal.
+1942) (noting that and/or “lends itself . . . as much to ambiguity as to brevity [and] cannot intelligibly be
+used to fix the occurrence of past events”); Employers Mut. Liab. Ins. Co. v. Tollefsen, 263 N.W. 376, 377
+(Wis. 1935) (noting that and/or is a “befuddling, nameless thing, that Janus-faced verbal monstrosity”).
+
+113
+
+114
+
+Part Three. Principles for Legal Drafting
+
+§ 38. Prefer the singular over the plural.
+You’ll find an age-old provision in statutes and contracts: “The singular
+includes the plural; the plural includes the singular.” Only the second part
+of this formulation has ever really mattered. For example, if an ordinance
+says, “People may not set off fireworks within the city limits,” the plural
+words people and fireworks create several problems. First, does the ordinance apply only to people who work in groups, but not to individuals?
+Second, even if it does apply to individuals, doesn’t the phrasing imply
+that everyone gets a freebie? That is, only fireworks are forbidden, but if
+you shoot off just one . . . . (Some would make it a big one.) Third, what
+constitutes a violation? If you set off 30 fireworks in 30 minutes, how
+many times have you violated the ordinance? Once or 30 times?
+But if the ordinance says, “No person may set off a firework,” it avoids
+all those problems. That’s the beauty of the singular.
+It’s true that you’ll occasionally need the plural. For example:
+Any dispute among employers may be resolved by the employers’
+grievance committee.
+● The Company agrees to destroy all unauthorized reproductions in its
+possession.
+● These rules are intended to streamline discovery.
+●
+
+If you’re going to use a plural, however, double-check it: make sure that it
+really is necessary.
+
+Exercises
+Basic
+Edit the following sentences to change the plural to singular when appropriate:
+●
+
+Employees who have earned more than 25 credits are eligible for positions under § 7.
+
+●
+
+The fire marshal is responsible for issuing all the permits listed in this section.
+
+●
+
+All the shareholders of the corporation have only one vote.
+
+●
+
+If the appealing parties have not satisfied the requisites for interlocutory appeals,
+their appeals will be dismissed.
+
+●
+
+When issues not raised by the pleadings are tried by the express or implied consent
+of the parties, they must be treated in all respects as if they had been raised by
+the pleadings.
+
+Intermediate
+In a state-court rulebook, find a rule that is undesirably worded in the plural. Photocopy the rule and edit it to fix the problem you’ve identified. If
+you’re part of a writing group or class, bring a copy of your edited version
+for each colleague.
+Advanced
+In the literature on legal drafting, find additional authority for the idea that
+a singular construction typically works better than a plural one.
+
+§ 39. Prefer numerals, not words, to denote amounts
+
+§ 39. Prefer numerals, not words, to denote amounts. Avoid
+word–numeral doublets.
+To maximize readability, spell out the numbers one to ten only. For 11 and
+above, use numerals—they’re more economical. Compare just how many
+characters you save by writing 73 as opposed to seventy-three. For the
+busy reader, even milliseconds add up.
+But this numerals-vs.-words rule has four exceptions:
+1. If a passage contains some numbers below 11 and some above—and
+the things being counted all belong to the same category or type—
+use numerals consistently: Although we ordered 25 computer terminals, we received only 2. (But: We received our 25 terminals over a
+three-month period.)
+2. For dollar amounts in millions and billions, use a combination of
+numerals plus words for round numbers ($3 million) and numerals
+for other numbers ($3,548,777.88).
+3. For a percentage, use numerals with a percent sign: 9%, 75%.
+4. Spell out a number that begins a sentence: Two hundred fifty-three
+cases were disposed of in this court last year. (You might just recast
+a sentence like that one.)
+An additional point: unless you’re preparing mathematical figures in a
+column, omit “.00” after a round number.
+As for word–numeral doublets—“one hundred thousand and no/100
+dollars ($100,000)”—comparatively few lawyers even know why they engage in the ancient habit. Having put the question to more than fifty (50)
+lawyerly audiences, I’ve mostly heard wrong answers:
+Word–numeral doublets are a safeguard against typos.
+They increase readability.
+● In checks, they help in cases of illegible handwriting.
+● The illiterate can at least read the numbers.
+● They prevent discrepancies in numbers.
+●
+●
+
+The last is the most ludicrous: discrepancies aren’t possible unless you
+write it twice.
+In truth, word–numeral doublets arose centuries ago as a safeguard
+against fraudulently altered documents. That’s why you write out checks
+in both words and numerals—the numerals by themselves would be too
+easy to alter. Additionally, the practice is said to have proliferated in the
+days of carbon copies. When you had five or six carbons, the typewriter’s
+impressions for digits often weren’t legible on the last couple of copies.
+Hence the doubling helped ensure that all the carbons were legible.
+But these rationales don’t extend very far. There’s no good reason why
+modern briefs, judicial opinions, statutes, or contracts should contain
+doublets—yet many of them do. The result is quite unappealing:
+
+115
+
+116
+
+Part Three. Principles for Legal Drafting
+Not this:
+WHEREAS, the Borrower has requested the Lender (a) to make a term loan to
+the Borrower in the aggregate principal
+amount of four million and no/100 dollars ($4,000,000.00); (b) to make available
+to the Borrower a revolving line of credit
+for loans and letters of credit in an
+amount not to exceed six million and
+no/100 dollars ($6,000,000.00); and (c) to
+make available to Borrower a capital expenditures line of credit for loans in an
+amount not to exceed one million and
+no/100 dollars ($1,000,000.00), which extensions of credit the Borrower will use
+for Borrower’s working capital needs and
+general business purposes.
+
+But this:
+The Borrower has requested the
+Lender to extend three types of credit for
+working capital and general business purposes:
+
+Licensee agrees to pay the Licensor two
+hundred thousand dollars ($200,000)
+within seven (7) days after the execution
+of this agreement.
+
+The Licensee must pay Ciglerion
+$200,000 within seven days after this
+agreement is signed.
+
+The parties have agreed that for purposes
+of this Agreement, the current fair market value of the Property is Three Hundred Eighty-Nine Thousand Six Hundred
+Sixty-Seven and 00/100 Dollars
+($389,667.00).
+
+For purposes of this Agreement, the current fair market value of the Property is
+$389,667.
+
+●
+
+a term loan of $4 million.
+
+●
+
+a revolving line of credit for loans and
+letters of credit of up to $6 million.
+
+●
+
+a capital-expenditures line of credit for
+loans of up to $1 million.
+
+Often you’ll find passages in which the important numbers are written
+out once, while the unimportant ones get doubled:
+If the sale transaction closes on or before December 31, 2000, (i) the purchase price will be reduced by $100,000; and (ii) on the second anniversary
+of the closing date, the City will receive the vehicles and equipment listed
+in Exhibit G. During the two (2) year period after the closing date, Pitmans
+will make its vehicles and equipment available to the City for routine emergency maintenance at the rate of fifty and no/100 dollars ($50.00) per hour.
+
+Are the two-year period and the $50 rate really more susceptible to fraudulent alteration than the sum of $100,000?
+The extremes to which this silly habit is taken are illustrated by a
+letter I recently received from a fellow lawyer. This acquaintance has an
+underdeveloped sense of humor, so I knew the letter was no joke. It began:
+“Dear Bryan: It was a real pleasure running into you and your two (2)
+daughters last week at the supermarket.” Did he really suspect that I
+might alter the letter?
+Quite apart from the recommendation in this section, be exceedingly
+careful about numbers in drafted documents. Your eye, of course, will be
+immediately drawn to the numerals. So the recommendation will help
+
+§ 40. If you can’t understand a form provision, cut it
+
+you. But whatever convention you follow, you’ll find that it’s important to
+double-check—even though you shouldn’t double up—your numbers.
+
+Exercises
+Basic
+Fix the numbering problems in the following passage:
+Before the entry of the final decree on June 5, 2000, the parties participated in
+four (4) hearings before three (3) Commissioners in Chancery, took three (3) additional sets of depositions of healthcare providers, and had at least twelve (12) ore
+tenus hearings. The court granted a divorce on the ground of separation in excess
+of one year, granted spousal support and Five Thousand Dollars ($5,000.00) in
+costs and attorney’s fees to the wife, and equitably distributed the property.
+
+Intermediate
+In the literature on legal drafting, find two authoritative discussions on any
+aspect of word–numeral doublets, such as the idea that words control over
+numerals (and why). If you’re part of a writing group or class, bring the
+authorities with you and be prepared to report on them.
+Advanced
+Find two cases in which courts have had to interpret documents that contain discrepancies in doubled-up words and numerals. Brief the cases and,
+if you’re part of a writing group or class, be prepared to discuss them.
+
+§ 40. If you don’t understand a form provision—or don’t
+understand why it should be included in your document—
+try diligently to gain that understanding. If you still can’t
+understand it, cut it.
+There’s a recurring story in law offices. It goes something like this.
+Two corporations are planning a joint venture. Each one, of course, is
+represented by a law firm. One firm—the one representing the larger corporation—prepares the first draft of the contract. Naturally, the lawyers
+rely on one of their forms. They just tweak it.
+Henry, a third-year associate at Firm A, sends the draft contract over to
+Lindsay, a partner at Firm B. Being an experienced lawyer, Lindsay carefully works through the draft, noting possible additions, amendments, and
+negotiating points. After a few hours of reading, she comes across § 7.1,
+on page 31. It seems to be a remnant of some other deal—something not
+at all germane to the joint venture. She can’t understand what it’s saying.
+She talks to a couple of colleagues, who agree. So she calls Henry.
+“Henry, this is Lindsay.”
+“Hi.”
+“I’ve been working through your draft contract, and I expect to have my
+comments to you by next Tuesday. I don’t see any serious impediments.”
+“Glad to hear it,” says Henry.
+“Oh, but there’s one thing I want to ask you about now. Do you have a
+copy of the contract handy?”
+“Let me just get it.” (Pause.) “OK.”
+
+117
+
+118
+
+Part Three. Principles for Legal Drafting
+
+“Look at page 31. Section 7.1. What does that mean?”
+(Long pause.)
+“Now that you mention it, I’m not quite sure. I didn’t draft that part of
+the agreement. I’m working on this deal with Barbara, a partner here at the
+firm. Let me talk with her about it. I’ll get back to you.”
+
+Henry has just admitted to Lindsay that he didn’t know the meaning of
+a provision in a document that he sent to her. It’s a little embarrassing—
+but only a little. Now he has the difficult problem of raising the issue with
+Barbara. He’ll have to finesse the discussion. Here goes:
+“Say, Barbara,” he says, “Lindsay just called about our draft contract.
+She’ll have her comments to us by next Tuesday.”
+“Good,” says Barbara. “Thanks for telling me.”
+“Well, that’s not all. She wants to know something about § 7.1, right
+here on page 31. See?”
+“What does she want to know?”
+“Well, she’s asking what it means.”
+“Did you tell her?”
+“No. Since I didn’t draft that, I thought I should get your view of it.”
+“I see. What do you think it means?”
+“To be honest, I can’t tell. I’ve looked at it and can’t figure it out.”
+
+As you can imagine, this hasn’t been pleasant for Henry. He has had to
+admit both to Lindsay and to Barbara that he sent a contract out without
+knowing what one of its provisions means. Barbara, being a partner, knows
+what it means. And she says so in fairly clear language: “Henry, essentially
+§ 7.1 does thus-and-so.” A light goes on in Henry’s brain. Now he sees it.
+Back at his office, he calls Lindsay:
+“This is Henry again. I’ve talked with Barbara about § 7.1, and essentially
+that provision does thus-and-so.”
+“Oh. That’s what it’s doing there. Let’s just say it that way, then. ‘Thusand-so’ is clear, but not this language you have at § 7.1. I don’t have any
+problem with what you’re trying to accomplish, but we need to say it so
+that my client and I can understand it.”
+“You mean change the language?”
+“Of course. I can’t understand § 7.1.”
+“Well, I’ll have to talk with Barbara about this.”
+
+And he does. In the end, Lindsay always wins this kind of discussion.
+But rather than use the newly clarified language, Firm A sticks to its bad
+old form—the one that even its third-year associates can’t understand.
+That’s the way of the world.
+This scenario might seem far-fetched. In fact, though, some version of
+it plays out every day in dozens of law offices throughout the country.
+What might be even more surprising is that official documents frequently contain provisions that are so obscure that no one knows how,
+when, or why they got inserted. In the mid-1990s, when a state supreme
+court revised its appellate rules for clarity, there were several sentences
+that befuddled everyone. Even procedural scholars wouldn’t venture to
+
+§ 40. If you can’t understand a form provision, cut it
+
+guess why those sentences were there, or even what they meant. So did
+the court keep the sentences? Absolutely not. The revisers cut them, and
+rightly so.
+If you don’t understand a provision, it’s probably one that will come
+back to bite you in some way—especially in a contract. So rather than
+leave something in, idly supposing there’s a reason for it when no knowledgeable lawyer can say what that reason is, you’re better off deleting it.
+But remember the part about diligence: you must sometimes sweat and
+fret awhile to discover a meaning before you can safely conclude that there
+isn’t any.
+
+Exercises
+Basic
+Decide whether you think the provisions described below have any real
+meaning. If you’re part of a writing group or class, be prepared to defend
+your position.
+●
+
+No savings and loan holding company, directly or indirectly, or through one or more
+transactions, shall . . . acquire control of an uninsured institution or retain, for more
+than one year after other than an insured institution or holding company thereof,
+the date any insured institution subsidiary becomes uninsured, control of such institution. [12 CFR § 584.4(b).]
+
+●
+
+“Spouse” is defined as the person to whom the Cardholder is legally married or the
+person with whom the Cardholder is cohabiting as husband and wife and has been
+cohabiting for at least two years provided that where there is a legally undissolved
+marriage and the Cardholder is cohabiting with a person as husband and wife and
+has been so cohabiting for at least two years, the spouse is the person with whom
+the Cardholder has been cohabiting.
+
+●
+
+The 911 provider shall not impose, or fail to impose, on Company any requirement,
+service, feature, standard, or rate that is not required of the incumbent local exchange company.
+
+Intermediate
+Interview a lawyer who (1) has practiced transactional law for at least ten
+years, and (2) can recall a situation in which a provision relating to some
+other deal had meaninglessly crept into draft contracts where the provision
+didn’t belong. Take specific notes on the interview. If you’re part of a writing
+group or class, be prepared to report your findings.
+Advanced
+Find a reported case in which a party has had to argue that a sentence or
+paragraph is essentially meaningless. Write a casenote. Decide whether you
+agree with the court’s resolution of the issue. If you’re part of a writing group
+or class, bring a copy of both the case and your casenote for each colleague.
+
+119
+
+part four
+Principles for Document Design
+
+What’s the first thing a prospective employer notices about a
+résumé? Its overall appearance. And first impressions matter.
+But document design is about much more than first impressions: it’s about third and fourth impressions. After all, your
+reader may spend many hours with your work. If you know
+how to produce readable pages, you’ll minimize readers’ headaches and maximize the effortless retrieval of information.
+So you must learn something about typography and page
+layout. Although lawyers formerly didn’t have to trouble themselves with these things—because the options were severely
+limited in the days of typewriters—times have changed. Ignore
+document design at your peril.
+
+§ 41. Use a readable typeface.
+There’s a lot more to learn about typography than most lawyers realize.
+Or want to realize. When someone starts talking about margins and white
+space and serifed typefaces, most lawyers tune out. And they tend to resent court rules containing specifications about type.1
+Yet these matters are anything but trivial. As magazine and book publishers well know, design is critical to a publication’s success. Of course,
+it won’t make up for poor content. But poor design can certainly mar
+good content.
+This is no time to get technical, so we’ll keep it simple: use a readable
+serifed typeface that resembles what you routinely see in good magazines
+and books. (A serifed typeface is one that has small finishing strokes jutting from the ends of each character.) Here’s an example in Times New
+Roman:
+We hold these truths to be self-evident.
+
+And this is Palatino:
+We hold these truths to be self-evident.
+
+Either of these or several other typefaces—such as Century Schoolbook,
+Garamond, or Caslon—will serve you and your documents well.
+What you’ll especially want to avoid is the traditional typeface for typewriters: Courier. It’s blocklike and rather crude-looking:
+We hold these truths to be self-evident.
+
+You won’t find it in magazines or books. After all, no publisher would
+want to present such an unpolished look.
+
+Exercises
+Basic
+Find three sets of court rules that specify different typefaces or point size.
+Analyze the differences among them. If you’re part of a writing group or
+class, be prepared to report your findings and to discuss which rule might
+result in more readable court papers.
+Intermediate
+Find two regulations (state or federal) that contain typeface specifications.
+Summarize those specifications and their purpose. If you’re part of a writing
+group or class, bring a one-page summary for each colleague.
+Advanced
+Find two nonlegal sources that discuss which typefaces are most readable.
+Retype the most pertinent passages and provide citations. If you’re part of
+a writing group or class, bring a copy for each colleague.
+§ 41 1. See, e.g., Fed. R. App. P. 32.
+
+123
+
+124
+
+Part Four. Principles for Document Design
+
+or
+Find authority for the proposition that a sans-serif typeface is often best for
+headlines, while a serifed typeface is best for text.
+
+§ 42. Create ample white space—and use it meaningfully.
+To the modern eye, densely printed pages are a turnoff. Readers find them
+discouraging. So you’ll need some methods to break up dense passages
+with white space. Many techniques discussed in this book contribute to
+white space, especially these:
+section headings (§ 4);
+frequent paragraphing (§ 26);
+● footnoted citations (§ 28);
+● set-off lists with hanging indents (§ 34); and
+● bullets (§ 43).
+●
+●
+
+The white space around text is what makes a page look inviting and
+roomy. The lack of it makes the page look imposing and cramped.
+By the way, which is easier for you to read: single-spaced or doublespaced text? Don’t be so quick with your answer. If you’re editing a manuscript, you’ll want the page double-spaced. But if you’re simply reading for
+comprehension, you probably won’t. That’s because double-spaced text
+has white space spread unmeaningfully throughout the page—between
+every two lines of type.
+And there are three other disadvantages to double-spacing: (1) the document will be twice as long; (2) you’ll encounter paragraphs and headings
+less frequently; and (3) you’ll find it somewhat harder to figure out the
+document’s structure. Book and magazine publishers know these things:
+when they produce polished, readable prose that is single-spaced, it’s not
+necessarily because they’re environmentalists.
+Although court rules typically require that lawyers’ filings be doublespaced, you’re generally better off single-spacing when you can—as in
+letters and memos. Just be sure that you create meaningful white space in
+the margins, between paragraphs, and between items in set-off lists.
+
+Exercises
+Basic
+Find a legal document in which ample white space appears. If you’re part of
+a writing group or class, bring two or three photocopied pages for each colleague. Be prepared to discuss whether you think the writer used white
+space well or poorly, and why.
+Intermediate
+Find a legal document with insufficient white space. If you’re part of a group
+or class, bring a copy of the two most cramped-looking pages for each colleague. Be prepared to speculate on why the pages look the way they do.
+Advanced
+Redesign the pages that you found for the Intermediate exercise.
+
+§ 43. Highlight ideas with attention-getters
+
+§ 43. Highlight ideas with attention-getters such as bullets.
+When you want to highlight important items in a list, there’s hardly a
+better way than to use a series of bullet dots. They effectively take the
+reader’s eye from one point to the next.
+Consider the following paragraph from a legal memo. It’s a midsize
+lump of sentences in which the salient points have been buried:
+The most advisable form of entity for organization of activities related to
+ProForm in the United States depends on the purposes for the entity, and
+especially on whether there are short-term or long-term plans for the national affiliates to be used as vehicles for directly profiting Mr. LaRoche
+or other investors and sports personalities involved. In order to definitively
+respond to this item, we would need more information as to the business
+plans in the United States. For example, what are the business objectives of
+the affiliate in the United States? How exactly will the organization obtain
+its financial resources? Will it actually have revenues, and if so from what
+sources? Are merchandise sales contemplated, or will the organization limit
+itself to providing services? To what extent will the entity actually organize
+and administer athletic events, as opposed to merely promoting the new
+sport? To what extent will educational activities or facilitating cultural exchanges be parts of the entity’s purposes? What other activities are planned?
+
+But see what a bulleted list can do to make it snappier:
+What organizational structure to devise for the sport in the United States
+depends on the business objectives that Mr. LaRoche envisions. Perhaps the
+chief question is: Does he have short-term or long-term plans for having
+the national affiliates directly profit himself or other investors and sports
+personalities? But to address even this question, we need more information
+about his business plans in the United States. For example:
+● What, specifically, are his business goals for the U.S. affiliate?
+● How will the entity be financed?
+● Will it actually have revenues? If so, from what sources?
+● Does Mr. LaRoche contemplate having the entity sell merchandise, or
+
+will he limit it to providing services?
+● To what extent will the entity actually organize and administer athletic
+
+events as opposed to simply promoting the new sport?
+● To what extent will educational activities, such as facilitating cultural
+
+exchanges, be part of the entity’s purposes?
+● What other activities are planned?
+
+That sort of listing is vital to readability and punchiness. Advertisers,
+journalists, and other professional writers use bullets. So should you.
+Because the mechanics of bullets aren’t self-explanatory, here are several points—in bulleted fashion, of course—to keep in mind:
+Put a colon at the end of the sentence leading into the bulleted list. It
+serves as a tether for the bulleted items.
+● Be sure to use “hanging” indents. That is, keep each bullet hanging
+out to the left, without any text directly underneath it.
+●
+
+125
+
+126
+
+Part Four. Principles for Document Design
+
+Adjust your tab settings so that you have only a short distance between the bullet dot and the first word. Normally, a quarter-inch is
+too much space—an eighth of an inch is about right.
+● Make your items grammatically parallel (see § 9).
+● Adopt a sensible convention for ending your items with semicolons or
+periods. (1) If each of your items consists of at least one complete
+sentence, capitalize the first word and put a period at the end of each
+item. (2) If each item consists of a phrase or clause, begin each item
+with a lowercase letter, put a semicolon at the end of all but the last
+item, and put a period at the end of the last. Place an and or an or after
+the last semicolon.
+●
+
+Exercises
+Basic
+Find one or more uses of bullets in the Federal Rules of Appellate Procedure.
+Consider (1) why you think the drafters used bullets in those places but not
+elsewhere, and (2) to what extent the presentation follows the guidelines
+given in this section.
+Intermediate
+Find and photocopy a court rule containing a page with a list that would
+benefit from bullets. Retype the passage to improve it.
+Advanced
+In the literature on effective writing, find two discussions of bullets. If
+you’re part of a writing group or class, be prepared to talk about what additional information you learned from those discussions.
+
+§ 44. Don’t use all capitals, and avoid initial capitals.
+In the old days, typists had chiefly two ways—rather crude ways—to
+emphasize text. They could underline, or else they could capitalize all
+the characters. Typewriters afforded extremely limited options. Although
+computers have given writers many better options—boldface, italic, boldface italic, variable point sizes, and bullet dots, to name a few—many
+legal writers are stuck in the old rut of all-caps text.
+The problem with using all capitals is that individual characters lose
+their distinctive features: the strokes that go above and below a line of
+text. (Typographers call these strokes “ascenders” and “descenders.”) Capital letters, by contrast, are designed to be uniform in size. And when they
+come in battalions, the eye must strain a little—or a lot—to make out
+words and sentences:
+THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
+BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
+SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
+PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS. ANY
+REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
+
+§ 45. For a long document, make a table of contents
+
+Even if you change to initial capitals, you can’t say there’s much improvement in readability. Initial caps create visual hiccups:
+These Securities Have Not Been Approved or Disapproved by the Securities
+and Exchange Commission or Any State Securities Commission Nor Has
+the Securities and Exchange Commission or Any State Securities Commission Passed upon the Accuracy or Adequacy of This Prospectus Supplement
+or the Accompanying Prospectus. Any Representation to the Contrary Is a
+Criminal Offense.
+
+You’d be better off using ordinary boldface type:
+Neither the SEC nor any state securities commission has approved these
+certificates or determined that this prospectus is accurate or complete. It’s
+illegal for anyone to tell you otherwise.
+
+You might even consider putting the highlighted text in a box, like this:
+Neither the SEC nor any state securities commission has approved these
+certificates or determined that this prospectus is accurate or complete. It’s
+illegal for anyone to tell you otherwise.
+
+Although some statutes require certain types of language—such as warranty disclaimers—to be conspicuous, they typically don’t mandate allcaps text. There’s always a better way.
+
+Exercises
+Basic
+Find a ghastly example of all-caps text in a brief or formbook. Then read it
+closely to see how many typos you can find. If you’re part of a writing group
+or class, bring a copy for each colleague.
+Intermediate
+In the literature on typography or on effective writing, find two authorities
+stating that all-caps text is hard to read. Type the supporting passage and
+provide a citation. If you’re part of a writing group or class, bring a copy for
+each colleague.
+Advanced
+Find a state or federal regulation requiring certain sections of certain documents to be in prominent type. Interview a lawyer who sometimes prepares
+these documents. Consider (1) how lawyers comply with the requirement—
+especially the extent to which they use all capitals, (2) whether capitals are
+actually required, and (3) whether you think there is a better way to comply
+with the requirement.
+
+§ 45. For a long document, make a table of contents.
+A two-page document doesn’t need a table of contents. But anything beyond six pages—if it’s well organized (see §§ 2, 3, 21, 31) and has good
+headings (§ 4)—typically benefits from a table of contents. Your outline
+
+127
+
+128
+
+Part Four. Principles for Document Design
+
+(§ 2) will be a good start. Yet even if you’ve neglected the outline, a table
+of contents can serve you well—as an afterthought. You’ll benefit from
+rethinking the soundness of your structure after you’ve completed a draft.
+Whatever the document, most readers will appreciate a table of contents. Some judges routinely turn first to the contents page of the briefs
+they read. Readers of corporate prospectuses often do the same—to get a
+quick overview of what the document discusses. Parties to a contract can
+use the contents page to find the information that concerns them.
+If you’re writing a brief, try creating a table of contents that looks something like the one below, by Jerome R. Doak of Dallas. Notice how every
+heading within the argument section is a complete sentence—an argumentative statement:
+
+Table of Contents
+Preliminary Statement ................................................................................ i
+Statement Regarding Oral Argument ........................................................ ii
+Table of Authorities ................................................................................... iii
+Statement of the Issues ...............................................................................1
+Statement of Facts .......................................................................................3
+Argument .....................................................................................................6
+1. Every class-certification decision is inherently conditional and
+subject to decertification based on later factual developments ............6
+A. The original certification was based only on the pleadings .............8
+B. Decertification is proper in light of factual developments
+in discovery ..........................................................................................8
+2. Discovery now shows that the earlier predicates for class
+certification are false ...............................................................................9
+A. The original predicates for class certification, as alleged in
+plaintiffs’ 1992 complaint, no longer apply ......................................9
+B. Plaintiffs’ 1997 admissions reveal myriad new factors ...................11
+1. There is no single level of exposure that causes disease.............11
+2. Different flight attendants were exposed to different amounts
+of secondhand smoke in airline cabins because of their unique
+work histories ................................................................................12
+3. Plaintiffs’ own experts deny any association between ETS and
+many of the alleged diseases.........................................................13
+4. “Relative risk” cannot establish medical causation ...................14
+5. The record now shows that the defenses to plaintiffs’ claims
+will depend entirely on the individualized proofs from each
+class member .................................................................................17
+
+§ 45. For a long document, make a table of contents
+
+C. Plaintiffs’ admissions now show without doubt that this case
+lacks any “common” causation issue .............................................19
+3. Other courts have struggled with these same issues and determined
+that these cases cannot go forward as class actions ............................20
+4. The choice-of-law problems would require individual-by-individual
+determinations.......................................................................................24
+5. A “Stage I” trial would be meaningless, and “Stage II” would
+be hopeless .............................................................................................33
+6. The trial plan proposed by plaintiffs and adopted by the court created
+more problems .......................................................................................39
+Conclusion .................................................................................................42
+If you’re writing a securities-disclosure document such as a prospectus
+for an initial public offering—commonly called an “IPO”—your table of
+contents might look like the one below. Notice that this document uses
+topical headings, not argumentative ones:
+
+Table of Contents
+1
+
+Summary of Our Offering.....................................................................1
+1.1 Our business ..................................................................................2
+1.2 Our operating results ....................................................................7
+1.3 Our growth strategies....................................................................8
+1.4 The offering ...................................................................................8
+1.5 Selected financial data ..................................................................9
+
+2
+
+Risk Factors ...........................................................................................9
+2.1 Risks associated with our financial position.............................10
+2.2 Business factors that may adversely affect our operations .......11
+2.3 Other factors that may adversely affect our financial results ..11
+2.4 Other factors that may adversely affect our common stock ....12
+
+3
+
+Forward-Looking Statements ..............................................................13
+3.1 In general .....................................................................................13
+3.2 No “safe harbor” .........................................................................13
+
+4
+
+Capitalization ......................................................................................14
+
+5
+
+Management’s Discussion and Analysis of Financial Condition
+and Results of Operations ...................................................................14
+5.1 Overview......................................................................................14
+5.2 Results of operations...................................................................15
+5.3 Liquidity and capital resources...................................................16
+5.4 Impact of accounting statement changes ..................................17
+
+129
+
+130
+
+Part Four. Principles for Document Design
+
+6
+
+Our Business........................................................................................17
+6.1 In general .....................................................................................17
+6.2 Industry overview and competition ...........................................17
+6.3 Operations ...................................................................................18
+6.4 Growth strategies ........................................................................20
+6.5 Store operations...........................................................................21
+6.6 Manufacturing and distribution .................................................22
+6.7 Marketing ....................................................................................22
+6.8 Employees ....................................................................................22
+
+7
+
+Our Management.................................................................................23
+7.1 Our directors and executive officers ..........................................23
+7.2 Committees of our board of directors ........................................25
+7.3 Compensation committee interlocks and
+insider participation....................................................................25
+7.4 Director compensation ...............................................................25
+7.5 Executive compensation .............................................................26
+
+8
+
+Principal Stockholders ........................................................................27
+
+9
+
+Description of Our Capital Stock.......................................................29
+9.1 In general .....................................................................................29
+9.2 Common stock ............................................................................29
+9.3 Preferred stock.............................................................................29
+9.4 Certain provisions of our articles of incorporation and code
+of regulations and of Ohio law ...................................................29
+9.5 Limitation of director liability; indemnification.......................32
+9.6 Transfer agent and registrar ........................................................33
+
+10 Shares Eligible for Future Sale............................................................33
+10.1 In general .....................................................................................33
+10.2 Sales of restricted shares.............................................................33
+10.3 Effect of sales of shares ...............................................................34
+11 Underwriting .......................................................................................34
+11.1 In general .....................................................................................34
+11.2 Overallotment option .................................................................35
+11.3 Indemnification ...........................................................................35
+11.4 Lockup agreements .....................................................................35
+11.5 Absence of established trading market ......................................36
+11.6 Warning about foreign restrictions on public offering ..............36
+11.7 Underwriters’ overallotment to stabilize...................................36
+12 Legal Matters .......................................................................................36
+13 Experts .................................................................................................37
+14 Additional Information .......................................................................37
+
+§ 45. For a long document, make a table of contents
+
+And if you’re drafting a contract, try a table of contents like the one
+below. This one comes from an asset-purchase agreement. Again, the
+headings are topical instead of argumentative:
+
+Asset Purchase Agreement
+1. Purchase and Sale of Assets; Assumption of Liabilities......................1
+1.1 Purchase and Sale of Assets ..........................................................1
+1.2 Consideration.................................................................................3
+1.3 Tax Allocation................................................................................9
+1.4 Adjustments to Purchase Price...................................................10
+2. Seller’s Representations and Warranties.............................................12
+2.1 Due Authorization and Execution..............................................12
+2.2 Seller’s Organization....................................................................12
+2.3 Financial Statements ...................................................................13
+2.4 No Undisclosed Liabilities..........................................................13
+2.5 Absence of Certain Changes .......................................................13
+2.6 Contracts and Other Obligations ...............................................14
+2.7 Taxes .............................................................................................15
+2.8 Litigation and Other Proceedings ...............................................15
+2.9 Consents, Violations, and Authorizations .................................16
+2.10 Environmental Matters .............................................................16
+2.11 Assets .........................................................................................18
+2.12 Inventories..................................................................................19
+2.13 Accounts Receivable..................................................................20
+2.14 Title to Assets ............................................................................20
+2.15 Intellectual Property..................................................................20
+2.16 Insurance ....................................................................................21
+2.17 Required Permits; Violations of Law ........................................21
+2.18 Employee Benefit Plans .............................................................21
+2.19 Employees and Other Labor Contracts.....................................23
+2.20 Open Bids ...................................................................................24
+2.21 Product Warranties ....................................................................24
+2.22 Fees, Commissions, and Expenses............................................24
+2.23 Good Title Conveyed .................................................................24
+2.24 Full Disclosure...........................................................................24
+3. Buyer’s Representations and Warranties ............................................25
+3.1 Due Authorization and Execution..............................................25
+3.2 Buyer’s Organization....................................................................25
+3.3 Consents, Violations, and Authorizations .................................25
+3.4 Accuracy of Information .............................................................26
+3.5 Fees, Commissions, and Expenses..............................................26
+3.6 Full Disclosure.............................................................................26
+
+131
+
+132
+
+Part Four. Principles for Document Design
+
+4. Conduct of Business Pending Closing................................................26
+4.1 Ordinary Course ..........................................................................26
+4.2 No Acquisitions...........................................................................26
+4.3 No Dispositions ...........................................................................26
+4.4 Employees ....................................................................................27
+4.5 Mortgages, Liens, and Other Encumbrances..............................27
+4.6 Waiver of Rights...........................................................................27
+4.7 Capital Expenditures ...................................................................27
+4.8 Material Agreements ...................................................................27
+4.9 Other Agreements .......................................................................27
+4.10 Financial Information................................................................27
+5. Conditions to Buyer’s Obligations......................................................27
+5.1 Seller’s Warranties and Representations.....................................28
+5.2 Opinion of Seller’s Counsel.........................................................28
+5.3 Absence of Litigation or Investigation .......................................28
+5.4 Required Approvals......................................................................28
+5.5 Hart–Scott–Rodino Act ...............................................................28
+5.6 Financing......................................................................................28
+6. Conditions to Seller’s Obligations ......................................................29
+6.1 Buyer’s Warranties and Representations.....................................29
+6.2 Opinion of Buyer’s Counsel ........................................................29
+6.3 Absence of Litigation or Investigation .......................................29
+6.4 Required Approvals......................................................................29
+6.5 Hart–Scott–Rodino Act ...............................................................29
+7. Survival; Indemnification ....................................................................29
+7.1 Survival of Representations and Warranties and
+Related Agreements.....................................................................29
+7.2 General Indemnification .............................................................30
+8. Additional Covenants of the Parties...................................................33
+8.1 Hart–Scott–Rodino Act Filings ...................................................33
+8.2 Noncompetition ..........................................................................33
+8.3 Access by Buyer and Agents........................................................33
+8.4 Availability of Records to Seller .................................................34
+8.5 Employment of Seller’s Employees Assigned to the Company.34
+8.6 Audited Financial Statements.....................................................35
+8.7 Environmental Covenants...........................................................35
+8.8 Reasonable Best Efforts to Obtain Financing.............................41
+8.9 Lease of Real Property and Escrow to Fund Option and Put ....41
+8.10 Permitted Use of Buyer’s Name by Seller ................................44
+
+§ 45. For a long document, make a table of contents
+
+9. Closing .................................................................................................45
+9.1 Closing .........................................................................................45
+9.2 Deliveries at Closing ...................................................................46
+10. Termination .........................................................................................46
+10.1 Termination .................................................................................46
+10.2 Procedure upon Termination ......................................................46
+11. Mediation and Arbitration ..................................................................47
+11.1 Negotiation and Mediation.........................................................47
+11.2 No Litigation................................................................................47
+11.3 Binding Arbitration......................................................................47
+11.4 Selection of Arbitrator.................................................................48
+11.5 Arbitration Hearing .....................................................................48
+11.6 Law Governing Arbitration .........................................................48
+12. General Provisions...............................................................................49
+12.1 Proration of Taxes; Allocation of Expenses................................49
+12.2 Further Assurances ......................................................................49
+12.3 Notices .........................................................................................49
+12.4 Assignment; Successors ..............................................................50
+12.5 Entire Agreement.........................................................................51
+12.6 Amendment; Modification..........................................................51
+12.7 Counterparts ................................................................................51
+12.8 Parties in Interest.........................................................................51
+12.9 Governing Law.............................................................................51
+An asset-purchase agreement like that one, of course, is usually the
+product of many hands over many years. You won’t be expected to draft it
+from scratch—and almost certainly couldn’t. But even when you’re starting with a form, it’s often worthwhile to prepare a contents page. The
+process will help you understand the structure of the document. And your
+readers will thank you.
+
+Exercises
+Basic
+In a contractual formbook, find a 10- to 20-page contract that has no table
+of contents. Make one for it. If you’re part of a writing group or class, bring
+a copy of your table for each colleague. Be prepared to discuss whether your
+outline would result in any major edits—especially edits that might cause
+the drafter to reorganize the document.
+Intermediate
+Find a state statute or regulation (10–25 pages) that has no table of contents.
+Make one for it. If you’re part of a writing group or class, bring a copy of
+your table for each colleague. Be prepared to discuss whether your outline
+
+133
+
+134
+
+Part Four. Principles for Document Design
+
+would result in any major edits—especially edits that might cause the
+drafter to reorganize the document.
+Advanced
+Find a brief, an IPO prospectus, or an asset-purchase agreement that has a
+table of contents. Photocopy it, and then compare it with the relevant example in this section. Write a two- or three-paragraph essay comparing and
+contrasting the two. If you’re part of a writing group or class, bring a copy
+of your essay for each colleague, along with the table of contents you found.
+
+part five
+Methods for Continued Improvement
+
+When will you have finished trying to improve your writing?
+That simply depends on how good a writer you want to be. If
+you aspire to be a top-notch writer, you’ll never be finished.
+
+§ 46. Embrace constructive criticism.
+At first, all writers resist criticism. You probably tend to equate your writing with your intellect. You might instinctively feel that if someone criticizes your writing, it’s an assault on the way your mind works. But if you
+don’t learn to overcome this defensive instinct—if you insulate yourself
+from criticism—you’ll find it difficult to improve.
+What every writer needs to go through, at some point, is a series of good
+edits—not just edits, and not just heavy edits, but good edits. This means
+you’ll need an experienced editor. In time, the edits will get lighter. But
+you’ll never outgrow the need for a good editor. No writer ever does. Writing is a humbling affair.
+You’ll even find, with time, that you can get valuable comments from
+people who aren’t professional editors. They might find a particular sentence awkward or a particular word jarring. You should listen to what they
+say. Don’t simply discount their comments as uninformed blather.
+Increasingly, writing pros are actually paying for nonprofessional advice. Testing legal documents on ordinary readers, just to see what might
+be going wrong, is a relatively recent practice that can dramatically improve quality. In the old days, if nonlawyers couldn’t follow legal writing,
+many lawyers might have arrogantly claimed that the cause was the readers’ sheer ignorance. Now, the more enlightened view is that misreadings
+more likely show the writer’s sheer ineptitude.
+It’s possible to test the readability of all sorts of documents, from car
+warranties to apartment leases to court rules. It’s even possible to test the
+persuasiveness of appellate briefs.1
+But you must be willing to subject your writing to independent, objective scrutiny. The more secure you are as a writer, the more you’ll seek out
+this scrutiny. It won’t come naturally. You’ll have to learn for yourself the
+value of seeking out criticism—and then heeding it.
+
+Exercises
+Basic
+Find a book chapter or a law-review note or article in need of a good edit.
+Retype a substantial section—at least one full page (but omit substantive
+footnotes)—in triple-spaced format. Then edit it. If you’re part of a writing
+group or class, bring a copy of the marked-up version for each colleague.
+Intermediate
+Agree with a colleague that the two of you will do some mutual editing.
+Each of you will then write a three-paragraph persuasive essay. (Don’t forget
+§ 30.) Exchange the essays, edit them within a specified period, and then
+meet to discuss your edits. Each of you should agree to (1) listen openmindedly to the other’s edits, and (2) refrain from making unduly negative
+remarks on your colleague’s essay. Each of you should use your colleague’s
+edits to revise the original.
+§ 46 1. See Garner, The Winning Brief § 99, at 385–88 (1999).
+
+137
+
+138
+
+Part Five. Methods for Continued Improvement
+
+Advanced
+If you’re part of a writing group or class, write a five-page essay defending a
+controversial legal position. Polish it. Make three copies (keep the original
+for yourself) and bring them to the meeting. The leader or instructor will
+divide the class into groups of three for purposes of exchanging papers.
+You’ll then edit the essays from the other two people in your group, and
+they will edit yours. Try not to edit lightly. Write a note at the end of each
+paper you edit, noting both strengths and weaknesses; cover both style and
+content. (Say something positive if you can—and you always can.) When
+you return the following week, you’ll have two sets of edits—possibly even
+three, if the leader or instructor has also edited your essay. Use the best
+edits (at least half) to revise the essay.
+
+§ 47. Edit yourself systematically.
+Imagine taking a golf lesson and having the instructor tell you to try a few
+things on your next swing: (1) keep your feet at shoulder width; (2) align
+the ball off your left heel; (3) bend your knees slightly; (4) start with your
+hands in front of the ball; (5) loosen your grip; (6) take the clubhead back
+low to the ground; (7) keep your left arm straight on the backswing; (8)
+keep your left heel on the ground throughout; (9) roll your right hand to
+the left at impact; (10) shift your weight from the right foot to the left just
+before impact; (11) clip the grass under the ball; (12) try not to move your
+head till the ball is struck. Finally, the instructor tells you, concentrate on
+hitting the ball smoothly instead of hard. Got that?
+Tiger Woods and Nancy Lopez do most of those things naturally. For
+the pros, they’re easy. Yet even the pros continue to need lessons because
+the fundamentals are easy to overlook. The golf swing is complex.
+So is editing. It’s at least as hard to explain what a good editor does when
+holding a pen as it is to explain what a good golfer does when holding a
+two-iron. Some years ago, I spent several days with John Trimble of the
+University of Texas—the author of the justly famous textbook Writing
+with Style (2d ed. 2000)—trying to identify precisely what a good editor
+does. Our goal was to devise an editorial protocol that almost anyone
+could carry out, step by step.
+We found that, as editors, we work similarly. We both begin by clearing
+out the underbrush—sentence by sentence. We clean up the little, easily
+fixable problems. Then we go through the piece a second time, making
+more ambitious edits. This time, we concentrate especially on tightening
+slack wordings. Then we go through the piece again to rethink structure,
+transitions, and the ideas themselves. By now we’re pretty familiar with
+the whole of what we’re editing.
+Having developed our protocol for LawProse seminars, we call it the
+LawProse Editing Method. Here it is:
+The LawProse Editing Method
+Level One: Basic Edits
+1. Cut or reword pointless legalisms (§ 12).
+2. Convert be-verbs (is, are, was, were, be, been) into stronger verbs
+(§ 13).
+
+§ 47. Edit yourself systematically
+
+3. Convert passive voice into active unless there’s a good reason not to
+(§ 8).
+4. Change -ion words into verbs when you can (§ 14).
+5. Check every of to see whether it’s propping up a wordy construction
+(§ 15). If so, rephrase.
+6. Check for misused words (§ 48), faulty punctuation (appendix A), and
+other mechanical problems.
+7. Try to cut each sentence by at least 25% (§ 5).
+8. Read aloud, accenting the final word or phrase in each sentence
+(§ 11). Does it read naturally?
+Level Two: Edits to Refine
+Ask yourself:
+1. Does the central point emerge clearly and quickly (§ 22)?
+2. Is there a strong counterargument that you haven’t adequately addressed (§ 30)?
+3. Can you spot a bridge at the outset of each paragraph (§ 25)?
+4. For each block quotation, have you supplied an informative lead-in
+(§ 29)?
+5. Can you dramatize your points better? Can you phrase them more
+memorably? Where you’ve enumerated points, should you set them
+off with bullets instead (§ 43)?
+6. Have you found a way to subordinate citations so that they don’t mar
+the page (and your analysis) (§ 28)?
+7. Have you used real names for parties (unless there’s a compelling
+reason not to) (§ 17)?
+8. Have you achieved the right tone (§ 20)?
+Because this method involves so many steps, it is artificial and laborious.
+But it’s an excellent tool for self-teaching. It will almost certainly prompt
+you to carry out some edits that you’d otherwise overlook. And when you
+carry them out, they become yours. You start a good habit. You add to
+your repertoire as an editor.
+
+Exercises
+Basic
+Take a short legal memo (two to five pages) that you or someone else has
+written, and work through the LawProse Editing Method. First, type it word
+for word into the computer. Then work through the edits step by step. Create a new draft after each stage. If you’re part of a writing group or class,
+make a copy of your before-and-after versions for each colleague.
+Intermediate
+In a real-estate formbook, find a short lease or other contract to which you
+can apply the LawProse Editing Method. First, type it word for word into
+the computer. Then work through the edits step by step. Create a new draft
+after each stage. If you’re part of a writing group or class, make a copy of
+your before-and-after versions for each colleague.
+
+139
+
+140
+
+Part Five. Methods for Continued Improvement
+
+Advanced
+Take a substantial document that you’ve written—such as a term paper
+or law-review note—and work through the LawProse Editing Method. Be
+systematic: carry out only one type of edit at a time. If you’re part of a
+writing group or class, be prepared to discuss what this experience was like
+for you—and what (if anything) you learned about editing.
+
+§ 48. Learn how to find reliable answers to questions of grammar
+and usage.
+Every practicing lawyer is, by the very nature of the job, a professional
+writer. Let’s think for a moment about these two things: being a lawyer
+and being a professional writer.
+What makes a lawyer a lawyer? The answer certainly isn’t that the lawyer knows all the law in a given jurisdiction. That’s impossible. What
+makes a lawyer a lawyer is knowing, when a legal question arises, how to
+go about finding the answer—if there is one. Lawyers don’t purport to give
+off-the-cuff answers without hitting the books. Anyone who does that
+probably won’t remain a lawyer very long.
+But if lawyers know about hitting the books on legal questions, what
+happens when a language question arises? Somebody asks whether it’s
+acceptable (or even desirable) to start a sentence with And or But, whether
+it’s wrong to end a sentence with a preposition, or some other grammatical or stylistic question. Where should the adverb go in relation to a verb
+phrase—inside or outside? Is splitting an infinitive always forbidden?
+Does data take a singular or a plural verb? What’s the preferred plural
+of forum? Unfortunately, many lawyers aren’t so fastidious about finding
+answers to these questions. They’re likely to feel satisfied with a seat-ofthe-pants approach. Yet even educated guesses about what the experts say
+are likely to be wrong.
+That’s why lawyers, of all people, need to know how to find the answers
+to questions of grammar and usage. Although most journalists generally
+know where to look, most lawyers are at a loss. Many might look in a
+book titled English Grammar, but most books bearing that title don’t answer the questions. Others would look at a primer such as Strunk and
+White’s Elements of Style (a superb weekend read), and still others would
+turn to the AP Stylebook or some other style manual. But on the finer
+points of grammar and usage, they’d come up empty.
+The vast majority, though, wouldn’t even crack a book: they’d give offthe-cuff answers based on half-remembered lessons from middle school.
+If they did this with legal questions, it would be prima facie legal malpractice. In writing, it’s literary malpractice.
+To avoid it, you’ll need to own some dictionaries of usage. Very simply,
+these are guides to grammar, usage, and style arranged in alphabetical
+order—according to well-known terms of grammar and usage. So if you
+want to know whether you can justifiably begin a sentence with And,
+look under that word; with But, look there; on split infinitives, see “split
+
+§ 48. Find answers to questions of grammar and usage
+
+infinitives”; on the placement of adverbs, see “adverbs”; on ending sentences with prepositions, see “prepositions.”
+If you’re at all serious about writing, you’ll need to own some usage
+guides. They’ll arm you with knowledge when language questions arise.
+Now before I tell you about various dictionaries of usage, a disclaimer
+is in order: I’ve written two of them. That’s not really surprising, given
+that the dictionary of usage has long been my favorite literary genre. I’m
+not saying that you should go out and buy my books: you can have a good
+usage library without them. Have a look at what’s available and judge
+for yourself.
+Although hundreds of usage guides have appeared over the years, the
+following five are among the most helpful. They appear in chronological
+order:
+H.W. Fowler, A Dictionary of Modern English Usage (Ernest Gowers
+ed., 2d ed. 1965). More than anybody else, Fowler perfected the modern dictionary of usage. The first edition appeared in 1926. Although
+he was largely unconcerned with American English—and had a peculiarly British style—he still has many useful things to say to modern
+writers. Among the classic entries are “battered ornaments,” “inversion,” “polysyllabic humour,” and “superstitions.” The last of these is
+about the commonplace but false notions of what it means to write
+well.
+● Theodore M. Bernstein, The Careful Writer (1965). For many years,
+Bernstein was an editor at The New York Times, and this book represents the culmination of his wisdom on writing and editing. With a
+light, wry touch, Bernstein provides guidance on such issues as “absolute constructions,” “one idea to a sentence,” “puns,” and “rhetorical
+figures and faults.” His introduction, entitled “Careful—and Correct,”
+should be required reading.
+● Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).
+This was the first dictionary of usage targeting legal writers. It discusses hundreds of usage problems that arise in law but not elsewhere.
+Among the entries worth consulting are “doublets, triplets, and
+synonym-strings,” “plain language,” “sexism,” and “words of authority.” There’s even an entry called “lawyers, derogatory names for.”
+● Wilson Follett, Modern American Usage: A Guide (Erik Wensberg ed.,
+2d ed. 1998). The book is a quite conservative guide to good usage. It
+has excellent essays on why good grammar matters, on journalese,
+and on the sound of prose. Follett was the first usage critic to take
+issue with the modern use of “hopefully” (to mean “I hope”). Originally published in 1966, this book was nicely updated in 1998.
+● Bryan A. Garner, A Dictionary of Modern American Usage (1998).
+This up-to-date usage guide quotes thousands of recent examples from
+newspapers, magazines, and books—with full citations. The most frequently cited grammatical bunglers are writers for The New York
+●
+
+141
+
+142
+
+Part Five. Methods for Continued Improvement
+
+Times. Although the book treats the traditional usage problems and
+has, for example, a full discussion of how every punctuation mark is
+used, it contains hundreds of entries on word-choice problems that
+older books omit.
+Whichever books you choose, keep them close at hand. Consult them.
+You’ll come to appreciate their guidance.
+No single usage guide has the final word. You’ll learn to judge for yourself the value of one writer’s guidance as compared to another’s. And as
+you browse through them (that’s inevitable), you’ll learn all sorts of things
+that you never dreamed (or is it dreamt?) of.
+If you want to improve your command of grammar and usage, browsing
+through dictionaries of usage is probably the easiest way—and the most
+enjoyable. You don’t have to study the subject systematically. Just read a
+little bit each day, for a few minutes a day. Try a usage guide as idle-time
+reading for a few weeks, and you’ll be on your way. That’s the way it has
+worked for many excellent writers and editors. You could join their ranks.
+
+Exercises
+Basic
+Correct the usage errors in the following sentences. Cite a usage guide that
+deals with the error in each sentence.
+●
+
+When Margot arrived, Rodney told her that David had laid down because of his pain.
+
+●
+
+Mrs. Clements testified that Kenneth was waiving the gun wildly and pointing it
+at Bill.
+
+●
+
+Counsel testified that because the testimony would have harmed her case, she opted
+to forego it for reasons of trial strategy.
+
+●
+
+Since the Oneida line of cases are now binding federal law in California, this Court
+is bound to follow them.
+
+●
+
+The cost of any arbitration proceedings will be born by the party designated by
+the arbitrators.
+
+●
+
+The gas would likely be inventory under the Idaho statutes defining the term, but
+these provisions might not apply since they do not effect Idaho taxable income.
+
+●
+
+Texas law prohibits the unjustified interference with a parties’ existing or prospective contractual relations.
+
+●
+
+For the reasons stated in Jones’s initial motion, Jones maintains that the Court’s
+August 27 order precludes Fillmore from preceding on count six in this action.
+
+●
+
+The laws of the State of Massachusetts (irrespective of its choice-of-law principals)
+govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the parties’ rights and duties.
+
+●
+
+Neither Mr. Robinson’s affidavit nor Plaintiffs’ deposition testimony carry the force
+of law.
+
+Intermediate
+Take two of the usage guides recommended here and find two others not
+mentioned. Be prepared to report on each guide’s answers to the following
+questions:
+
+§ 49. Gauge your own readerly likes and dislikes
+1. Is it ever permissible to split an infinitive? If so, when?
+2. Where should an adverb go in relation to a verb phrase? That is, not an infinitive,
+but a verb phrase.
+3. Is it grammatically correct to begin a sentence with And?
+4. Which is correct: self-deprecating or self-depreciating?
+5. What is elegant variation? Is it good or bad?
+6. What is a fused participle? Is it ever acceptable to use one?
+7. What is the difference between historic and historical?
+8. What is the difference between farther and further?
+
+Advanced
+Prepare a bibliography of ten usage guides, including at least three of the
+ones listed in this section. Write a one-paragraph comment on each book’s
+strengths and weaknesses.
+
+§ 49. Habitually gauge your own readerly likes and dislikes, as
+well as those of other readers.
+Most of us seem to have two sides of the brain that don’t communicate
+with each other: the writerly side and the readerly side. The writerly side
+is stuffed with rules. Do this; don’t do that. The readerly side generally
+isn’t rule-bound; it simply reacts positively or negatively to writing, often
+at a subconscious or semiconscious level. Over time, you can dramatically
+improve your writing by learning to monitor your readerly side: what do
+you like and dislike as a reader, and why?
+Start with a clear head—not with all the rules that you’ve heard over
+the years. Then use your critical sense. If you respond favorably to an
+argument, ask yourself: “What did I like about the way the argument was
+presented?” If you respond unfavorably, ask yourself what you disliked
+about the presentation.
+Every writer has a lot to learn from this process. If your instincts are
+sound—and they probably are—you can infer principles from these likes
+and dislikes. These principles will very likely be more reliable than the
+“rules” you remember from middle school.
+For several years in judicial-writing seminars, I’ve asked judges to record their readerly likes and dislikes. I ask them to put aside what they
+think as writers and merely to record what they do and don’t like about
+the legal material they read. Over time, the answers have been strikingly
+consistent. And because these answers are worth pondering, consider the
+list compiled from just one of these seminars, with almost every judge in
+the state of Delaware participating (see page 144). Notice that almost every quality mentioned in the left-hand column speeds up the delivery of
+information; almost every quality in the right-hand column, in one way
+or another, slows down the delivery.
+
+143
+
+Judges on Legal Writing
+Likes
+
+Dislikes
+
+Brevity
+Clarity
+Logical flow
+Clear issues
+Interesting writing
+Fluidity
+Informative headings
+Clean overall appearance
+Structured paragraphs
+Directness
+Issue & answer in first paragraph
+Practical writing
+Trustworthiness
+Succinctness
+Flowing prose; good transitions
+Clear divisions of thought
+Explanations
+Accuracy
+Honest, sincere writing
+Supporting rationale
+No footnotes
+Decisiveness
+Originality in presenting ideas
+Concise sentences
+Clear, concise statement of facts
+Outline style
+Short words
+Clear conclusions
+Conveying a sense of justice
+Instant clarity
+Storytelling
+Short, to-the-point style
+Simple sentences
+Clever phrases
+Well-put phrases
+Inspiring confidence about precise
+questions presented
+Understandable language
+Common sense
+Immediate identification of issues
+Logical organization
+Entertainment
+Footnotes for string citations
+Comprehensiveness
+Complex ideas stated simply & directly
+Footnotes properly and sparingly used
+Civil tone
+
+Verbosity
+Obscurity
+Clutter
+Failure to frame the question
+Long paragraphs
+Repetition
+Too many footnotes
+Run-on sentences
+Disorganized style
+Unnecessary material
+Unclear intentions
+Boring writing
+Latin terms; technical language
+String citations
+Poor grammar
+Overstatement; hyperbole
+Passive voice: who did what?
+Long decisions
+Boilerplate
+Complicated writing
+Long-winded philosophical discourse
+Stream-of-consciousness
+Quotations
+Incompleteness
+Witness-by-witness statement of facts
+Cases cited for the wrong proposition
+Footnotes, especially giant ones
+Long words
+Circuitous sentences
+Lengthiness
+Lack of closure
+Convoluted writing
+Spelling mistakes
+Disjointed ideas
+Cuteness; unprofessional manner
+Unnecessary detail
+Dancing around the issue
+Uninformative writing
+Overuse of procedural labels
+Writing you have to reread
+Impossibly small type
+Chattiness
+Distortions of fact or law
+Overcontentiousness
+Sentences broken up by citations
+Lazy writing
+“Clearly”
+
+Note: This survey was part of an Advanced Judicial Writing workshop for the Delaware judiciary. Fortytwo judges participated. The workshop took place in Rehoboth Beach on September 26–27, 1996.
+
+§ 50. Remember: good writing makes the reader’s job easy
+
+Exercises
+Basic
+Interview two law professors who don’t teach legal writing. Ask about their
+likes and dislikes in their on-the-job reading. Ask them to put aside what
+they do in their own writing and to focus exclusively on their readerly likes
+and dislikes. Prepare a composite similar to the one listed in this section. If
+you’re part of a writing group or class, bring a copy for each colleague.
+Intermediate
+Interview three practicing lawyers who have been members of the bar for at
+least ten years. Ask about their likes and dislikes in their on-the-job reading.
+Ask them to put aside what they do in their own writing and to focus exclusively on their readerly likes and dislikes. Prepare a composite similar to
+the one listed in this section. If you’re part of a writing group or class, bring
+a copy for each colleague.
+Advanced
+Do both the Basic and Intermediate exercises. Then write a short essay
+(1,000 to 1,500 words) reporting your findings.
+
+§ 50. Remember that good writing makes the reader’s job easy;
+bad writing makes it hard.
+Psychologically, the main quality that distinguishes good writers from bad
+ones is this: good ones have cultivated an abiding empathy for their readers, while bad ones haven’t. Good writers would no more write an opening
+sentence like the following one (from a memo) than they would shove
+people through a supermarket line:
+In an action pursuant to CPLR § 3213 upon a defaulted promissory note
+and guaranties, may the defaulting borrower’s defense that the lender failed
+to fund interest due under the note from unrelated interest reserves pertaining to two other separate and distinct loans, each being evidenced by
+separate and distinct notes and guaranties, act as a bar to summary
+judgment?
+
+It isn’t decent. Often, too, this type of obscurity is a cover-up: the writer
+isn’t sure what the case is really about.
+Achieving simplicity—without oversimplifying—involves a paradox.
+Writers fear simplicity because they don’t want to be considered simpleminded. In fact, though, there’s no better way to strike your reader as an
+intelligent, sensible writer than to simplify. Psychologically, in other
+words, there’s a gulf between writerly fears and readerly wants. You’ll need
+to bridge it.
+
+Exercises
+Basic
+Find a published judicial opinion that, in its opening paragraph, makes you
+feel stupid. Analyze why this is so. If you’re part of a writing group or class,
+bring a copy for each colleague and be prepared to discuss your example.
+
+145
+
+146
+
+Part Five. Methods for Continued Improvement
+
+Intermediate
+Find a published judicial opinion that, in its opening paragraph, makes you
+feel smart. Analyze why this is so. If you’re part of a writing group or class,
+bring a copy for each colleague and be prepared to discuss your example.
+Advanced
+Find a brief that, in its first few pages, makes you feel stupid. Rewrite the
+opener so that it would be immediately comprehensible to a generalist
+reader. If you’re part of a writing group or class, bring a copy of your beforeand-after versions for each colleague.
+
+appendix a
+
+How to Punctuate
+
+Punctuation is an elaborate cuing system by which you signal readers
+how to move smoothly through your sentences. Used properly, punctuation helps you achieve emphasis and clarity. Used improperly, it
+does just the opposite. In fact, punctuation problems are often a
+symptom of bad writing. As one authority observes, “most errors of
+punctuation arise from ill-designed, badly shaped sentences, and
+from the attempt to make them work by means of violent tricks with
+commas and colons . . . .”1 So learning punctuation is closely allied
+with learning to craft solid sentences. You can’t have one skill without the other. Hence the guidance below.
+1. Comma—7 common uses, 5 common misuses
+Using Commas
+1.1 Use a comma when you join two independent clauses with a coordinating
+conjunction (such as and, but, or, nor, yet, or so).
+● The United States is a common-law country, and its judges are common-
+
+law judges.
+● About a dozen lawyers were in the room together, and the discussion was
+
+complete and candid.
+● He entered a no-contest plea to possession of cocaine and drug parapher-
+
+nalia, but the court withheld adjudication and sentenced him to one year
+on probation.
+1.2 Use a comma after a transitional word or phrase (though not And or But),
+an introductory phrase (especially a long one), or a subordinate clause that
+precedes an independent clause.
+● Significantly, Moore has not filed a cross-appeal. (Transitional word.)
+● In the second Reynolds appeal, the majority opinion pointed out that ex-
+
+perts frequently rely on comparable sales when appraising the value of
+property. (Introductory phrase.)
+● When the court addresses the question of ambiguity, it must focus on the
+contractual language itself. (Subordinate clause.)
+1.3 Use a pair of commas to mark the beginning and end of a nonrestrictive
+phrase or clause—that is, either an appositive or a phrase or clause that
+gives incidental or descriptive information that isn’t essential to the meaning of the sentence.
+
+1. Hugh Sykes Davies, Grammar Without Tears 167 (1951).
+
+147
+
+148
+
+Appendix A. How to Punctuate
+● A police officer, who is trained to overcome resistance, is likely to escalate
+
+force until the arrestee cannot escape without using deadly force. (Nonrestrictive clause.)
+● Another authority, the court, has picked up some of the slack. (Nonrestrictive appositive.)
+● The right allegedly violated in this case, freedom of speech as protected
+by the First Amendment, is one of our most fundamental constitutional
+rights. (Nonrestrictive appositive.)
+1.4 Use a comma to separate items in a series—including the last and nextto-last.
+● The term “reasonable doubt” is not designed to encompass vain, imagi-
+
+nary, or fanciful doubts. (Include the comma before or.)
+● Jackson alleges that the October 2000 reassignment letter, the gag order,
+
+and the banishment order were implemented without affording her procedural due process. (Include the comma before and.)
+● The scientific method has proved extraordinarily useful in matters involving radar, ballistics, handwriting, typewriting, intoxication, and paternity.
+(Include the comma before and.)
+1.5 Use a comma to separate adjectives that each qualify a noun in parallel
+fashion—that is, when and could appear between the adjectives without
+changing the meaning of the sentence, or when you could reverse the adjectives’ order without affecting the meaning.
+● That is a simplistic, fallacious conclusion.
+● Routine, hasty processing of criminal cases did not begin with plea bar-
+
+gaining at all.
+● Wilson is a reserved, cautious person.
+
+1.6 Use a comma to distinguish indirect from direct speech.
+● Justice Scalia ended by saying, “The decision is an act not of judicial judg-
+
+ment, but of political will.”
+social workers provide a significant amount of mental-health
+treatment,” wrote Justice Stevens.
+● On the question of statutory interpretation, there is an apocryphal story
+about a celebrated Supreme Court Justice who remarked, “Because no
+legislative history is available on this point, we will have to look at the
+text of the statute.”
+● “Today,
+
+1.7 Use commas to separate the parts of full dates and addresses, but: (1) omit
+any comma before a ZIP code; (2) when writing just the month and the year,
+don’t separate them with a comma (July 2001); and (3) when writing the
+month, day, and year, omit the comma after the year if you’re using the date
+as an adjective (the November 20, 2000 hearing).
+● Since July 15, 1998, Samuel Keeling has lived at 29 Cherry Street, Port-
+
+land, Oregon 97203.
+● Pollock wrote to them in April 2000 but never again.
+● The court refused to reconsider its February 12, 1999 privilege order.
+
+Appendix A. How to Punctuate
+
+Preventing Misused Commas
+1.8 Don’t use a comma between a subject and its verb.
+● Not this: The use of the terms “irrebuttable presumption” and “conclu-
+
+sive presumption,” should be discontinued as useless and confusing. But
+this: The use of the terms “irrebuttable presumption” and “conclusive
+presumption” should be discontinued as useless and confusing.
+● Not this: In that case, male teachers in a church-operated school, received
+a head-of-family salary supplement that was not provided to female heads
+of households. But this: In that case, male teachers in a church-operated
+school received a head-of-family salary supplement that was not provided
+to female heads of households.
+● Not this: An insurance carrier or a union or union inspector, may be held
+liable under traditional tort concepts for the negligent performance of
+such an inspection. But this: An insurance carrier or a union or union
+inspector may be held liable under traditional tort concepts for the negligent performance of such an inspection.
+1.9 Don’t use a comma to set off a quotation that blends into the rest of the
+sentence.
+● Not this: If one doctrine is more deeply rooted than any other in constitu-
+
+tional adjudication, it is that the Supreme Court, “will not pass on questions of constitutionality unless such adjudication is unavoidable.” But
+this: If one doctrine is more deeply rooted than any other in constitutional
+adjudication, it is that the Supreme Court “will not pass on questions of
+constitutionality unless such adjudication is unavoidable.”
+● Not this: In lease cases, the related doctrine of constructive eviction has
+been held, “broad enough to include many different situations where the
+whole or a substantial part of the premises is rendered unfit for the purpose for which it was leased.” But this: In lease cases, the related doctrine
+of constructive eviction has been held “broad enough to include many
+different situations where the whole or a substantial part of the premises
+is rendered unfit for the purpose for which it was leased.”
+● Not this: The Clinton administration joined in the petition on grounds
+that the Second Circuit’s decision would promote, “postemployment
+blacklisting.” But this: The Clinton administration joined in the petition on grounds that the Second Circuit’s decision would promote “postemployment blacklisting.”
+1.10 Don’t use commas to set off an adverb that needs emphasis.
+● Not this: Defendants are, therefore, entitled to qualified immunity. But
+
+this: Defendants are therefore entitled to qualified immunity.
+● Not this: We, nevertheless, wanted to bring this to the Court’s attention.
+
+But this: We nevertheless wanted to bring this to the Court’s attention.
+1.11 Don’t use a comma in the second part of a compound predicate—that is,
+when a second verb has the same subject as an earlier one.
+● A good brief should address all the issues and analyze them intelligently.
+
+(No comma before the and because brief is the subject of analyze.)
+
+149
+
+150
+
+Appendix A. How to Punctuate
+● Quintanilla
+
+argued that Viveros had exculpatory information and
+charged the prosecutors with ignoring it. (No comma before the and because Quintanilla is the subject of charged.)
+● After surgery to his knee in May 1999, Rowe was first given light-duty
+assignment as a production planner but then was laid off in March 2000.
+(No comma before the but because Rowe is the subject of was laid off.)
+1.12 Don’t use a comma as if it were a strong mark—a semicolon, colon, or
+period.
+● Not this: One could view attendance at the football game as an alterna-
+
+tive promise by Y, however, it seems readily apparent that this alternative
+is not a promise for which X has bargained. But this: One could view
+attendance at the football game as an alternative promise by Y; however,
+it seems readily apparent that this alternative is not a promise for which
+X has bargained. Or this: One could view attendance at the football game
+as an alternative promise by Y. But it seems readily apparent that this
+alternative is not a promise for which X has bargained. (The word however, within a pair of commas, cannot connect two independent clauses;
+a semicolon or period is needed.)
+● Not this: The United Nations recognizes forced evictions as one of the
+root causes of international displacement of persons, “the two issues
+cannot be treated separately.” But this: The United Nations recognizes
+forced evictions as one of the root causes of international displacement
+of persons: “the two issues cannot be treated separately.” (The comma in
+the original sentence created a grammatical error known as a “comma
+splice”—joining two independent clauses with a comma.)
+2. Semicolon—2 uses, 1 misuse
+Using Semicolons
+2.1 Use a semicolon to unite two short, closely connected sentences.
+● In three-tier systems, the top court has tremendous discretion; it can usu-
+
+ally decide which cases to hear and which to reject.
+● One side must make an offer; the other side must accept it.
+● A person who has been wronged often wants to win a fight; the sublimated
+
+courtroom fight may furnish the means of relief.
+2.2 Use a semicolon to separate items in a list or series when (1) any single
+element contains an internal comma, (2) the enumeration follows a colon,
+or (3) the items are broken into subparagraphs.
+● The individual defendants live in four cities: Austin, Texas; Bellingham,
+
+Washington; Boston, Massachusetts; and Denver, Colorado.
+● The rationale is threefold: (1) since the declarant knows her own state of
+
+mind, there is no need to check her perception; (2) since the statement is
+of present state of mind, there is no need to check her memory; and (3)
+since state of mind is at issue, it must be shown in some way—and here,
+the declarant’s own statements are the only way.
+● To establish causation and intention in emotional-distress cases, the
+plaintiff is generally required to show that:
+(1) the plaintiff was present when the injury occurred to the other person;
+(2) the plaintiff was a close relative of the injured person; and
+
+Appendix A. How to Punctuate
+
+(3) the defendant knew that the plaintiff was present and was a close relative of the injured person.
+Preventing Misused Semicolons
+2.3 Don’t use a semicolon where a colon is needed—especially after a salutation.
+● Not this: Dear Sarah; . . . . But this: Dear Sarah: . . . .
+● Not this: Two major reforms took place; the overhaul of no-fault insurance
+
+and the enhanced oversight of insurance companies. But this: Two major
+reforms took place: the overhaul of no-fault insurance and the enhanced
+oversight of insurance companies.
+3. Colon—4 uses, 1 misuse
+Using Colons
+3.1 Use a colon to link two separate clauses or phrases when you need to indicate a step forward from the first to the second—as when the second part
+explains the first part or provides an example.
+● After two hours, they reconciled: the chef apologized, and the owner re-
+
+hired him with a $10 raise.
+● A trademark can be seen as an advertising idea: it is a way of marking
+
+goods so that they will be identified with a particular source.
+the stipulation did not extinguish Highland’s uncertainty about
+what it was buying: the precise scope of PetroLink’s compensatory and
+other duties remained in doubt.
+
+● Even
+
+3.2 Use a colon to introduce a list—especially one that is enumerated or broken down into subparagraphs.
+● Each conspirator may be liable for the crimes of all other conspirators if
+
+two conditions are satisfied: (1) if the crimes were committed in furtherance of the conspiracy’s objectives; and (2) if the crimes were a natural and
+probable consequence of the conspiracy.
+● The seller may do any of four things: (a) withdraw and terminate the contract, while remaining free to sell the property elsewhere; (b) force the
+buyer to pay the price through an action for specific performance; (c) sue
+for actual damages; or (d) retain any down payment made by the buyer as
+liquidated damages.
+● In the absence of an agreement to the contrary, the seller need not see that
+the goods reach the buyer but need only:
+(a) put the goods into the hands of a reasonable carrier and make a reasonable contract for their transportation to the buyer;
+(b) obtain and promptly tender any documents required by the contract or
+by trade usage to enable the buyer to take possession; and
+(c) promptly notify the buyer of the shipment.
+3.3 Use a colon to introduce a wholly self-contained quotation, especially a
+long one.
+● Although some believe that lower courts are strictly bound by precedent,
+
+no matter how ill-fitting the result, Judge Learned Hand opposed this
+view:
+
+151
+
+152
+
+Appendix A. How to Punctuate
+
+It is always embarrassing for a lower court to say whether the time
+has come to disregard decisions of a higher court, not yet explicitly
+overruled, because they parallel others in which the higher court
+has expressed a contrary view. I agree that one should not wait for
+formal retraction in the face of changes plainly foreshadowed. But
+nothing has yet appeared to satisfy me that the case at bar is of that
+kind. Nor is it desirable for a lower court to embrace the exhilarating
+opportunity of anticipating a doctrine that may be in the womb of
+time, but whose birth is distant; on the contrary, I conceive that the
+measure of its duty is to divine, as best it can, what would be the
+event of an appeal in the case before it.
+● In response to a public outcry over the Hinckley case, Congress substan-
+
+tially codified the McNaghten rules in statutory form:
+It is an affirmative defense to a prosecution under any federal statute
+that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect,
+was unable to appreciate the nature and quality or the wrongfulness
+of his acts. Mental disease or defect does not otherwise constitute
+a defense.
+● Molholt’s May 1 report states: “My first hypothesis was that if persons
+
+who were near the plant at the time of the accident can be shown to have
+chronic immunosuppression ten years later, then they must have been
+exposed to at least 100 rems during the accident.”
+3.4 Use a colon after the salutation in correspondence. (A comma is acceptable
+in informal letters.)
+● Dear Judge Reavley:
+● Dear Ms. Grogan:
+
+Preventing Misused Colons
+3.5 Don’t use a colon to introduce a quotation or list that blends into your sentence.
+● Not this: The real issue is what has been called: “the most difficult prob-
+
+lem in criminal procedure today.” But this: The real issue is what has been
+called “the most difficult problem in criminal procedure today.”
+● Not this: In this sense, there is much wisdom in the apparently extreme
+aphorism of Jefferson that: “every constitution naturally expires at the
+end of 19 years.” But this: In this sense, there is much wisdom in the
+apparently extreme aphorism of Jefferson that “every constitution naturally expires at the end of 19 years.”
+● Not this: The House Report stated that the purpose of the legislation was:
+to close the back door on illegal immigration so that the front door
+on legal immigration may remain open. The principal means of
+closing the back door, or curtailing future illegal immigration, is
+through employer sanctions. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens. And this,
+in turn, will deter aliens from entering illegally or violating their
+status in search of employment.
+● But this: The House Report stated that the purpose of the legislation was
+
+to close the back door on illegal immigration so that the front door
+on legal immigration may remain open. The principal means of
+
+Appendix A. How to Punctuate
+
+closing the back door, or curtailing future illegal immigration, is
+through employer sanctions. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens. And this,
+in turn, will deter aliens from entering illegally or violating their
+status in search of employment.
+4. Parentheses—4 uses
+4.1 Use parentheses to set off an inserted phrase, clause, or sentence that you
+want to minimize.
+● If we increase the punishment, some people (not everybody) will stop do-
+
+ing the deed from fear of punishment.
+● Once a child is born alive (assuming that the wife does not die in child-
+
+birth), the husband’s shared freehold is converted into a life estate in his
+own right in his wife’s freeholds.
+● Sony and Toyota, if they were American companies, would have hundreds
+of lawyers on their payroll at their beck and call on Wall Street. (Maybe
+their American subsidiaries do.) Lawyers in the United States do things
+that are not done—or not done by lawyers—in Japan.
+4.2 Use parentheses to introduce shorthand names.
+● In
+
+the Controlled Question Technique (“CQT”), the test method that
+polygraph examiners use most often, an examiner asks three types of
+questions: neutral, control, and relevant. (The quotation marks within the
+parentheses are optional. An informal survey suggests that judges prefer
+them.)
+● Serjeant Silk alleges that the City violated the Americans with Disabilities Act (ADA) by discriminating against him because of his sleep apnea.
+(Although quotation marks would be optional—(“ADA”)—they are less
+common and less desirable around well-known shorthand names.)
+● Petitioners Southeast Crescent Shipping Company and Southeast Crescent Terminal Company (collectively “Southeast”) are parties to a contract with the International Longshore Workers’ Association, Local 1492
+(“the Union”).
+4.3 Use parentheses around numbers or letters when you’re listing items in
+text.
+● This Court has reviewed orders not specified in the notice of appeal when
+
+(1) there is a connection between the specified order and unspecified order,
+(2) the intention to appeal the unspecified part is apparent, and (3) the
+opposing party is not prejudiced and has a full opportunity to brief the
+issues.
+● Ohio law recognizes a claim for invasion of privacy in a case of (1) the
+unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate
+concern, or (3) the wrongful intrusion into one’s private activities in a
+manner that outrages or shames a person of ordinary sensibilities.
+● The court must determine the propriety of the remark by considering the
+following factors: (a) the nature and seriousness of the statement; (b)
+whether defense counsel invited it; (c) whether the district court sufficiently instructed the jury to disregard it; (d) whether defense counsel had
+
+153
+
+154
+
+Appendix A. How to Punctuate
+
+the opportunity to respond to the improper statement; and (e) whether
+the weight of the evidence was against the defendant.
+4.4 Use parentheses to denote subparts in a citation—or, in a case citation, to
+give information about the court and the year.
+● Fed. R. Crim. P. 41(d).
+● 12 U.S.C. § 1821(d)(11)(A).
+● Southfork Sys., Inc. v. United States, 141 F.3d 1124 (Fed. Cir. 1998).
+
+5. Em-Dash (or Long Dash)—3 uses, 1 misuse
+Using Em-Dashes
+5.1 Use a pair of em-dashes to set off an inserted phrase that, because of what
+it modifies, needs to go in the middle of a sentence.
+● The Declaration of Independence, in its expressive force binding all “gov-
+
+ernments”—national, state, county, and city—doesn’t declare itself to be
+“law.”
+● The plaintiffs here—two young children and their parents—have sued the
+city for violations of their constitutional rights.
+● The argument is that testimony from Chancey—if she had given it—
+would have been enough to get those statements into evidence as prior
+recollections recorded.
+5.2 Use a pair of em-dashes to set off a parenthetical phrase that you want
+to highlight.
+● Accident law—the heart of the legal field we call torts—is basically the
+
+offspring of the 19th-century railroad.
+enumerated rights found in the Constitution and in our Bill of
+Rights—the first ten amendments—are insufficient to found a system
+broad and comprehensive enough for a really free people.
+● The majority—as Justice John Marshall Harlan pointed out in his dissent—brushed aside evidence of subhuman work conditions.
+● The
+
+5.3 Use an em-dash to tack on an important afterthought.
+● In 1992, it was reported that about 100,000 private security guards toted
+
+guns—more than the combined police forces of the country’s 30 largest
+cities.
+● Overtime parkers now have to pay a big fine and run around the city to
+reclaim their cars—a colossal nuisance.
+● The lawyers’ special province is not peopled with human beings in their
+full humanity, but with types—that is, with human beings only as they
+fit into legal categories.
+Preventing Misused Em-Dashes
+5.4 Don’t use more than two em-dashes in a sentence.
+● Not this: In the several matters involved in the Noia case, the Supreme
+
+Court denied certiorari four times—the first of these in 1948—before it
+finally decided the case 15 years later—in 1963. But this: In the several
+matters involved in the Noia case, the Supreme Court denied certiorari
+four times—the first of these in 1948—before it finally decided the case
+15 years later, in 1963.
+
+Appendix A. How to Punctuate
+● Not this: Normally there is no difficulty in ascertaining who is entitled
+
+to the property—but if there is difficulty—for example, because it isn’t
+known whether a missing beneficiary is alive or dead—the court may
+authorize the personal representative to distribute the estate on the assumption that a missing claimant is dead, or on some other reasonable
+assumption. But this: Normally there is no difficulty in ascertaining who
+is entitled to the property. But if there is difficulty—for example, because
+it isn’t known whether a missing beneficiary is alive or dead—the court
+may authorize the personal representative to distribute the estate on the
+assumption that a missing claimant is dead, or on some other reasonable assumption.
+6. En-Dash (or Short Dash)—1 use, 1 misuse
+Using En-Dashes
+6.1 Use an en-dash as an equivalent of to (as when showing a span of pages), to
+express tension or difference, or to denote a pairing in which the elements
+carry equal weight.
+● 233–34
+● love–hate relationship
+● contract–tort doctrines
+
+Preventing Misused En-Dashes
+6.2 Don’t use an en-dash in place of a hyphen or an em-dash.
+● Not
+
+this: The state–court action disposed of her wrongful–discharge
+claim. But this: The state-court action disposed of her wrongfuldischarge claim.
+● Not this: The court upheld the wage–and–hour laws. But this: The court
+upheld the wage-and-hour laws.
+● Not this: A knowledgeable bench can smooth the road for a sound–or a
+persuasive–argument. But this: A knowledgeable bench can smooth the
+road for a sound—or a persuasive—argument.
+7. Hyphen—2 uses, 2 misuses
+Using Hyphens
+7.1 Use a hyphen to connect the parts of a phrasal adjective—that is, a phrase
+whose words function together to modify a noun.
+● First-year law students are sometimes unready for their end-of-the-year
+
+doldrums. (First-year is a phrasal adjective modifying the noun phrase law
+students; end-of-the-year is a phrasal adjective modifying the noun doldrums.)
+● The court applied the common-law mirror-image rule. (Both common-law
+and mirror-image are phrasal adjectives modifying rule. When used as a
+noun phrase, common law is unhyphenated.)
+● The benefit-of-insurance clause and the waiver-of-subrogation clause were
+both held to be invalid because they conflicted with the plaintiff’s marinecargo insurance policy. (Benefit-of-insurance is a phrasal adjective modifying clause; waiver-of-subrogation modifies clause; marine-cargo modifies the noun phrase insurance policy.)
+
+155
+
+156
+
+Appendix A. How to Punctuate
+
+7.2 Use a hyphen when spelling out fractions.
+● Three-fifths of those present concurred.
+● One-third of the punitive damages were eliminated by remittitur.
+
+Preventing Misused Hyphens
+7.3 Don’t use a hyphen after a prefix unless (1) the solid form might be confusing (e.g., anti-intellectual), (2) the primary word is capitalized, as when it’s
+a proper noun (e.g., non-Hohfeldian), (3) the prefix is part of a noun phrase
+(e.g., non-contract-law doctrine), or (4) the unhyphenated form has a different meaning (e.g., prejudicial vs. pre-judicial).
+● Not this: The co-defendant was a non-practicing attorney. But this: The
+
+codefendant was a nonpracticing attorney.
+● Not this: The co-tenant was unable to collect the semi-annual payments,
+
+even with post-judgment garnishments. But this: The cotenant was unable to collect the semiannual payments, even with postjudgment garnishments.
+● Not this: The nonMarxist point of view ultimately prevailed. But this:
+The non-Marxist point of view ultimately prevailed.
+7.4 Don’t use a hyphen (or even a pair of hyphens) in place of an em-dash.
+● Not this: Frequently both sides will let a neutral third person - an arbitra-
+
+tor - make final decisions. But this: Frequently both sides will let a neutral
+third person—an arbitrator—make final decisions.
+● Not this: The correctional complex--the latest trend in federal corrections--is a series of several institutions on one enormous plot of land. But
+this: The correctional complex—the latest trend in federal corrections—
+is a series of several institutions on one enormous plot of land.
+8. Quotation Marks—6 uses, 2 misuses
+Using Quotation Marks
+8.1 Use quotation marks when you’re quoting a passage of 50 or fewer words.
+(Otherwise, set off the quotation.)
+● Vitalone’s supervisor told him that he would be “out the door” if he com-
+
+plained one more time about Plourde. (The writer is quoting the supervisor.)
+● Within earshot of both parents and pupils, Hennessy called the exhibition
+“disgusting” and the Cesaro painting “obscene” before leaving in the
+middle of class. (The writer is quoting Hennessy.)
+● A quarter-century ago, Justice Powell wrote: “The Government, as an employer, must have wide discretion and control over the management of its
+personnel and internal affairs.”
+8.2 Use quotation marks when (1) referring to a word as a word or a phrase as
+a phrase (although italics are better if you do this frequently), or (2) providing a definition.
+● The word “malice” contains an ambiguity.
+● Both
+
+circuit courts turned to the legislative history to determine the
+meaning of the phrase “value as of the effective date of the plan.”
+● “Joinder” means “the uniting of parties or claims in a single lawsuit.”
+
+Appendix A. How to Punctuate
+
+8.3 Use quotation marks when you mean “so-called” or “self-styled,” or even
+“so-called-but-not-really.”
+● Certain forms of expression have been described as “illusory promises.”
+
+(The quotation marks mean “so-called.”)
+● Jack Burke, a “cable troubleshooter,” questioned Veazey about the mes-
+
+sage. (Here the quotes mean “self-styled”; Burke calls himself a “cable
+troubleshooter.”)
+● Immense effort has been made to discover the “origin” of the concept of
+consideration, to construct the “correct” definition of consideration, and
+to express in words the true consideration “doctrine” by means of which
+the enforceability of informal promises can be determined. But there is
+no specific and definite “origin” to be discovered; no particular definition
+can be described as the only “correct” one; and there never has been a
+uniform “doctrine” by which enforceability can be deductively determined. (The quotation marks show that the writer questions the accuracy
+of the words.)
+8.4 Although quotation marks are traditionally used for titles of movies, songs,
+and poems (as well as articles), follow the standard form for legal citations.
+Consult the Bluebook (17th ed. 2000) or the ALWD Citation Manual
+(2000).
+● In the screenplay “Concealed,” Marty obtains information from an elderly
+
+retired city clerk who sells tomatoes.
+● In his article entitled “Supply-Side Journalism,” Seth Ackerman argues
+
+that the German welfare state has become so elaborate and labor costs so
+expensive that companies can’t afford new workers.
+● The wording was intended as an allusion to John Donne’s poem “Death
+Be Not Proud.”
+8.5 Use single quotation marks for quoted words within quotations.
+● In that case, the plaintiff saw the driver coming and attempted to flee, but
+
+he was unable to get out because “the door to the booth was ‘jammed and
+stuck,’ trapping the plaintiff inside.” (The court’s language goes from the
+door to inside, but the court has quoted testimony in the phrasing
+jammed and stuck.)
+● Judge Charles E. Wyzanski Jr. has observed of Justice Holmes: “His starting point was an awareness that ‘the provisions of the Constitution are
+not mathematical formulas having their essence in their form; they are
+organic living institutions transplanted from English soil.’” (Here the
+writer quotes Holmes’s words in addition to Wyzanski’s.)
+● “‘[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.’” (Here the writer quotes Wyzanski quoting
+Holmes, but without using any of Wyzanski’s words. It would be better,
+if possible, to quote Holmes directly—to find the original source and
+verify the quotation. Otherwise, this form is necessary. The citation will
+be to Holmes “as quoted in” Wyzanski’s book, or to Wyzanski “quoting
+Holmes.”)
+8.6 Place quotation marks correctly in relation to other punctuation: (1) periods
+and commas go inside; (2) colons and semicolons go outside; and (3) ques-
+
+157
+
+158
+
+Appendix A. How to Punctuate
+
+tion marks and exclamation points go either inside or outside, depending
+on whether they’re part of the quoted matter.
+● The police officer testified that Jensen seemed “nervous,” adding that at
+
+one point he seemed “jittery to the point of arousing a sense of alarm.”
+● The written review of Eversham’s performance stated that “well-thought-
+
+out analysis was lacking”; that his understanding of financial analysis was
+“a major weakness”; and that he had a “tendency to bulldoze people.”
+● Did Pullman really attribute the decline to “poor sales projections”? But:
+Pullman asked, “Did I really say that?”
+Preventing Misused Quotation Marks
+8.7 Don’t use quotation marks for a phrasal adjective.
+● Not this: This “declining interest rate” scenario seems unlikely. But this:
+
+This declining-interest-rate scenario seems unlikely.
+● Not this: According to the “fraud on the market” theory, if the market
+
+itself is defrauded by misrepresentations, then plaintiffs who relied on the
+integrity of the market price when buying securities have presumptively
+relied on those misrepresentations. But this: According to the fraud-onthe-market theory, if the market itself is defrauded by misrepresentations,
+then plaintiffs who relied on the integrity of the market price when buying securities have presumptively relied on those misrepresentations.
+8.8 Don’t use quotation marks merely to emphasize a word.
+● Not this: There is not “any” evidence of this behavior. But this: There is
+
+not any evidence of this behavior.
+● Not this: Although the Bertelsby Company “claims” to have been harmed,
+
+it has produced no evidence to date. But this: Although the Bertelsby
+Company claims to have been harmed, it has produced no evidence to
+date.
+9. Ellipsis Dots—3 uses
+9.1 Use three ellipsis dots to denote that you’ve omitted something from
+within a sentence.
+● “Statutes in most states . . . require the landlord to put the tenant in ac-
+
+tual possession of the premises at the beginning of the leasehold term.”
+(The quoter has deleted the phrase with but a few exceptions, which in
+the original was enclosed in a pair of commas.)
+● “The immediate claimants have to be viewed . . . as members of classes
+whose contours are by no means self-evident.” (The quoter has omitted
+the words in other words, which in the original were enclosed in a pair
+of commas.)
+● “In presenting a few of the recognized authority techniques . . . , the author tried to group and phrase them in a way that shows how many distinct aspects of a case or of a doctrine there are.” (The quoter has omitted
+the words at page 77, which in the original were enclosed in a pair of
+commas. The second comma is retained as specified in rule 1.2.)
+9.2 Use four dots—three ellipsis dots plus a period—when you’ve omitted
+something at the end of a sentence. (A space goes before the first dot.)
+
+Appendix A. How to Punctuate
+● “An arrest is neither a conviction of a crime nor even a final formal charge
+
+of a crime . . . .” (The original sentence continued with the words “but
+is merely an order holding a person in custody until he or she answers
+a complaint.”)
+● The court held that this “discrimination based on union activity constitutes an unfair labor practice . . . .” (The original sentence continued with
+the words “under NLRA §§ 8(a)(1) and (3), 29 USC §§ 158(a)(1) and (3).”)
+● “The 10-K reports of these companies made no reference to this investigation . . . .” (The original sentence continued with the words “but affirmatively asserted various other matters.”)
+9.3 Use four dots—a period plus three ellipsis dots—when you’ve omitted material following a sentence, but the quotation continues. (No space goes
+before the first dot.)
+● “Seeking the admission of video and photographs of a witness is hardly
+
+unusual. . . . [A]ttacking a witness’s demeanor, if relevant, is a fully acceptable and expected litigation tactic.” (The original passage reads: “Seeking
+the admission of video and photographs of a witness is hardly unusual.
+Although to seek the admission of this evidence solely so that the witness
+is made to appear ‘evil’ may cross the line, there is nothing in the record
+that shows this purpose. On the contrary, attacking a witness’s demeanor,
+if relevant, is a fully acceptable and expected litigation tactic.”)
+● “The American court system is complex. Each state runs its own separate
+system of courts; no two state systems are exactly alike. . . . What makes
+matters even more mixed up is the double system of courts in this country: state and federal.” (In the original passage, this additional sentence
+came where the ellipsis dots now appear: “The details of court structure
+can be quite technical and confusing, even to lawyers.”)
+● “The Council of State Governments has proposed, and a number of state
+legislatures have approved, three constitutional amendments. . . . These
+proposals, clearly a reaction against recent decisions of the Supreme
+Court, reflect a spirit of localism for whose counterpart we would have to
+look to the sectional struggles before the Civil War or even to the position
+of the states under the Articles of Confederation.” (The quoter has omitted
+a complete sentence where the ellipsis appears.)
+10. Apostrophe—2 common uses, 2 common misuses
+Using Apostrophes
+10.1 Use an apostrophe to indicate the possessive case.
+● The district court’s refusal to give a requested jury instruction is re-
+
+viewed for an abuse of discretion.
+● She insisted that she had had no knowledge of the methamphetamine
+
+concealed in the truck’s gas tank.
+● The staffers’ responsibility was to handle both agencies’ telephone calls,
+
+including the three calls that originated from the Lopezes’ home.
+10.2 Use an apostrophe to mark the omission of one or more characters, especially in a contraction.
+● You won’t drive the nail straight if you don’t hold it straight, and so also
+
+you won’t achieve an effective system of law unless you give some heed
+to principles of legality.
+
+159
+
+160
+
+Appendix A. How to Punctuate
+● Many lawyers use these estate-planning solutions, and many who don’t
+
+use them don’t understand why they don’t.
+● Back in the late ’80s, the claimant was stopped at two o’clock in the
+
+morning for driving under the influence.
+Preventing Misused Apostrophes
+10.3 Generally, don’t use an apostrophe to form a plural. (But dot your i’s and
+cross your t’s.)
+● Not this: The evidence showed the applicant’s intent to adopt a mark
+
+that suggests to purchaser’s a successful mark already in use by another.
+But this: The evidence showed the applicant’s intent to adopt a mark
+that suggests to purchasers a successful mark already in use by another.
+● Not this: The Smith’s will attend the Jones’ open house. But this: The
+Smiths will attend the Joneses’ open house.
+● Not this: In the 1990’s no zone is so intimate, personal, or private that
+it is immune from the staring eye of the law. But this: In the 1990s no
+zone is so intimate, personal, or private that it is immune from the
+staring eye of the law.
+10.4 Don’t drop necessary apostrophes.
+● Not this: Jean Forney then visited one of the hotels many shops. But
+
+this: Jean Forney then visited one of the hotel’s many shops.
+● Not this: Reynolds went immediately to the Johnsons house. But this:
+
+Reynolds went immediately to the Johnsons’ house.
+11. Question Mark—1 use, 1 misuse
+Using Question Marks
+11.1 Use a question mark after a direct question.
+● Does it make sense to talk about evolutionary change in the history
+
+of law?
+● When is there no right answer to a question of law?
+● In determining a contract’s “plain meaning,” should a court look to
+
+general linguistic usage in the nation, or in the particular locality?
+Should the court consider meanings attached to words by people in a
+particular occupation, religion, or ethnic group? Which meaning should
+be used if M and X are not members of the same group? Should this
+question be resolved on the basis of which party had superior knowledge, charging that party with knowledge of the meaning that the other
+side might attach to the language?
+Preventing Misused Question Marks
+11.2 Don’t use a question mark after an indirect question.
+● Not this: She asked whether anyone present had seen the accident? But
+
+this: She asked whether anyone present had seen the accident.
+● Not this: He wondered whether the weapon in question was the one he
+
+had confiscated from the athletic dorm? But this: He wondered whether
+the weapon in question was the one he had confiscated from the athletic dorm.
+
+Appendix A. How to Punctuate
+
+12. Exclamation Point—1 use, 1 misuse
+Using Exclamation Points
+12.1 Use an exclamation point after an exclamatory word, phrase, or sentence—especially when quoting someone else.
+● Before plunging into the sea, the captain shouted, “We’re going over
+
+now!”
+● Within seconds, there were cries: “Help! Man overboard!”
+
+Preventing Misused Exclamation Points
+12.2 Generally, don’t use an exclamation point to express your own surprise
+or amazement.
+● Not this: Yet they can’t support this argument! But this: Yet they can’t
+
+support this argument.
+● Not this: Despite this overwhelming precedent, the court held other-
+
+wise! But this: Despite this overwhelming precedent, the court held
+otherwise.
+13. Period—3 uses
+13.1 Use a period to end a sentence that is neither a question nor an exclamation.
+● European legal scholars make much of the distinction between public
+
+and private law.
+● But as many common-law scholars have pointed out, the distinction
+
+seems less and less relevant as time goes on.
+13.2 Use a period to indicate abbreviations such as Mr., Ms., Mrs., etc.
+● This theory was first put forward by Dr. Jurgen Schafer.
+● Though she had a Ph.D., she preferred to be called “Ms. Wheelock.”
+
+13.3 Put the period outside parentheses or brackets that enclose only part of
+a sentence, but inside parentheses or brackets that enclose a complete
+sentence.
+● The Court has upheld a statute prohibiting local casinos from advertis-
+
+ing in a way that encourages residents to visit the casinos (as opposed
+to encouraging tourists).
+● A will has no effect on joint-tenancy property because the will is purely
+a testamentary conveyance (effective only at death, at which time the
+decedent’s rights in the property evaporate).
+● A plaintiff who establishes negligence but not malice also has to provide competent evidence of actual damages. (This changes the common-law rule that damages would be presumed by law for injury to
+reputation and did not require proof.) Actual damages may be awarded
+not only for economic losses but also for injury to plaintiff’s reputation
+in the community and for personal humiliation and distress.
+
+161
+
+162
+
+Appendix A. How to Punctuate
+
+14. Brackets—3 uses, 1 misuse
+Using Brackets
+14.1 Use a pair of brackets in a quotation to enclose an editorial comment,
+correction, explanation, interpolation, substitution, or translation that
+was not in the original text.
+● “The action arose ex delicto [in tort], not ex contractu [from a con-
+
+tract].” (The quoter has supplied translations.)
+● Justice Rehnquist, for the Court, declared: “We hold that insofar as [the
+
+federal provisions] directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they
+are not within the authority granted to Congress.” (The quoted matter
+originally used the word they; the quoter has substituted the federal
+provisions.)
+● Maldanado is responsible for all “drugs [she] personally handled or anticipated handling and for drugs involved in additional acts that, being
+reasonably foreseeable by [her], were committed in furtherance of the
+conspiracy.” (The quoted matter originally used the words he and him—
+the pronouns used in the statute; the quoter has substituted she and
+her.)
+14.2 Use a pair of brackets around any character that you change in or add to
+quoted material.
+● The search-warrant requirement arose from the Founders’ understand-
+
+ing that “[p]ower is a heady thing, and history shows that the police
+acting on their own cannot be trusted.” (In the quoted material, Power
+began the sentence and was uppercase.)
+● The court also cautioned that any interpretation should guard against
+“chang[ing] the meaning, since this would go beyond mere interpretation.” (In the quoted material, the phrase was “We caution that courts
+must not change the meaning . . . .”)
+● As Justice Rehnquist said in dissent in Kassel, the Court’s present balancing approach “arrogate[s] to this Court functions of forming public
+policy, functions that, in the absence of congressional action, were left
+by the Framers of the Constitution to state legislatures.” (The quoted
+matter used the word arrogated; the quoter has changed the word to
+arrogates to fit the syntax.)
+14.3 Use a pair of empty brackets to show the deletion of part of a word.
+● The Supreme Court has repeatedly held that an essential function of
+
+the warrant is to “assure[ ] the individual whose property is searched or
+seized of the lawful authority of the executing officer, his need to
+search, and the limits of his power to search.” (The quoted material
+actually used the form assures.)
+● When a case becomes moot, the federal courts “lack[ ] subject-matter
+jurisdiction over the action.” (The quoted material actually used the
+singular lacks after the singular subject a federal court.)
+Preventing Misused Brackets
+14.4 Don’t use brackets in place of ellipsis dots when one or more words have
+been deleted without any replacement language.
+
+Appendix A. How to Punctuate
+● Not this: “Although [ ] Jackson need not show a significant injury, he
+
+must have suffered at least some injury.” But this: “Although . . . Jackson need not show a significant injury, he must have suffered at least
+some injury.” (Several words have been deleted: despite the foregoing arguments.)
+● Not this: “Several states provide by statute that compliance with applicable governmental statutes creates [ ] a presumption that the defendant exercised due care.” But this: “Several states provide by statute
+that compliance with applicable governmental statutes creates . . . a
+presumption that the defendant exercised due care.” (Several words have
+been deleted: some legal implications, most importantly.)
+15. Slash (Virgule)—4 uses, 1 misuse
+Using Slashes
+15.1 Use a slash to separate the numerator from the denominator in a fraction.
+● 1/4
+● 15/365
+
+15.2 In informal writing, use a slash as a shorthand signal for “per.”
+● 2,000/year
+● $100/hour
+
+15.3 In informal writing, use a slash to separate the elements in a date.
+● 11/17/58
+● 1/1/00
+
+15.4 In informal writing, use a slash to separate alternatives (but remember
+to avoid and/or).
+● The January/February issue is devoted to drafting better corporate docu-
+
+ments.
+● The employee/independent-contractor issue needs close consideration.
+● The
+
+violent/nonviolent nature of the threat is often a determining
+factor.
+
+Preventing Misused Slashes
+15.5 Don’t use a slash when an en-dash or a hyphen would suffice.
+● Not this: An essential element of the employer/employee relationship
+
+was lacking. But this: An essential element of the employer–employee
+relationship was lacking. (An en-dash works here because the employer
+and the employee aren’t the same.)
+● Not this: The lawyer/consultant worked for the company for no more
+than two months. But this: The lawyer-consultant worked for the company for no more than two months. (A hyphen works well here because
+lawyer and consultant refer to a single person.)
+
+163
+
+appendix b
+
+Four Model Documents
+
+1. Research Memorandum 165
+Steven C. Seeger
+2. Motion 173
+Michael A. Logan
+Michael L. Atchley
+3. Appellate Brief 182
+Beverly Ray Burlingame
+4. Contract 196
+Time Warner Telecom
+Tina G. Davis
+
+1. Research Memorandum
+
+MEMORANDUM
+TO: Weymouth Kirkland
+Howard Ellis
+FROM: Steven C. Seeger
+DATE: December 21, 1998
+RE: Evidence: Admissibility of Police Reports Containing Hearsay
+Question Presented
+In New York, a document is inadmissible when offered for its truth if it does
+not fall within an exception to the hearsay rule, or if it contains an opinion that
+the declarant would be unqualified to give in court. Two reports prepared by the
+McLean County Sheriff’s Office state that the car driven by Heather Grimsby,
+who has sued our client, slid off the road because of icy road conditions. Are the
+reports admissible?
+Short Answer
+Probably. They seem to fall within both the business-records exception and
+the public-documents exception to the hearsay rule. The doubtful point will be
+the rules governing documents that contain opinions. But these rules do not necessarily make the documents inadmissible because either of two points is probably true: (1) the officer adequately observed the site and was qualified to form
+an opinion; or (2) the report does not rise to the level of an opinion.
+Because we wish to introduce the reports into evidence, this memorandum
+will discuss three ascending hurdles that we must overcome to admit them: (1)
+authentication, (2) hearsay, and (3) opinions.
+Discussion
+1. Authentication
+We will need to authenticate the two police reports before the court can
+admit them into evidence. Fortunately, the procedure for authenticating official
+writings in New York is not complicated. Under the applicable New York statute, a properly attested copy of an official record is self-authenticating as long as
+we satisfy five elements: (1) the document must purport to be a copy of an official record; (2) a certificate must be attached to the copy; (3) the certificate must
+state that the signatory is a public custodian of official records; (4) the certificate must state that the document is a true and accurate copy of an original, official record; and (5) the certificate must bear a presumptively authentic signature and seal.1
+Our copy of the police reports doesn’t include an official certification. If we
+haven’t already done so, we will need to obtain a properly attested copy of the
+reports so that the authentication requirement will not bar their admission.
+2. Hearsay
+As out-of-court statements offered for their truth, the police reports are inadmissible unless they fall within one of the exceptions to the hearsay rule. Fortu1. N.Y. Civil Practice Law and Rules (“C.P.L.R.”) § 4540; see also Randolph N. Jonakait et al., New
+York Evidentiary Foundations 65 (1998).
+
+165
+
+166
+
+Appendix B. Four Model Documents
+
+nately, two possible exceptions arguably cover these reports—the businessrecords exception and the public-documents exception.
+A. Business-Records Exception
+The business-records exception is, by far, the most widely used avenue for admitting police records into evidence.2 Section 4518 of the N.Y. C.P.L.R. sets out
+the basic requirements of the business-records exception:
+(a) Generally. Any writing or record, whether in the form of an entry in a
+book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that
+act, transaction, occurrence or event, if the judge finds that it was made in
+the regular course of any business and that it was the regular course of
+such business to make it, at the time of the act, transaction, occurrence
+or event, or within a reasonable time thereafter. All other circumstances
+of the making of the memorandum or record, including lack of personal
+knowledge by the maker, may be proved to affect its weight, but they shall
+not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.
+Based strictly on the text of the statute, three prerequisites are necessary for
+this exception: (1) the report must have been made in the regular course of business (i.e., it must reflect a routine, regularly conducted business activity); (2) it
+must have been the regular course of business to make such reports (i.e., it must
+be made according to established procedures); and (3) the person must have
+made the report at or near the time of the recorded event.3 We must satisfy each
+of these requirements before the court will admit the police reports into evidence.
+The first challenge will be selecting a witness who can lay the necessary
+foundation. As the Court of Appeals noted in People v. Kennedy,4 the statute is
+“silent as to who, if anyone, must introduce a business record.” At least one
+thing is clear: the exception does not require that we call the author of the business record.5 This flexibility is especially welcome in our case, given that Officer Howard, the author of the report prepared at the witness scene, has since
+died. Although the death of Officer Howard does not prevent us from offering
+his report as a business record, we must present someone familiar with the office routine who can testify that accident reports are routinely made and that
+it is a regular business practice of the department to make such reports.
+If we can find a knowledgeable witness, I expect that we can meet all three
+requirements. Surely the preparation of accident reports is a regular practice
+2. See, e.g., Federal Ins. Co. v. Ramirez, 492 N.Y.S.2d 335, 338 (N.Y. Sup. Ct. 1985) (“Police reports
+are admissible pursuant to the business-records exception to the hearsay rule.”).
+3. See People v. Cratsley, 653 N.E.2d 1162, 1166 (N.Y. 1995).
+4. 503 N.E.2d 501, 506 (N.Y. 1986).
+5. See Johnson v. Lutz, 170 N.E. 517, 518 (N.Y. 1930) (“The purpose of the Legislature . . . was to
+permit a writing or record, made in the regular course of business, to be received in evidence, without
+the necessity of calling as witnesses all of the persons who had any part in making it . . . .”); Kennedy,
+503 N.E.2d at 506 (same); Gagliano v. Vaccaro, 467 N.Y.S.2d 396 (App. Div. 1983) (holding that a police
+report prepared by a police officer who subsequently died was inadmissible, not because of the officer’s unavailability, but because the information was provided by unidentified bystanders); see also
+Michael M. Martin et al., New York Evidence Handbook 833 (1997) (“CPLR 4518 does not require testimony from the person who prepared the business record.”); Robert A. Barker & Vincent C. Alexander,
+Evidence in New York State and Federal Courts 634 (1996) (“To establish these three requirements it
+is not necessary to call the person who actually made the record.”).
+
+1. Research Memorandum
+
+of the sheriff’s office, and I strongly suspect that such reports are prepared according to well-established procedures (as indicated by the use of a form, the
+type of information recorded, etc.). Moreover, the reports were certainly made
+at or near the time of the event—all the reports show that they were prepared
+within an hour or two of the accident.
+But the three requirements in the statutory text will not be the only obstacle. The Court of Appeals has added an additional wrinkle to the businessrecords exception in Johnson v. Lutz.6 The plaintiff in Johnson brought a wrongful-death action as a result of an automobile collision. To support his version of
+the accident, the defendant offered a report filed by an officer who had arrived at
+the scene shortly after the crash. The trial court admitted the report over the
+plaintiff’s objection.
+The Court of Appeals confronted the question whether the police report fell
+within the business-records exception. The court concluded that the report “was
+not made in the regular course of any business, profession, occupation or calling” because it included the statements of third parties who were under no business duty to provide accurate information.7 The court placed special importance
+on the fact that the police officer did not have personal knowledge of the events
+recorded in his report and that he obtained information from witnesses at the
+scene: “The policeman who made it was not present at the time of the accident.
+The memorandum was made from hearsay statements of third persons who happened to be present at the scene of the accident when he arrived. It does not appear whether they saw the accident and stated to him what they knew, or stated
+what some other persons had told them.”8 Even though the police officer was under a duty to record correct information, the court reasoned, the details of the
+accident came from bystanders who were under no business duty to report the
+accident accurately. The court ultimately concluded that the business-records
+exception does not cover police reports that are based on the observations of bystanders, because such informants lack the business duty of accuracy that is the
+very reason for the exception.9
+Although the court in Johnson used the “made in the regular course of any
+business” language as its springboard, the problem in Johnson was really one of
+double hearsay: the police report (hearsay) contained statements made by third
+parties (also hearsay). The business-records exception did not cover this additional level of hearsay because the informants were under no business duty to
+accurately describe how the accident happened. Because the informants had no
+business-related obligation to provide accurate information, their description
+of the accident lacked the special guarantee of reliability that justifies this and
+other hearsay exceptions.10
+Lower courts have attempted to sharpen the rule of Johnson in subsequent
+years, with varying degrees of success. The following is probably the most common recitation of the Johnson rule: “Police reports may be admissible as business records if the police officer was a witness to the events disclosed in the re6. 170 N.E. 517 (N.Y. 1930).
+7. Id. at 517.
+8. Id.
+9. See id. (observing that the exception “was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto”).
+10. The court did not consider whether another hearsay exception might have covered the statements made to the police officer (such as excited utterance, etc.).
+
+167
+
+168
+
+Appendix B. Four Model Documents
+
+cord or if the person giving the police officer the information contained in the
+report was under a business duty to relate the facts. Otherwise the facts recited
+in a statement may be proved by a business record only if the statement qualifies as a hearsay exception, such as an admission.”11
+The Johnson case has proved to be a serious bar to the admission of police reports. In more than a dozen recent cases, courts have held that particular police
+reports were inadmissible because the officer did not witness the accident, and
+because the reports contained statements by third parties who were under no
+business duty to provide accurate information.12 To say the least, “it is now well
+settled that a police accident report, which is based upon information given to
+the investigating officer by [third parties], is not admissible as a business
+record . . . .”13
+Still, the McLean County police reports should pass muster under a Johnson
+analysis. The press release from the McLean County sheriff’s office does include
+a second layer of hearsay because it records statements made by several deputies: “Sheriff’s Deputies state that Heather Grimsby . . . lost control of the vehicle she was driving due to the icy conditions.” But this statement plainly falls
+within the business-records exception because the deputies, like the sheriff,
+were under a business duty to provide accurate information about the accident.14
+The admissibility of the report prepared by Officer Howard (including the
+original report with the diagrams, and the supplemental report) is slightly more
+complicated. Unlike the press release from the sheriff’s office, the report from
+Officer Howard does not contain a second level of hearsay. The officer did not record or rely on the statements of third parties when preparing his report. In fact,
+all the parties had already left the accident site by the time Officer Howard arrived. The officer simply viewed the scene with his own eyes and recorded his
+personal observations. Because the patrolman did not rely on hearsay when preparing the business record, the report would not seem to present the sort of problem encountered by the Court of Appeals in Johnson.
+But I have slight concern about the admissibility of this report because there
+is some rather loose language in the caselaw that a court could misconstrue. For
+example, the court in Turner offered the following recitation of the businessrecords exception: “Police reports are admissible as business records if the reporting officer witnesses the accident or if the person who relayed the informa11. See Stevens v. Kirby, 450 N.Y.S.2d 607, 611 (App. Div. 1982).
+12. See Liguori v. City of New York, 672 N.Y.S.2d 916 (App. Div. 1998); Antonik v. New York City
+Hous. Auth., 652 N.Y.S.2d 33 (App. Div. 1997); Mooney v. Osowiecky, 651 N.Y.S.2d 713 (App. Div.
+1997); Aetna Cas. & Sur. Co. v. Island Transp. Corp., 649 N.Y.S.2d 675 (App. Div. 1996); Hatton v.
+Gassler, 631 N.Y.S.2d 757 (App. Div. 1995); Flores v. Pharmakitis, 618 N.Y.S.2d 293 (App. Div. 1994);
+Sansevere v. United Parcel Serv., Inc., 581 N.Y.S.2d 315 (App. Div. 1992); Conners v. Duck’s Cesspool
+Serv., Ltd., 533 N.Y.S.2d 942 (App. Div. 1988); People v. Dyer, 513 N.Y.S.2d 211 (App. Div. 1987);
+Turner v. Spaide, 485 N.Y.S.2d 593 (App. Div. 1985); Auer v. Bienstock, 478 N.Y.S.2d 681 (App. Div.
+1984); Stevens, 450 N.Y.S.2d 607; Murray v. Donlan, 433 N.Y.S.2d 184 (App. Div. 1980); Toll v. State of
+New York, 299 N.Y.S.2d 589 (App. Div. 1969).
+13. Mooney, 651 N.Y.S.2d at 714.
+14. See People v. Jackson, 338 N.Y.S.2d 760 (App. Div. 1972) (holding that a police report was admissible under the business-records exception even though the officer who prepared the report was not the
+officer who obtained the information); see also Michael M. Martin et al., New York Evidence Handbook 838 (1997) (“[I]f one police officer reports her observations to another officer who then records the
+information, and both are relating routine events in the course of regularly conducted activity, then a
+business duty is present and the record can qualify as a business record.”).
+
+1. Research Memorandum
+
+tion to the officer was under a business duty to do so.”15 Obviously, Officer Howard did not witness the accident, and he did not receive the information from a
+witness who was under a business duty to report information (or from anyone at
+all, for that matter). So a strict reading of Turner might lead a court to conclude
+that the report prepared by the officer is inadmissible.
+But this language should not create a genuine problem. What matters under
+the business-records exception is not whether the officer viewed the accident
+per se, but whether the officer had personal knowledge of the events that he
+recorded. In other words, the relevant inquiry seems to be whether the police
+officer gained knowledge of the subject of his report by direct observation or by
+talking with a collateral source. If the officer learned about the accident by discussing it with others, then the officer’s report itself depends on hearsay, and
+thus the source of the information must also fall within an exception or else the
+report is inadmissible. If, on the other hand, the police officer directly observed
+the facts that he recorded, then there is no second level of hearsay, and thus
+there is no additional bar to the admission of the report.
+The caselaw bears out the theory that the Johnson line of analysis is directed
+at whether the officer had personal knowledge of the events memorialized in
+the report. In Bracco v. Mabstoa, an officer who arrived at the scene of a slipand-fall accident recorded that the exit steps of the bus had slush on them and
+that the bus was on a steep incline.16 The court allowed the police report into evidence, even though the officer did not witness the accident, because the report
+was based on his personal observations.17 Similarly, the court in D’Arienzo v.
+Manderville allowed into evidence a police report that recorded the position of
+the cars immediately after an accident, even though the officer had not witnessed the collision itself: “[W]e note that the report was based on the personal
+observations of the scene by [the officer], not on hearsay statements, and made
+by a person who was under a business duty to make the report.”18
+In light of this caselaw, the Howard report should satisfy the requirements
+of the business-records exception even though he did not witness the accident.
+The report is based entirely on the officer’s direct observation of the crash site
+and does not rely on the statements of third parties. The Howard report, in
+other words, does not present the sort of double-hearsay problem encountered
+by the court in Johnson.
+B. Public-Documents Exception
+As an alternative, we could argue that the police reports satisfy the publicdocuments exception. Unlike the broad exception for business records, the statutory exception for public documents (§ 4520) is rather limited in New York:
+15. Turner, 485 N.Y.S.2d at 594 (emphasis added); see also Conners, 533 N.Y.S.2d at 942–43 (same);
+Stevens, 450 N.Y.S.2d at 611 (reciting the standard as whether the police officer “was a witness to the
+events disclosed in the record”).
+16. 502 N.Y.S.2d 158, 161 (App. Div. 1986).
+17. Id. (“The references with respect to both the slush present on the steps and the position of the
+bus were, furthermore, derived from the personal observations of the . . . police officer and were not
+hearsay elicited from some unknown informant.”).
+18. 484 N.Y.S.2d 171, 173 (App. Div. 1984); see also Stevens, 450 N.Y.S.2d at 611 (“The police reports . . . were inadmissible insofar as they contained hearsay statements relevant to ultimate issues of
+fact not within the personal knowledge of the sheriff deputies.”); Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts 634 (1996) (observing that the contents of a business record are admissible if “the maker of the record had personal knowledge of the matter recorded”).
+
+169
+
+170
+
+Appendix B. Four Model Documents
+
+“When a public officer is required or authorized, by special provision of law, to
+make a certificate or an affidavit to a fact ascertained, or an act performed, by
+him in the course of his official duty, and to file or deposit it in a public office of
+the state, the certificate or affidavit so filed or deposited is prima facie evidence
+of the facts stated.”19
+Admitting the police reports under this section may prove difficult.20 By its
+terms, the statute applies only to “a certificate or an affidavit,” which could be
+construed to exclude an investigatory report.21 But reports have been allowed under this provision in medical contexts.22 A bigger problem might be that § 4520
+applies only to records that are filed with “the state,” which the court might
+construe to exclude political subdivisions. These issues may help explain why
+no New York court has addressed whether police reports fall within the parameters of the statute.
+We may have more success if we argue that the reports satisfy the commonlaw exception, which was not superseded by statute.23 Under the common-law
+exception, a public document is admissible “when a public officer is required or
+authorized, by statute or nature of the duty of the office, to keep records of acts
+or transactions occurring in the course of his official duty.”24 Not many cases address the common-law exception, and I didn’t find any case that involved an accident report prepared by the police.25 But the McLean County police reports appear to satisfy all the requirements—police officers are “public officers” who
+are “required or authorized” to keep records of important events in the community, such as automobile accidents. If we lay an adequate foundation, we should
+be able to admit the reports under this common-law exception.
+3. Opinion
+Even if the police reports fall within one of the exceptions to the hearsay
+rule, the court will not admit them if they are excluded by some other evidentiary bar. The New York rules regarding opinions impose a significant but not insurmountable barrier to the admission of the McLean County police reports.
+Under New York law, a document is inadmissible if it contains opinions that
+the declarant would be unable to give on the witness stand.26 Courts have not
+been shy about barring police reports under this rule. In fact, courts have repeatedly excluded police reports that contained opinions on the grounds that the of19. N.Y. C.P.L.R. § 4520.
+20. See Michael M. Martin et al., New York Evidence Handbook 833 (1997) (noting that § 4520 is a
+“restrictive statute which has been strictly interpreted”).
+21. But see Kaiser v. Metropolitan Transit Auth., 648 N.Y.S.2d 248, 250 (Sup. Ct. 1996) (observing
+that “the admissibility of a government investigatory report under this provision has not been definitively addressed in New York”); Cramer v. Kuhns, 630 N.Y.S.2d 128 (App. Div. 1995) (same).
+22. See Broun v. Equitable Life Assurance Soc’y of the United States, 69 N.Y.2d 675 (1986) (admitting an autopsy report); People v. Brown, 634 N.Y.S.2d 84 (App. Div. 1995) (admitting a report from the
+Medical Examiner’s Office).
+23. See N.Y. C.P.L.R. § 4543 (“Nothing in this article prevents the proof of a fact or a writing by
+any method authorized by any applicable statute or by the rules of evidence at common law.”).
+24. People v. Michaels, 667 N.Y.S.2d 646, 648 (Crim. Ct. City of N.Y.C. 1997); see also Richard T.
+Farrell, Richardson on Evidence 688 (1995).
+25. See Kozlowski v. City of Amsterdam, 488 N.Y.S.2d 862 (App. Div. 1985) (holding that a report
+prepared by the Medical Review Commission of the State Commission of Corrections was admissible
+under the common-law exception); People v. Brown, 488 N.Y.S.2d 559 (Mad. County Ct. 1985) (holding
+that a police laboratory report fell within the common-law exception).
+26. Stevens, 450 N.Y.S.2d at 611–12.
+
+1. Research Memorandum
+
+ficer would not have been able to testify to that opinion in open court.27 Such
+cases generally arise when a police report contains an officer’s opinion as to the
+cause of the accident. Such a report is admissible only if the opinion was based
+on “postincident expert analysis of observable physical evidence,” and only if
+the officer was qualified to give such an opinion.28 Moreover, at least two courts
+have excluded police reports containing opinions as to ultimate issues of fact because that evidence invaded the jury’s exclusive province to decide factual
+issues.29
+The Murray case provides a useful example of the approach taken by New
+York courts.30 The trial court allowed the plaintiffs to present a report prepared
+by an officer at the scene, who concluded that the defendants were driving too
+fast and had failed to yield the right-of-way. Upon review, the appellate court
+held that the admission of the report was error because the movants had failed
+to prove both that the officer was qualified to give an opinion and that his opinion was based on an expert analysis of physical evidence.31
+Although courts in most cases exclude police reports that contain opinions, a
+few courts have reached results that favor our position. In Miller v. Alagna,32 the
+appellate court allowed a detective to testify that, in his opinion, the defendant’s
+vehicle had not struck the plaintiff. The court concluded that the officer was
+qualified to give such “postincident expert analysis” based on his 21 years of
+training and experience as a police officer.33 Although Miller dealt with live testimony, rather than a police report, the court’s holding is helpful because it establishes that a police officer may be qualified to give an expert analysis of an accident scene based on his years of service as an officer.34
+Based on this caselaw, we can expect that the plaintiffs will argue that the police reports are inadmissible because they give opinions about the underlying
+facts. In particular, the plaintiffs could object to language in each report that
+says that Heather Grimsby lost control of the vehicle “due to the icy road condition.” The Grimsbys could argue that, in this passage, the officer inserted an
+opinion about the underlying cause of the collision—evidence that must be excluded absent proof that the officer adequately studied the scene and that he
+was qualified to give such an opinion.
+We could respond in at least two ways. First, we could argue that this statement is not really an opinion, but rather a reasonable inference based on con27. See, e.g., Szymanski v. Robinson, 651 N.Y.S.2d 826, 827 (App. Div. 1996); Murray, 433 N.Y.S.2d
+at 190.
+28. See Szymanski, 651 N.Y.2d at 827; Hatton, 631 N.Y.S.2d at 758; Connors, 533 N.Y.S.2d at 943;
+Murray, 433 N.Y.S.2d at 190.
+29. See Van Scooter v. 450 Trabold Road, Inc., 616 N.Y.S.2d 129 (App. Div. 1994); Stevens, 450
+N.Y.S.2d at 611–12.
+30. 433 N.Y.S.2d 184.
+31. Murray, 433 N.Y.S.2d at 190; see also Szymanski, 651 N.Y.S.2d at 827 (holding that a police report, which concluded that the defendant’s car had collided with the plaintiff’s vehicle, was inadmissible because the movant offered no proof of the officer’s qualifications); Mancuso v. Compucolor, Inc.,
+567 N.Y.S.2d 694 (App. Div. 1991) (excluding a police report because the movant made no showing that
+the officer was qualified to testify as to the location of the accident); Van Scooter, 616 N.Y.S.2d at 130
+(excluding a police report that opined that the accident was caused by the decedent’s “inattention” because it invaded the province of the jury).
+32. 609 N.Y.S.2d 650 (App. Div. 1994).
+33. Id. at 651.
+34. See also D’Arienzo, 484 N.Y.S.2d at 173 (allowing the admission of a police report in which the
+officer concluded that the accident had occurred in the northbound lane).
+
+171
+
+172
+
+Appendix B. Four Model Documents
+
+crete facts that the officer directly observed at the scene.35 According to the accident reports, the highway was “ice covered” because of “freezing rain.” The
+Grimsby vehicle, traveling downhill in such conditions, failed to properly navigate a curve in the road, rotated 180 degrees (at least), and went off the roadway
+backwards. In light of the hazardous weather conditions, the rotation and location of the car, and the curvature and declining elevation of the road, the conclusion that the driver lost control because of the icy road conditions seems like a
+reasonable inference based on the facts, rather than an opinion that would require extensive analysis by an expert.
+Second, if the court were to conclude that the statement rises to the level of
+an opinion, we could argue that the officer adequately observed the scene and
+that he was qualified to render such an opinion. Proving that the officer adequately studied the site will be difficult because he is dead. But perhaps we
+could adequately support the point by focusing on the many details that he recorded. Also, we could present evidence that he was qualified to make such a
+conclusion based on his years of training and experience on the force.
+But even if we persuade the court that the opinion was based on an expert
+analysis of the facts that the officer was qualified to give, we may have trouble
+because of his unavailability. In Petition of Raymond Schaeffner,36 a purported
+creditor of an estate sought to admit into evidence a scientific report prepared
+by the local police department. The court concluded that the report qualified as
+a business record, but barred its admission because “that portion of the report
+containing the detective’s opinion must be stricken since the detective was unavailable for cross-examination.”37 If the plaintiffs argue this point, we may have
+the best success arguing that those isolated passages do not rise to the level of
+an opinion.
+Conclusion
+In sum, we have a good chance of admitting the McLean County police reports. The authentication of the reports will be simple, as long as we get a certified copy of the reports from their custodian. The hearsay rule should not be a
+barrier either, as long as we offer a foundation witness who can properly attest
+to each of the requirements. The rules regarding expert opinions may be a concern, but we may succeed if we argue that the reports do not contain opinions
+or, if they do, that the officer adequately studied the scene and was qualified to
+give an expert analysis of the cause of the accident.
+
+35. See Bogdan v. Peekskill Community Hosp., 642 N.Y.S.2d 478, 482 (N.Y. Sup. Ct. 1996) (observing that “[f]actual findings and inferences which reasonably flow therefrom are admissible”).
+36. 410 N.Y.S.2d 44 (Surr. Ct. 1978).
+37. Id. at 48. But see Hessek v. Roman Catholic Church of Our Lady of Lourdes in Queens Village, 363 N.Y.S.2d 297 (N.Y. Civ. Ct. 1975) (holding that a medical report was admissible even though
+the doctor was unavailable because a contrary holding “would be unconscionable”).
+
+2. Motion
+
+IN THE UNITED STATES DISTRICT COURT
+FOR THE EASTERN DISTRICT OF TEXAS
+SHERMAN DIVISION
+ACCESS YES!, INC. and
+SALLY BURTON,
+Plaintiffs,
+vs.
+
+PURLEY RESTAURANTS, INC.
+d/b/a THURGOOD’S,
+Defendant.
+
+§
+§
+§
+§
+§
+§
+§
+§
+§
+§
+§
+§
+
+CIVIL ACTION NO.:
+4:00-CV-368
+
+Defendant’s Motion for
+Summary Judgment and Brief in Support
+Summary
+In ruling on this motion, the court faces two issues:
+● A building that predates the ADA (1992) must remove architectural barriers
+
+only if the changes can be made “without much difficulty or expense.” Thurgood’s restaurant, built in 1982, has a raised bar that is visible to—and
+serves—everyone in the restaurant. Burton, a wheelchair-bound patron, demands access to the bar through either a lift ($60,000 in annual lost revenues)
+or a ramp ($496,000 in annual lost revenues). Is such an accommodation required?
+● Burton also demands that Thurgood’s enlarge the restrooms so that the toilet
+
+stalls—which are now individual tiled rooms—have a larger axis for the turning of wheelchairs. This measure would force the restaurant to close for four
+to seven days ($40,000 to $70,000 in lost revenue) to gut and renovate the restrooms ($50,000 to $80,000 in cost, depending on structural loads). Is such an
+accommodation required under the ADA?
+Plaintiff Sally Burton is the president of the other plaintiff, Access Yes!, Inc.,
+a watchdog group for people with disabilities. (The plaintiffs are collectively referred to here as “Burton.”) Burton seeks to have Thurgood’s remove various alleged architectural barriers from its restaurant in Plano, Texas. The restaurant
+was built a decade before the Americans with Disabilities Act (“ADA”) was enacted. When built, the restaurant was in full compliance with all laws and regulations then in effect.
+The ADA is principally directed to new construction, but it also requires existing facilities to remove architectural barriers to the extent that removal is
+“readily achievable”—that is, if it can be easily accomplished without much difficulty or expense.
+All but two of Burton’s complaints about the restaurant have been remedied:
+(1) increasing the size of a stall in the women’s restroom, and (2) providing alternative access (other than steps) to a raised bar area. Neither of those remedies is
+
+173
+
+174
+
+Appendix B. Four Model Documents
+
+readily achievable. The restroom stalls are permanently built in, and resizing
+them would mean completely gutting and rebuilding the entire restroom. Meanwhile, providing access to the bar would require a ramp 8 feet wide and 21 feet
+long. The restaurant would have to remove some 32 seats, at enormous cost to
+the restaurant, including extraordinary and ongoing lost revenue.
+The ADA does not require access to the raised bar because the same services
+and decor are provided in other, accessible areas of the restaurant usable by everyone.
+Since the restaurant has removed all the barriers to the extent readily achievable, and since removal of the remaining barriers is not readily achievable, Burton’s claims fail as a matter of law.
+The Material Facts
+In the complaint, Access Yes! asserts that it represents persons who have disabilities and who use wheelchairs.1 Its purpose is to “make businesses and governmental entities compliant with the Americans with Disabilities Act and . . .
+the Texas Accessibility Standards in the State of Texas.”2 Sally Burton, the president of Access Yes!,3 is unable to walk and uses a wheelchair.4
+The defendant, Thurgood’s, owns and operates casual-dining restaurants, including the Plano restaurant at issue here.5 Built in 1982, it has a bar area at its
+center.6
+Burton originally complained that the restaurant had various architectural
+barriers. She had four complaints: (1) no striped access aisle and no clear, accessible route to the building from the designated handicapped parking spaces;7 (2)
+no level landing at the front entry, and a threshold at the front entry that precluded entry by some people in wheelchairs;8 (3) an inadequate turning radius in
+the handicapped stalls in the restrooms, as well as inadequate hardware in those
+stalls;9 and (4) a bar area inaccessible to persons in wheelchairs because it can be
+reached only by going up three stairs.10
+Complaints #1 and #2 have since been resolved. First, Thurgood’s has modified its parking area to provide more handicapped parking, has added a striped
+aisle or lane from the handicapped parking area to the front entrance, and has
+added a curb cut and a ramp that is gently sloped and painted a color that contrasts with the parking lot and the sidewalk.11 Burton has admitted that the parking lot is now in compliance.12 Second, Thurgood’s has also altered the front
+
+1. Pls.’ Compl. ¶ 1.
+2. Deposition of Sally Burton, p. 10, lines 7–10 (App. 51) (part of the transcript of the Deposition of
+Sally Burton is attached at Appendix pages 49–58 and is incorporated herein for all purposes by this reference).
+3. Burton Dep. p. 10, line 14 (App. 51).
+4. Pls.’ Compl. ¶ 4.
+5. Deposition of Ronald Dumbarton, p. 8, lines 4–11 (App. 61) (part of the transcript of the Deposition of Ronald Dumbarton is attached at Appendix pages 59–66).
+6. Dumbarton Dep. p. 9, lines 7–9 (App. 62); Decl. of Bert Savo ¶ 3 (App. 44).
+7. Pls.’ Compl. ¶ 7.
+8. Id.
+9. Id.
+10. Id.
+11. Savo Decl. ¶ 3 (App. 44).
+12. Burton Dep. p. 32, line 16 through p. 33, line 14 (App. 52–53).
+
+2. Motion
+
+door to provide a separate, fully accessible entrance that is wide and well
+marked.13 Burton has agreed that the front entrance is now in compliance.14
+Part of complaint #3 has been remedied. Thurgood’s has changed the hardware in the handicapped stalls of the restrooms and has moved the water closet
+in each of those stalls so that it is an appropriate distance from each wall.15
+But Thurgood’s cannot mollify Burton on all aspects of complaint #3: it is
+impossible, as a practical matter, to increase the size of the handicapped stalls
+to enlarge the turning radius.16 The restroom stalls are not the typical ones in
+which a metal partition is simply placed between several toilets.17 Rather, each
+stall is a separate room within the restroom, constructed of permanent, floor-toceiling walls, with a vaulted ceiling that is made of hard cement plaster instead
+of wallboard.18 And the ceiling has recessed lighting built into it.19 Any attempt
+to increase the size of the handicapped stalls would require Thurgood’s to completely gut and rebuild all its restroom facilities.20 Such a project could require
+the restaurant to close for as many as four to seven days and would cost at least
+$50,000 to $80,000, depending on the structural loads encountered.21 The restaurant would lose about $10,000 per day if it were required to close.22 The ADA
+does not require Thurgood’s to perform this kind of extensive renovation, which
+is not “readily achievable.”
+As for complaint #4, Thurgood’s has found it impossible, or at least not
+readily achievable, to provide independent wheelchair access to the raised bar
+area. Burton has suggested that a platform lift should be installed, asserting that
+this would solve the alleged problem.23 But a platform lift would have to be operated by using a keyed switch that relies on positive, constant pressure.24 Such a
+device cannot be independently used by someone who, for example, is in a
+mechanical wheelchair and cannot use his or her hands to operate the keyed
+switch.25 Thurgood’s is not permitted to remedy one person’s problem by causing
+a problem for others, so it is not able to construct a wheelchair lift that would
+essentially discriminate against those who cannot use their hands.26 So platform
+lifts are not an acceptable solution (under these circumstances, anyway) as the
+sole means of accessibility to a raised area in a public accommodation.27 Further, although Thurgood’s has used platform lifts in other locations (in circumstances different from those presented here), it has found them not to be
+effective in providing independent access for disabled persons. Also, lifts are
+
+13. Savo Decl. ¶ 3 (App. 44–45).
+14. Burton Dep. p. 34, lines 1–11 (App. 54).
+15. Savo Decl. ¶ 3 (App. 44–45).
+16. Savo Decl. ¶¶ 3–4 (App. 44–45).
+17. Savo (App. 45); Affidavit of Bill Spears ¶ 8 (App. 3).
+18. Savo Decl. ¶ 4 (App. 45); Spears Aff. ¶ 8 (App. 3).
+19. Savo Decl. ¶ 4 (App. 45); Spears Aff. ¶ 8 (App. 3).
+20. Savo Decl. ¶ 4 (App. 45); Spears Aff. ¶ 8 (App. 3); Declaration of William E. Mottle ¶ 3 (App.
+24–25).
+21. Mottle Decl. ¶ 3 (App. 24–25).
+22. Declaration of John Attenborough ¶ 3 (App. 47–48).
+23. Burton Dep. p. 53, lines 18–24 (App. 55).
+24. Spears Aff. ¶ 12 (App. 4).
+25. Spears Aff. ¶¶ 2–13 (App. 4–5).
+26. Spears Aff. ¶¶ 2–13 (App. 4–5).
+27. Spears Aff. ¶¶ 11, 13 (App. 4–5).
+
+175
+
+176
+
+Appendix B. Four Model Documents
+
+unsightly, sometimes difficult to maintain, and potentially unsafe.28 And a platform lift could pose a serious problem in the event of a fire: if the platform lift
+were the only means of egress (as Burton has proposed), people with disabilities
+might not be able to leave quickly enough, since the lift must be operated by
+one person at a time.
+Since a platform lift will not solve the problem, the only other possible solution would be to construct a ramp to the bar area.29 But a ramp—a means of
+egress under the city building code—would have to comply with that code as
+well as the ADA.30 Under the combined requirements of the city code and the
+ADA, a ramp may have a slope no greater than one inch of rise for every foot of
+run.31 Since the elevation to get to the bar is 21 inches,32 a ramp to reach that
+height would need to be 21 feet long.33 Also, there must be a flat, level landing,
+at least six feet long, at the base of the ramp, and five feet long at the top. Therefore, at least 32 feet of floor space would be needed to construct the ramp.34 The
+only floor space that could conceivably be used for a ramp does not have enough
+space for a straight ramp of that length.35 This means that the ramp would have
+to have a full turnaround, with an intermediate landing area that is at least five
+feet long.36
+In addition, a ramp would have to be at least 44 inches wide, according to the
+city code.37 In this case, since the ramp would have to include a turnaround, it
+would be twice as wide as a straight ramp, meaning that it would be at least 88
+inches wide. Allowing for eight inches of sidewalls (four inches for each section
+of the ramp), the ramp would use a floor space that is at least eight feet wide.38
+Given the necessary length and width of a legal ramp, any such ramp would
+take up one complete section of the restaurant’s dining area, which now accommodates at least 32 patrons at a time.39
+The cost of constructing the ramp itself would be at least $20,000.40 And
+since each seat in the restaurant typically generates gross revenue of $15,500
+per year, the restaurant could lose annual gross revenues of $496,000 (based on
+the average sales per seat).41 Even if Thurgood’s could install the platform lift as
+Burton has suggested, the installation would cost at least $35,000 and would
+cause the restaurant to lose at least four seats.42 This loss in seating would result in annual lost sales of $62,000.43 And since Thurgood’s is a casual-dining
+restaurant with a multitude of serious competition, taking away seats—which
+
+28. Savo Aff. ¶ 5 (App. 45).
+29. Spears Aff. ¶ 14 (App. 5).
+30. Id.
+31. Spears Aff. ¶ 15 (App. 5).
+32. Id.
+33. Id.
+34. Id.
+35. Id.
+36. Id.
+37. Id.
+38. Spears Aff. ¶ 16 (App. 5–6).
+39. Id.
+40. Mottle Aff. ¶ 4 (App. 25).
+41. Attenborough Decl. ¶ 3 (App. 47).
+42. Savo Decl. ¶ 5 (App. 45); Mottle Decl. ¶ 4 (App. 25).
+43. Attenborough Decl. ¶ 3 (App. 47).
+
+2. Motion
+
+will increase customers’ waiting time for a table—might well cause the restaurant to lose customers forever.44 The effect on the business would be permanent—even catastrophic.45
+Despite Burton’s complaints, all the services offered at the bar are available to
+the general public throughout the restaurant.46 For example, a patron in a wheelchair, even if not seated in the bar area, can have an alcoholic beverage and can
+see the television screens that are on display throughout the restaurant.47 The
+video games that were formerly at the bar have been removed; they are no
+longer available anywhere in the restaurant.48 Thurgood’s ensures that the services available at the bar are made available throughout the restaurant, in all the
+seating areas.49 The restaurant has never received a complaint, other than this
+one, from anyone with a disability who claimed not to be able to enjoy any of
+the goods and services there.50
+Since the restroom stalls cannot reasonably be enlarged, the bar cannot reasonably be made accessible, and the bar services are available throughout the restaurant, Thurgood’s has removed as many barriers as are readily achievable.51
+Argument and Authorities
+A. The ADA does not require full access to existing buildings.
+Thurgood’s acknowledges that the ADA requires public accommodations to
+remove architectural barriers under certain circumstances. Although the restaurant at issue is a public accommodation, not every architectural barrier must be
+removed.
+Title III of the ADA generally grants rights to disabled customers to have access to businesses.52 It became effective in 1992.53 By that time, this restaurant
+was over ten years old. The ADA is directed mainly at new construction, and
+also contains various requirements for existing buildings that are remodeled.
+But this isn’t a case in which the design and construction of a new building is at
+issue, and is not even a case in which a modification to a building has invoked
+the requirements of the ADA. This case involves only the issue of the extent to
+which an existing building must be modified to remove some of the building’s
+attributes that are alleged to be architectural barriers.
+The ADA does require existing buildings to remove some architectural barriers, but not all such barriers. A business must remove architectural barriers
+only if doing so is “readily achievable.”54 That is, a barrier in an existing building must be removed only if the removal is “easily accomplishable and able to
+be carried out without much difficulty or expense.”55 The relevant regulations
+specify:
+44. Declaration of James Allen ¶ 4 (App. 43).
+45. Id.
+46. Allen Decl. ¶ 3 (App. 42).
+47. Id.
+48. Id.
+49. Id.
+50. Id.
+51. Spears Aff. ¶ 17 (App. 6).
+52. 42 USCA §§ 12181 et seq. (App. 67 et seq.).
+53. See, e.g., 42 USCA § 12182, Historical and Statutory Notes (App. 76).
+54. 42 USCA § 12182(b)(2)(A)(iv) (App. 74).
+55. 42 USCA § 12181(9) (App. 69); 28 CFR § 36.304(a) (App. 79).
+
+177
+
+178
+
+Appendix B. Four Model Documents
+
+A public accommodation shall remove architectural
+barriers in existing facilities . . . where such removal is
+readily achievable, i.e., easily accomplishable and able
+to be carried out without much difficulty or expense.56
+This requirement to change existing buildings is designed to be, and must be
+interpreted to be, less rigorous than the tests for accessibility to new buildings.57
+B. The proposed modifications of the restrooms and the bar are not
+readily achievable.
+In this case, the regulations show that the proposed changes in the restroom
+stalls and the elevated bar are not readily achievable. For instance, the ADA
+Accessibility Guidelines (“ADAAG”), promulgated by the U.S. Department of
+Justice, specifically approve, as an “alternative stall design,” the type of handicapped stalls currently used at the restaurant.58 The ADAAG and its related
+regulations serve as standards by which to measure compliance with the ADA.59
+Although the stalls might not comply with the ADA if they were being built
+today, they fully complied with the law that existed when they were built, and
+because they qualify as an alternative stall design, they comply with current
+law.60
+The regulations also speak to the issue of the elevated bar:
+[I]n alterations, accessibility to raised or sunken dining
+areas, or to all parts of outdoor seating, is not required
+provided that the same services and decor are provided
+in an accessible space usable by the general public and
+are not restricted to use by people with disabilities.61
+Here, the summary-judgment evidence shows that the services provided by the
+bar are available to everyone throughout the restaurant.62
+The Department of Justice’s section-by-section analysis of the ADA states
+even more clearly that a “public accommodation would generally not be required to remove a barrier to physical access posed by a flight of steps, if removal would require extensive ramping or an elevator.”63 In fact, the Department of Justice’s analysis provides a strikingly relevant example:
+
+56. 28 CFR § 36.304(a) (App. 79).
+57. U.S. Department of Justice’s Section-by-Section Analysis of the ADA, 28 CFR pt. 36, app. B,
+§ 36.304, at 608 (“28 CFR app. B”) (App. 90).
+58. Spears Aff. ¶ 9 (App. 3); ADA Accessibility Guidelines § 4.17.3 (28 CFR pt. 36, app. A, at 42
+(p. 531 of 28 CFR)) (App. 85).
+59. See, e.g., DeFrees v. West, 988 F. Supp. 1390, 1393 (D. Kan. 1997).
+60. ADA Accessibility Guidelines § 4.17.3 (28 CFR pt. 36, app. A, at 42 (p. 531 of 28 CFR)) (App.
+85).
+61. ADA Accessibility Guidelines § 5.4 (28 CFR pt. 36, app. A, at 59 (p. 549 of 28 CFR)) (App. 87).
+62. Allen Decl. ¶ 3 (App. 42).
+63. 28 CFR app. B § 36.304, at 609 (App. 91).
+
+2. Motion
+
+Thus, where it is not readily achievable to do, the ADA
+would not require a restaurant to provide access to a
+restroom reachable only by a flight of stairs.64
+So the ADA would certainly not require a restaurant to provide such access to a
+bar when, as in this case, it is not readily achievable and the bar’s services are
+available throughout the restaurant.
+This is not a situation in which Thurgood’s is attempting to skirt an obligation that can be easily met. Thurgood’s has already shown its desire to accommodate the disabled, and to comply with the ADA. All Thurgood’s new restaurants are built to comply with the ADA.65 And it has taken significant steps to
+ensure access to the restaurant at issue and to remove as many architectural barriers as possible.66 But creating wheelchair access over the flight of steps to the
+bar, and increasing the size of the handicapped stalls in the restroom, is practically impossible and is not readily achievable.
+This case is similar to Slaby v. Berkshire,67 in which the plaintiffs were disabled members of a country club who could not access the locker room and certain other areas that were reachable only by stairs. The country club made alternative lockers available, but the plaintiffs demanded that the club install an
+elevator, at a cost of $80,000. The court held that the elevator was not required.
+The analysis admittedly centered on a different section of the ADA (one dealing
+with elevators in two-story facilities), but the analysis is on point:
+A court order to build an elevator is not necessary because . . . only 300
+of the 10 million golfers in the United States use wheelchairs, and the
+adapted . . . facilities are sufficient to discharge the Club’s obligations under the ADA.68
+Similarly, in this case, Thurgood’s has made sufficient alternative arrangements.
+And requiring the extreme expense of the requested modifications is unnecessary, would be ineffective, and is not required under the ADA.
+The type of operation Thurgood’s engages in is also important.69 Thurgood’s
+is a restaurant, and Burton is, ultimately, complaining only about the bar. Those
+with disabilities can get through the door (the highest priority of the barrierremoval regulations).70 Once they are through the door, all the restaurant’s goods
+and services are available to them, including alcohol. Because of the nature of
+the facility, the drinks at the bar can easily be delivered, and often are delivered,
+to patrons at tables in other parts of the restaurant. The television screens at
+the bar are visible throughout the restaurant, and there are additional television
+screens throughout the facility. Hence, Burton is asking Thurgood’s to undertake
+severe measures, at great cost, so that the disabled will gain little or nothing.
+The ADA and its accompanying regulations simply do not require this.
+
+64. Id.
+65. Savo Decl. ¶ 7 (App. 46).
+66. Id.
+67. 928 F. Supp. 613 (D. Md. 1996), aff’d without opinion, 110 F.3d 60 (4th Cir. 1997).
+68. Id. at 616.
+69. 42 USCA § 12181(9)(D) (App. 70).
+70. 28 CFR app. B § 36.304 (p. 610 of 28 CFR)) (App. 92).
+
+179
+
+180
+
+Appendix B. Four Model Documents
+
+C. Thurgood’s provides its goods and services through alternative means.
+Having proved that the requested barrier removal is not readily achievable,
+Thurgood’s appreciates that it must make its goods and services available
+through alternative methods.71 That is what makes the case unique: Thurgood’s
+has always made liquor readily available to all the tables in the restaurant. No
+one is left out—except, of course, those who are underage or cannot be served
+alcohol for reasons unrelated to this case. Thurgood’s “alternative” methods are,
+for all practical purposes, primary methods. People receive drinks at their tables
+all the time without showing a desire to go to the bar. Since relocation of the
+activity is an acceptable alternative means of access,72 Thurgood’s bar services
+comply with the law.
+D. Burton’s state-law claims also fail as a matter of law.
+The Texas Accessibility Standards essentially mirror the federal standards,
+with which Thurgood’s is in compliance. Therefore, Thurgood’s is in compliance
+with the state standards, and Burton’s claims must fail as a matter of law.
+Burton has brought an add-on claim under § 121.003(a) of the Texas Human
+Resources Code, claiming to have been denied the full use and enjoyment of the
+restaurant. But she has not shown, and cannot prove, that she has been denied
+the full use and enjoyment of the facility. Burton has admitted that she has
+never been denied access to the restaurant because of a disability.73 And once
+again, all the goods and services at the bar are available throughout the
+restaurant, to all patrons, including those with disabilities. The facility is
+accessible to, and functional for, persons with disabilities,74 and complies with
+the state and federal accessibility guidelines.75 So Burton’s claims under the
+Texas Architectural Barriers Act fail as a matter of law.
+E. Thurgood’s is entitled to summary judgment.
+Thurgood’s has shown that it is willing to comply—and has complied—with
+the ADA and state law in the design and construction of new facilities, and in
+the modifications it has made to the restaurant. It has also shown that the
+requested modifications to the restaurant and bar are not readily achievable.
+There are no genuine issues of any material fact. Thurgood’s is entitled to
+judgment in its favor, as a matter of law, and this case should be dismissed.
+Conclusion
+The ADA does not require Thurgood’s to undertake the onerous steps that
+Burton is demanding. Likewise, ADAAG and the other regulations obviate the
+proposed measures. The crux of this case is whether Thurgood’s should be
+forced to spend more than $35,000 and suffer lost business of about $62,000 per
+year to install a wheelchair lift that has proved ineffective in granting unassisted
+access to disabled people. Also, since the wheelchair lift will not fully work, the
+issue becomes whether Thurgood’s should be forced to wipe out an entire section of its restaurant—at a loss of nearly $500,000 per year—to install a ramp
+71. 42 USCA § 12182(b)(2)(A)(v) (App. 74); 28 CFR § 36.305(a) (App. 80).
+72. 28 CFR § 36.305(b)(3) (App. 80).
+73. Plaintiff Access Yes!, Inc.’s Responses to Defendant’s First Set of Requests for Admissions, Requests 9 and 10 (App. 98).
+74. See Tex. Rev. Civ. Stat. art. 9102, § 3(b).
+75. Spears Aff. ¶ 17 (App. 6).
+
+2. Motion
+
+over the stairs that lead to the bar. In its regulations, the Department of Justice
+tells us that a restroom, though accessible only by a flight of steps, need not be
+made accessible to wheelchairs if extensive ramping is necessary. Yet this case
+is about access to a bar whose goods and services are available to everyone
+throughout the restaurant. There is little if anything to be gained by installing a
+ramp to the bar (or a lift, for that matter), and the cost would be enormous. As
+for the handicapped stalls in the restrooms, they meet the Justice Department’s
+approved alternative-stall design, and are practically impossible to retrofit. Burton is asking for changes that are not readily achievable, and are therefore not required under the ADA or state law. This case should be dismissed, and Burton
+should be ordered to take nothing.
+Thurgood’s respectfully asks the Court to enter summary judgment in its favor, ordering that Burton take nothing by way of this suit, dismissing this case
+with prejudice, awarding Thurgood’s its costs and attorney’s fees in an amount
+to be determined later, and awarding Thurgood’s all other relief to which it is
+entitled.
+Respectfully submitted,
+Michael A. Logan
+Michael L. Atchley
+Attorneys for Defendant
+
+181
+
+182
+
+Appendix B. Four Model Documents
+
+In the
+United States Court of Appeals
+For the Fifth Circuit
+No. 97-1026
+Juan Alvarez, M.D.,
+Plaintiff–Appellant,
+vs.
+Lakeshore Medical Center, Robert L. Somerset, M.D., and
+Robert L. Somerset, M.D., P.A.,
+Defendants–Appellees.
+Appeal from the United States District Court
+for the Southern District of Texas,
+Houston Division
+BRIEF FOR APPELLEES
+Statement of Jurisdiction
+In the district court, federal-question jurisdiction existed under 28 U.S.C.
+§ 1331 because the case arose under 42 U.S.C. § 1981 and 42 U.S.C. § 1320a-7b.
+The district court had jurisdiction over the pendent state-law claims under 28
+U.S.C. § 1367(a).
+Appellate jurisdiction exists under 28 U.S.C. § 1291 because this appeal is
+from the district court’s final judgment.
+Statement of the Issues
+Issue 1: Waiver of Appellate Complaint
+Under federal and local rules, an appellant waives its complaint unless its
+opening brief provides record references, reasons for reversal, and supporting
+authorities. In his opening brief, Alvarez omits all record references, fails to
+articulate any understandable reason for reversal, and cites as authority a
+single jurisdictional statute. Has Alvarez waived his appellate complaint?
+Issue 2: No Evidence of Civil Conspiracy
+Federal and state law precludes doctors from soliciting or receiving money
+for patient referrals. Alvarez claimed that Somerset and his P.A. violated
+this law during a conspiracy to oust Alvarez from the P.A. or from a local
+hospital. Alvarez’s only proof was that (1) Somerset talked to another doctor
+about joint practice, and (2) Somerset’s father worked as a consultant. Does
+this evidence raise fact issues on illegality and on the other essential elements of conspiracy?
+Statement of the Case
+A. Course of Proceedings and Disposition in the District Court
+In June 1994, Dr. Juan Alvarez, an anesthesiologist, sued Lakeshore Medical
+Center, Dr. Robert Somerset, and Somerset’s professional association in a Texas
+
+3. Appellate Brief
+
+state court.1 Alvarez alleged that termination of his services contract with the
+P.A. gave rise to various tort, contract, and statutory claims under Texas law.2
+About a year later, Alvarez dismissed all his claims against Lakeshore, the
+hospital at which he had worked.3 At the same time, he amended his petition, for
+the first time alleging claims arising under federal statutes.4 Based on federalquestion jurisdiction, Somerset and the P.A. then timely removed this case to
+federal district court.5
+In early October 1995, Somerset and the P.A. reported in a case-management
+plan that they were preparing a summary-judgment motion.6 Later that month,
+the trial court entered a docket-control order setting January 5, 1996, as the deadline for joining new parties.7
+In March 1996—almost two years after filing suit and three months after the
+deadline to join new parties—Alvarez again tried to amend his pleadings.8 This
+time, he sought to add a new RICO claim and a new defendant, Somerset’s father.9
+The trial court denied that amendment as untimely and unfairly prejudicial to
+the defendants.10 On appeal, Alvarez does not challenge the trial court’s denial of
+his motion to amend.11
+In April 1996, Somerset and the P.A. moved for summary judgment on all six
+of Alvarez’s claims.12 After a response, a reply, and supplemental briefing, the trial
+court granted summary judgment on all six claims.13 While Alvarez’s brief is less
+than clear, he appears to appeal the court’s decision on only one of those claims—
+civil conspiracy.14
+B. Statement of Facts
+In November 1991, the P.A., of which Somerset was president and sole shareholder,15 agreed to become the exclusive provider of anesthesiology services at
+Lakeshore, a privately owned hospital.16 The contract between the P.A. and the
+hospital required that all anesthesiologists working there sign an attached Independent Contractor Agreement between the physician and the P.A.17 This
+agreement, which Alvarez signed,18 allowed either party to terminate the contract
+“with or without cause” after 90 days’ written notice.19
+1. See R. 68; see generally R. 55–68.
+2. See R. 57–64.
+3. See R. 84–85 (signed order of dismissal).
+4. See R. 41 & 47 ¶ 6 (alleging racial discrimination under 42 U.S.C. § 1981); R. 38 (alleging violation
+of federal medicare law under 42 U.S.C. § 1320a-7b(b)).
+5. See R. 74–77.
+6. See R. 177, 169.
+7. See R. 179.
+8. See R. 224–26 (Alvarez’s motion for leave to amend).
+9. See R. 224–26 (Alvarez’s first amended complaint in federal court).
+10. See R. 439–42.
+11. See R. 640 (notice of appeal, challenging only the September 24, 1996 final judgment); see also
+Brief of Appellant at 2.
+12. See R. 411–38 (summary-judgment motion); R. 28–48 (petition).
+13. See R. 624–37, 638.
+14. See Brief of Appellant at 2 (issue statement mentioning only this claim), 5–6 (argument mentioning only this claim).
+15. See R. 47 ¶ 4; R. 410 ¶ 1.
+16. See R. 407; R. 48 ¶ 2.
+17. See R. 405; R. 390.
+18. See R. 380.
+19. R. 386 ¶ 7.
+
+183
+
+184
+
+Appendix B. Four Model Documents
+
+Shortly after Alvarez began working, other doctors began complaining about
+his work.20 Indeed, some surgeons even refused to work with him.21 As a result,
+arranging and rearranging work schedules became difficult.22 On October 1, 1993,
+the P.A. notified Alvarez in writing that (1) his contract would end on January 4,
+1994, more than 90 days later, and (2) his clinical privileges at the hospital would
+be unaffected.23
+On appeal, Alvarez has apparently abandoned five of his six claims. The one
+claim that he mentions in his brief is civil conspiracy. While this claim is not
+explained, his trial-court complaint alleges that Somerset, the P.A., and the hospital conspired to exclude him from practicing anesthesiology or to cause the unlawful termination of his contract.24 The unlawful acts alleged to be at the heart of
+this supposed conspiracy were “unlawful payments” from other physicians who
+sought to practice with the P.A. and at the hospital.25
+Summary of Argument
+Appellant has waived all his arguments on appeal by filing a brief that:
+(1) provides no record references;
+(2) articulates no plausible or understandable grounds for reversal; and
+(3) cites no relevant caselaw, statute, or other authority.
+When an appellant broadly fails in this way to adhere to the basic briefing requirements of the federal and local rules, this Court consistently refuses to reach the
+merits of the appellant’s position, concluding that the party has waived all arguments on appeal. In some cases, the Court has also awarded damages under Rule
+38. At a minimum, then, this Court should conclude that Alvarez has waived his
+sole complaint on appeal.
+If this Court decides, however, to consider Alvarez’s unsupported arguments,
+Alvarez has failed on appeal, as he failed in the trial court, to raise any genuine
+fact issues on civil conspiracy—the sole claim referred to in his brief. Even if the
+unidentified federal and state statutes mentioned by Alvarez prohibit soliciting,
+as well as receiving, money for patient referrals, there is no evidence that either
+Somerset or the P.A. committed this, or any other, unlawful act—a required element of a civil-conspiracy claim.
+Specifically, there is no legal or factual support for the notion that Somerset
+acted unlawfully by discussing with another physician the possibility of a buy-in
+to Somerset’s practice. Similarly, the fact that another physician paid consulting
+fees to Somerset’s father for his assistance does not show that either Somerset or
+the P.A. acted unlawfully. Based on this record, the district court correctly granted
+summary judgment against Alvarez on his conspiracy claim, concluding that he
+had failed to raise a genuine fact issue on whether Somerset or the P.A. had committed any unlawful act.
+Finally, as Somerset and the P.A. argued in the district court, Alvarez has failed
+to raise a genuine fact issue on several other essential elements of a conspiracy
+claim. First, under Texas law, an entity such as a professional association cannot
+20. See R. 409 ¶ 5.
+21. See id.
+22. See id.
+23. See R. 377.
+24. See R. 34–35.
+25. R. 24.
+
+3. Appellate Brief
+
+conspire with its own agent. Yet the only alleged conspirators were the P.A. and
+its agent Somerset. Thus, Alvarez could not, and did not, show that two or more
+persons participated in the alleged conspiracy—an essential element of a conspiracy claim. Second, Alvarez could not, and did not, show the required meeting of
+the minds between the alleged participants, Somerset and the P.A. Third, the
+conduct challenged by Alvarez did not, as a matter of law, further the conspiracy’s
+alleged object—whether that object was terminating Alvarez’s contract or excluding him from practice at the hospital.
+Because the record raises no genuine fact issue on Alvarez’s civil-conspiracy
+claim, the district court correctly granted summary judgment to Somerset and
+the P.A. For any one of several alternative reasons, that judgment should be
+upheld.
+Argument and Authorities
+Standard of Review
+This Court reviews a summary judgment de novo, applying the same criteria
+used by the district court.26 Under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential
+claim elements.27 The rule mandates summary judgment if the plaintiff then fails
+to make a sufficient showing on each of those elements.28
+If the evidence is merely colorable, or is not sufficiently probative, summary
+judgment is proper.29 As the Supreme Court has made clear, a nonmovant cannot
+raise a genuine fact issue merely by showing “some metaphysical doubt” about
+the facts.30 If the record as a whole could not lead a rational fact-finder to decide
+for the nonmoving party, then no genuine fact issue remains for trial.31
+While the evidence is reviewed in the light most favorable to the nonmovant,
+summary judgment is still proper if, in this Court’s words, the nonmovant “rests
+merely upon conclusory allegations, improbable inferences, and unsupported
+speculation.”32 As this Court has observed, summary judgment “affords a merciful end to litigation that would otherwise be lengthy and expensive.”33
+Issue 1: Waiver of Appellate Complaint
+Under federal and local rules, an appellant waives its complaint unless its
+opening brief provides record references, reasons for reversal, and supporting
+authorities. In his opening brief, Alvarez omits all record references, fails to
+articulate any understandable reason for reversal, and cites as authority a
+single jurisdictional statute. Has Alvarez waived his appellate complaint?
+26. See Topalian v. Erhman, 954 F.2d 1125, 1131–32 (5th Cir. 1992); Dorsett v. Board of Trustees, 940
+F.2d 121, 123 (5th Cir. 1991).
+27. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348,
+1356 (1986); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
+28. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552 (1986).
+29. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511 (1986); Ruiz v.
+Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994).
+30. Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356; see also Little v. Liquid Air Corp., 37 F.3d 1069,
+1075 (5th Cir. 1994) (en banc).
+31. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356; Schaefer v. Gulf Coast Regional Blood Ctr.,
+10 F.3d 327, 330 (5th Cir. 1994) (quoting Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510).
+32. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993); Forsyth v. Barr, 19 F.3d 1527,
+1533 (5th Cir. 1994).
+33. Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir. 1986).
+
+185
+
+186
+
+Appendix B. Four Model Documents
+
+Alvarez has failed to provide this Court with any reason or authority for reversing the district court’s judgment. By failing to meet this Court’s most basic
+briefing requirements, Alvarez has waived any possible argument on appeal and
+has succeeded only in wasting the Court’s time.
+A. Alvarez’s brief violates all three of the minimum briefing requirements.
+1. Alvarez’s brief fails to cite the record.
+
+Alvarez has failed to cite any record references, thus violating the federal and
+local rules requiring them.34 Rule 28(a)(6) plainly requires that an appellant’s brief
+provide, along with its contentions, “citations to the . . . parts of the record relied
+on.”35 And as Local Rule 28 makes equally clear, every assertion “regarding matter
+in the record shall be supported by a reference to the page number of the original
+record where the matter relied upon is to be found.”36 Yet Alvarez’s scant brief—
+even when alleging facts—contains no references to the original record, which is
+almost four inches high.37
+The most egregious lack of record support appears in the factual section, in
+which Alvarez includes a string of unsupported allegations about “moneys paid,”
+“moneys solicited,” a consulting agreement between two nonparties, and a supposed “effort to extort money from incoming anesthesiologists.”38 While announcing that the summary-judgment evidence of civil conspiracy “is clear,” Alvarez conspicuously fails to cite even one page of that supposedly clear evidence.39
+2. Alvarez’s brief provides no reason for reversing the trial court’s judgment.
+
+The second profound failing of Alvarez’s brief is its lack of any comprehensible
+reason for reversing the trial court’s judgment. Instead of pointing out evidence
+establishing some unlawful act, Alvarez misstates the trial court’s conclusions.
+For example, the court’s opinion does not, as Alvarez contends, acknowledge evidence of “multiple solicitations” by Somerset or the P.A. from “various anesthesiologists.”40 Instead, the opinion merely notes that Somerset once discussed with
+Robins, another anesthesiologist, a possible buy-in to Somerset’s practice—an
+arrangement that was never again discussed and never effected.41 Meanwhile, the
+district court’s conclusion on conspiracy remains eminently sound: Alvarez failed
+to produce any evidence of any unlawful act, including any kickback or bribe for
+patient referrals.42
+3. Alvarez’s brief cites no authority supporting reversal.
+
+Finally, and perhaps most astonishingly, Alvarez’s brief fails to cite any relevant
+caselaw, statute, or other authority to support his position on appeal. Indeed, the
+only citation of any kind appears in Alvarez’s statement of jurisdiction.43 Again,
+Alvarez has directly violated the federal appellate rule requiring an appellant to
+
+34. See Fed. R. App. P. 28(a)(4), (6); Loc. R. 28.2.3.
+35. Fed. R. App. P. 28(a)(6).
+36. Loc. R. 28.2.3.
+37. See Brief of Appellant at 1–7.
+38. Id. at 4–5.
+39. Id. at 4.
+40. R. 626–27.
+41. See R. 627.
+42. See R. 626–27.
+43. See Brief of Appellant at 1–2.
+
+3. Appellate Brief
+
+include within the argument “citations to the authorities [and] statutes . . . relied on.”44
+While vaguely mentioning “state and federal statutes” in his two-page argument, Alvarez fails to even name these statutes and provides no discussion or
+analysis of them.45 Alvarez’s entire brief, which consists of slightly over six pages,
+cites not a single case from any court or any jurisdiction. It is thus even less
+acceptable than the brief criticized by this Court in Carmon v. Lubrizol Corp.—
+a brief that, unlike Alvarez’s, at least contained “cryptic” record citations and
+actually cited one case:
+Counsel for Carmon has caused this Court and the opposing party to
+waste time and resources, yet has filed nothing more than a five-page ”slapdash” excuse for a brief—a brief that fails to raise even one colorable challenge to the district court’s judgment. The brief starts with a Statement of
+Facts consisting only of cryptic citations to the record, then proceeds to an
+Argument consisting of selective quotes from Harris, and finally concludes
+with the bald assertion that the district court erred by failing to apply the
+standard reaffirmed in Harris—a patently inaccurate statement.46
+B. By omitting from his brief any argument, record citations, and authorities,
+Alvarez has waived his argument on appeal.
+As this Court has made clear, Rule 28(a) ”requires the argument section of the
+appellant’s brief to contain not only the party’s contentions but also its ‘reasons
+therefor, with citations to the authorities, statutes and parts of the record relied
+on.’”47 In the absence of such support, this Court consistently refuses to consider
+the merits of the argument.48
+While Alvarez mentions, without record reference, that he filed certain papers
+in the trial court, this Court has rejected efforts by parties to preserve appellate
+issues by asking the Court to refer to ”previously filed legal and factual arguments.”49 Indeed, in Yohey v. Collins, the Court denied such a request, even by a
+pro se appellant:
+Yohey has filed this appeal pro se. He requests, in part, the adoption of
+previously filed legal and factual arguments . . . . Yohey has abandoned
+these arguments by failing to argue them in the body of his brief. “Fed. R.
+App. P. 28(a)(4) requires that the appellant’s argument contain the reasons
+he deserves the requested relief ‘with citation to the authorities, statutes
+and parts of the record relied on.’” Although we liberally construe the briefs
+44. Fed. R. App. P. 28(a)(6).
+45. See Brief of Appellant at 5–7.
+46. Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994).
+47. Randall v. Chevron U.S.A., 13 F.3d 888, 911 (5th Cir. 1994).
+48. See, e.g., id. (declining to reach the merits “[i]n the absence of logical argumentation or citation
+to authority”); Besing v. Hawthorne, 981 F.2d 1488, 1492 n.9 (5th Cir. 1993) (refusing to address the
+merits because appellants had offered “no authority to support this theory, and they made no attempt to
+set forth any legal argument to persuade us of its correctness”); Gulf States Land & Dev., Inc. v. Premier
+Bank N.A., 956 F.2d 502, 508 (5th Cir. 1992) (finding waiver under Rule 28(a) because appellants had
+“failed to specify their contentions or identify the particular provisions of [the] statutes under which
+their claims [arose]”); Texas Mortgage Servs. Corp. v. Guadalupe Savs. & Loan Ass’n, 761 F.2d 1068,
+1073 (5th Cir. 1985) (citing cases for the principle that if appellant violates Rule 28(a) by failing to analyze
+and support its contentions, then waiver applies); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d
+223, 224 (5th Cir. 1981) (refusing to reach the merits because appellant’s brief addressed neither the
+merits nor the district court’s reasoning).
+49. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
+
+187
+
+188
+
+Appendix B. Four Model Documents
+
+of pro se appellants, we also require that arguments must be briefed to be
+preserved.”50
+Moreover, the required arguments and authority must appear in the appellant’s
+opening brief.51 The noncompliant appellant cannot somehow “undo” the waiver
+by complying with the rules only later, in the reply brief, because such belated
+compliance would leave the appellee with no fair opportunity to respond.52
+Furthermore, in some cases, this Court has concluded that the filing of a brief
+presenting “no plausible challenge to the district court’s judgment” may result in
+damages under Rule 38 for filing a frivolous appeal or under 28 U.S.C. § 1927
+for unreasonably and vexatiously multiplying the proceedings.53 In Carmon, for
+example, such sanctions were imposed against the appellant for filing “a fivepage ‘slap-dash’ excuse for a brief” that included inadequate record citations and
+inaccurate statements about the trial court’s application of the law.54
+At a minimum, Alvarez’s inadequate brief supports the conclusion that Alvarez has waived his sole appellate complaint. Moreover, if the Court concludes that
+damages are warranted against Alvarez for filing a frivolous appeal, then Rule 38
+empowers the Court, after reasonable notice, to award Somerset and the P.A. just
+damages and double costs.
+Issue 2: No Evidence of Civil Conspiracy
+Federal and state law precludes doctors from soliciting or receiving money
+for patient referrals. Alvarez claimed that Somerset and his P.A. violated
+this law during a conspiracy to oust Alvarez from the P.A. or from a local
+hospital. Alvarez’s only proof was that (1) Somerset talked to another doctor
+about joint practice, and (2) Somerset’s father worked as a consultant. Does
+this evidence raise fact issues on illegality and on the other essential elements of conspiracy?
+The sketchy argument in Alvarez’s brief appears to be limited to a complaint
+about the district court’s ruling on his civil-conspiracy claim, which—as Alvarez
+notes—is addressed on pages 10–12 of the court’s opinion.55 This claim is alleged
+in Count Five of Alvarez’s First Amended Petition.56 If this Court decides that it
+must reach the merits of Alvarez’s largely inscrutable position, Alvarez has failed
+to raise any genuine fact issue on his civil-conspiracy claim.
+Alvarez’s brief includes two vague, unsupported arguments on his conspiracy
+claim—neither of which raises any genuine fact issue for trial.
+A. Contrary to Alvarez’s first argument, the district court properly enunciated
+the legal standard and properly rejected Alvarez’s contentions on payments.
+In the three sentences that constitute Alvarez’s first argument, he misstates
+both the evidence and the trial court’s conclusions about it, departs from his pre50. Id. (citations omitted) (quoting Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990), and Price v.
+Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)).
+51. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).
+52. See id.; Conkling v. Turner, 18 F.3d 1285, 1305 (5th Cir. 1994).
+53. Carmon, 17 F.3d at 792–95; see Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1413
+(5th Cir. 1994).
+54. Carmon, 17 F.3d at 795.
+55. See Brief of Appellant at 6 (citing, without record reference, pages 10–12 of the district court’s
+opinion); R. 626–28 (opinion).
+56. See R. 34–35.
+
+3. Appellate Brief
+
+vious position on the alleged ”illegal act,” and then—on that shaky foundation—
+stacks his conclusion that the court has erred.57
+The district court plainly did not, as Alvarez contends, ”acknowledge evidence
+of multiple solicitations by one or both of the Somerset Defendants of money
+from various individual anesthesiologists.”58 Instead, the court explained that the
+only evidence involving any conduct by either defendant was evidence of one
+discussion between Somerset and Robins, another anesthesiologist, about a possible buy-in to Somerset’s practice.59 And as the district court observed, ”the arrangement was never again discussed,” and ”Dr. Robins made no payments to
+Somerset or to the Hospital.”60
+Moreover, the court did not find, as Alvarez imagines, that cash was paid to
+Somerset or the P.A. in ”one or two instances,” and the court did not ”surmise,” as
+Alvarez puts it, that these ”one or two” payments could be otherwise explained.61
+Instead, as the opinion makes clear, the court found that eight or nine months after signing a contract with the P.A., Dr. Loehr entered into a consulting agreement with Somerset’s father.62 As the court noted, however, no money was ever
+paid either to Somerset or to the P.A.63
+Alvarez further claims that the trial court ”failed to recognize” that soliciting,
+as well as receiving, money for patient referrals may constitute a statutory violation.64 But again, Alvarez has misread the opinion. As the trial court observed,
+the federal medicare statute ”prohibit[s] the knowing and willful solicitation of
+an illegal remuneration, including a kickback, bribe or rebate, in exchange for
+referring an individual to a person for the furnishing of any item of service.”65
+As much as Alvarez would like to find fault with the district court’s opinion,
+the court’s focus on payments came directly from Alvarez’s argument on summary judgment. The opinion accurately states Alvarez’s argument on one of the
+five essential elements of civil conspiracy and the defendants’ response to that
+argument: ”Defendants argue that they are entitled to summary judgment because Plaintiff cannot demonstrate the existence of any unlawful act. Plaintiff
+responds that the alleged payments of illegal moneys constitutes the unlawful
+act.”66 While Alvarez refuses to acknowledge it now, he consistently argued in the
+trial court that the actual payment of money constituted the requisite illegal act:
+● “The purpose or object of the conspiracy . . . was to exclude Dr. Alvarez from
+
+the practice of anesthesiology at the Hospital; the illegal act in furtherance
+of that stated purpose was acceptance of payments from incoming
+doctors . . . .”67
+● “Payments Made to the PA Are (1) Highly Relevant to A Determination of
+
+Summary Judgment And (2) Illegal.”68
+57. Brief of Appellant at 5–6.
+58. Id. at 5.
+59. R. 626–27.
+60. R. 627.
+61. Brief of Appellant at 5–6.
+62. See R. 626.
+63. See id.
+64. Brief of Appellant at 5; see 42 U.S.C. § 1320a-7b(b); R. 626.
+65. R. 626.
+66. R. 627–28 (citation omitted).
+67. R. 465 ¶ 34 (emphasis added).
+68. R. 465 ¶ H.
+
+189
+
+190
+
+Appendix B. Four Model Documents
+● “Payments by Incoming Physicians Are Highly Relevant.”69
+● “The making of such payments . . . is both illegal and highly relevant to a
+
+determination of whether Defendants are entitled to summary judgment in
+this case. Such payments show that . . . .”70
+● “Payments To Defendants Are Illegal.”71
+● “Tangible
+
+evidence exists that the PA solicited and received improper
+cash . . . .”72
+
+● “Any receipt of funds by Somerset, Jr., directly or indirectly, or by the PA from
+
+another anesthesiologist . . . would be a violation of this section [of the federal medicare statute].”73
+● “Any receipt of funds by Somerset, Jr., directly or indirectly, or by the PA from
+
+another anesthesiologist . . . would be a violation of this section [of a Texas
+healthcare statute].”74
+● “Any receipt of funds by Somerset, Jr., directly or indirectly, or by the PA from
+
+another anesthesiologist . . . would be a violation of this section [of a Texas
+penal statute].”75
+Based on these statements, the trial court correctly articulated Alvarez’s argument and then patiently explained why none of the summary-judgment evidence
+showed that Somerset or the P.A. received any unlawful payments.76
+Moreover, even if Alvarez were allowed on appeal to suddenly argue that the
+illegal act was the solicitation of money—consisting of an isolated discussion
+between Somerset and Robins about a possible buy-in to Somerset’s practice—
+that discussion could not serve as the illegal act underlying a civil conspiracy.
+Such a discussion is not a ”willful solicitation of an illegal remuneration” in
+exchange for a patient referral,77 and it does not violate any other pertinent statute. Indeed, physicians—like lawyers—frequently buy into an established practice without violating any statute or ethical rule.78 If such buy-ins are not illegal,
+then the mere discussion of one certainly cannot be illegal.
+B. Alvarez’s second argument, about consulting fees to a third party, raises no
+fact issue on whether Somerset or the P.A. committed any unlawful act.
+The three sentences that constitute Alvarez’s second argument have nothing
+to do with any conduct by either Somerset or the P.A., but instead relate to a
+consulting agreement between two third parties—Somerset’s father and another
+
+69. R. 465 ¶ H(i).
+70. R. 464–65 ¶ 35.
+71. R. 464 ¶ H(ii).
+72. R. 464 ¶ 36.
+73. R. 464 ¶ 36(a).
+74. R. 463 ¶ 36(b).
+75. R. 462–63 ¶ 36(c).
+76. See R. 626; id. at 352–76 (excerpts from depositions of Somerset and other anesthesiologists who
+worked with the P.A., all of whom testified that they had paid no money to either Somerset or the P.A.).
+77. 42 U.S.C. § 1320a-7b(b); see R. 626.
+78. See Herbert v. Newton Memorial Hosp., 933 F. Supp. 1222, 1225–26 (D.N.J. 1996); In re Enrique M. Lopez, M.D.S.C., 93 B.R. 155, 157 (Bankr. N.D. Ill. 1988).
+
+3. Appellate Brief
+
+physician named Loehr.79 In his brief, Alvarez neglects to mention that five
+months before granting summary judgment, the court had denied his belated motion to add Somerset’s father as a defendant.80
+Now, as in the trial court,81 Alvarez ignores his failure to plead that Somerset’s
+father played any role in the alleged conspiracy. In his complaint, Alvarez alleged
+that the only conspirators were Somerset, the P.A., and the hospital.82 The record,
+however, contains no evidence that Somerset’s father accepted any payments on
+behalf of those alleged conspirators. Nor is there any evidence that Somerset’s
+father played any role in terminating Alvarez’s contract or hospital privileges.
+As in the trial court, Alvarez relies on sheer speculation when he suggests that
+the consulting fees paid by Loehr to Somerset’s father were a ”sham” or a ”pretext
+for otherwise unlawful payments.”83 Meanwhile, Alvarez ignores the fact that the
+only evidence about this consulting arrangement—an excerpt from Loehr’s deposition—shows that the purpose of the arrangement was for Somerset’s father, in
+exchange for fees, to share his experience and provide advice about specific
+cases.84
+As the Texas Supreme Court has explained, an alleged conspirator ”is not liable for an act not done in pursuance of the common purpose of the conspiracy.”85
+There is no evidence that these consulting fees were paid in furtherance of the
+alleged conspiracy’s purpose—which, according to Alvarez, was to exclude him
+from practice with the P.A. or at the hospital.86 Indeed, the record suggests the
+opposite: Loehr did not begin paying the consulting fees until eight or nine
+months after he had signed his own contract with the P.A.87 Thus, the only reasonable inference is that Loehr’s payments had nothing to do with displacing
+Alvarez or otherwise affecting his practice.88
+C. Alvarez fails to even mention other missing elements of his claim—each of
+which provides an alternative basis for upholding the judgment.
+This Court can affirm the summary judgment on any one of the several different grounds raised below.89 Yet Alvarez fails to even mention the other challenged
+elements of his civil-conspiracy claim—elements that were raised by Somerset
+and the P.A. in the district court.
+Under Texas law, the five essential elements of civil conspiracy are:
+(1) two or more persons;
+(2) an object to be accomplished;
+(3) a meeting of the minds on the object or course of action;
+79. See Brief of Appellant at 6.
+80. See R. 224–26 (Alvarez’s April 1996 motion for leave to amend); R. 177, 169 (October 1995 casemanagement plan, in which Somerset and the P.A. state that they are preparing a summary-judgment
+motion).
+81. See R. 465–66.
+82. See R. 35.
+83. Brief of Appellant at 6.
+84. See R. 443–45.
+85. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 928 (Tex. 1979).
+86. See id.; R. 34–35; R. 465 ¶¶ 34–35.
+87. R. 444–45.
+88. R. 444.
+89. See Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355 n.3 (5th Cir. 1986);
+Davis v. Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir. 1976).
+
+191
+
+192
+
+Appendix B. Four Model Documents
+
+(4) one or more unlawful, overt acts; and
+(5) damages as the proximate result.90
+As discussed above, the trial court concluded that Alvarez had failed to raise a
+fact issue on the fourth element—an unlawful, overt act.91 But other essential
+elements were lacking as well. Whether the alleged conspiracy’s purpose was to
+exclude Alvarez from practice or to cause the unlawful termination of his contract,92 the record raises no genuine fact issues for trial on several different elements of his conspiracy claim.
+1. Alvarez failed to show that two or more persons participated.
+
+Alvarez’s proof fails on the very first element of civil conspiracy: that two or
+more persons were involved. As courts applying Texas law have consistently held,
+an entity such as a professional association cannot conspire with itself.93 Thus, a
+conspiracy claim cannot be based on a meeting of the minds between an entity
+and its agents.94
+Alvarez could not, therefore, establish a legally cognizable conspiracy claim by
+showing that the P.A. had a “meeting of the minds” with Somerset—its president
+and sole shareholder.95 Instead, to sustain a conspiracy claim, Alvarez needed evidence of a meeting of the minds between Somerset or the P.A., on the one hand,
+and the hospital, on the other. There is no such evidence.
+Evidence of this essential element was similarly lacking in West v. Brazos
+River Harbor Navigation District.96 There, a federal district court in Texas granted
+a summary-judgment motion on a conspiracy claim because the plaintiff had
+failed to show that two or more parties were involved in the supposed conspiracy.
+The plaintiff alleged a civil conspiracy to terminate his employment with the
+Brazos River Harbor Navigation District. He claimed that the conspirators were:
+(1) the district; (2) people who were agents of the district; and (3) defendants not
+affiliated with the district.
+The trial court granted summary judgment in favor of the nondistrict defendants because the plaintiff had produced no evidence of a meeting of the minds
+between them and anyone associated with the district.97 As the court explained,
+summary judgment was appropriate for the district and its agents as well “because, as a matter of law, an entity such as the District cannot conspire with
+itself.”98
+Similarly, this record contains no evidence that the hospital played any role
+whatsoever either in terminating Alvarez’s contract with the P.A. or in allegedly
+excluding him from practice. And because the P.A. could not conspire with itself,
+summary judgment on the conspiracy claim was mandated for the P.A. and its
+agent Somerset.
+90. West v. Brazos River Harbor Nav. Dist., 836 F. Supp. 1331, 1339 (S.D. Tex. 1993) (citation omitted),
+aff’d, 32 F.2d 566 (table) (5th Cir. 1994).
+91. R. 627–28.
+92. R. 34–35; R. 465 ¶¶ 34–35.
+93. See West, 836 F. Supp. at 1340; Hankins v. Dallas Indep. Sch. Dist., 698 F. Supp. 1323, 1330 (N.D.
+Tex. 1988); Zentgraf v. Texas A & M Univ., 492 F. Supp. 265, 272–73 (S.D. Tex. 1980).
+94. See West, 836 F. Supp. at 1340.
+95. See id.
+96. See id.
+97. See id.
+98. Id.
+
+3. Appellate Brief
+
+2. Alvarez failed to show a meeting of the minds.
+
+To show a meeting of the minds between the alleged conspirators, a plaintiff
+must prove actual intent to participate in the conspiracy and to achieve its object.99 The evidence must establish that the parties charged with conspiracy knew
+about the conspiracy to injure the plaintiff and intended to participate in it.100
+There is no proof that the hospital even knew about—much less intended to
+participate in—some alleged conspiracy to exclude Alvarez from practice or to
+terminate his contract with the P.A. Furthermore, there is no evidence that the
+hospital knew about, or had a meeting of the minds with anyone else about, the
+two events that Alvarez attempts to rely on as evidence—Robins’s discussion
+with Somerset about a possible buy-in and Loehr’s payment of consulting fees to
+Somerset’s father. Thus, the record fails to show that the hospital knew about
+either the object of the conspiracy or the alleged illegal course of action supposedly undertaken to achieve that object.
+As discussed above, Somerset cannot have had a meeting of the minds with
+the P.A. of which he was president and sole shareholder.101 Because the record
+fails to raise a genuine fact issue about whether there was a meeting of the minds
+on the object or course of action underlying the alleged conspiracy, summary
+judgment was proper on that essential element of a conspiracy claim.
+3. Alvarez failed to show that any allegedly unlawful conduct was in
+furtherance of any stated purpose.
+
+To establish civil conspiracy, the plaintiff must also show that the allegedly
+unlawful act was carried out in furtherance of the stated object or purpose.102 As
+the Texas Supreme Court has explained: “An alleged conspirator is not liable for
+an act not done in pursuance of the common purpose of the conspiracy.”103
+a. The challenged conduct did not further the termination of the contract.
+If the object of the alleged conspiracy was to terminate Alvarez’s contract, as
+Alvarez has sometimes alleged,104 the undisputed facts show that Somerset and
+the P.A. achieved this “object” through the entirely lawful means of giving 90
+days’ written notice under Alvarez’s Independent Contractor Agreement.105 Thus,
+even assuming that the consulting fees and the discussion of a buy-in were illegal,
+this conduct neither advanced nor was even necessary to the stated object of the
+“conspiracy.”106
+In Times Herald Printing, the Houston Court of Appeals reached a similar
+conclusion, based on similar facts.107 In that case, a news service had entered into
+contracts to provide the plaintiff, a newspaper, with daily features. Later, the news
+service entered into an exclusive contract with the plaintiff’s rival newspaper.
+99. See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex.
+1968); Times Herald Printing Co. v. A.H. Belo Corp., 820 S.W.2d 206, 216–17 (Tex. App.—Houston [14th
+Dist.] 1991, no writ); West, 836 F. Supp. at 1338.
+100. See Schlumberger, 435 S.W.2d at 857.
+101. See West, 836 F. Supp. at 1340; Hankins, 698 F. Supp. at 1330; Zentgraf, 492 F. Supp. at 273.
+102. See Carroll, 592 S.W.2d at 928.
+103. Id. (citation omitted).
+104. See R. 34–35; R. 464 ¶ 35.
+105. See Juliette Fowler Homes, Inc. v. Welch Assocs., 793 S.W.2d 660, 665 (Tex. 1990).
+106. See Brown v. City of Galveston, 870 F. Supp. 155, 161 (S.D. Tex. 1994); Jackson v. Radcliffe, 795
+F. Supp. 197, 209–10 (S.D. Tex. 1992); Times Herald Printing Co., 820 S.W.2d at 217.
+107. See Times Herald Printing, 820 S.W.2d at 217.
+
+193
+
+194
+
+Appendix B. Four Model Documents
+
+After signing the exclusive contract, the news service gave the required notice
+and then canceled its contracts with the plaintiff.
+The plaintiff sued the rival newspaper on several theories, including civil conspiracy. On that claim, the plaintiff alleged that its rival newspaper and the news
+service had conspired to terminate its contracts. According to the plaintiff, they
+had achieved this object through a series of allegedly unlawful acts. The court of
+appeals affirmed the trial court’s directed verdict on this claim, explaining that
+the cancellation of the plaintiff’s contracts with the news service “was ‘accomplished’ by lawful means”—the news service had “merely exercised its contractual rights to terminate them upon proper notice.”108
+Relying on Times Herald Printing, the district court in Jackson v. Radcliffe
+reached the same conclusion, on facts nearly identical to those at issue here.109
+In Jackson, the plaintiff, a physician, had entered into an agreement allowing him
+to provide radiology services at a hospital. The hospital terminated the contract,
+providing the required 90 days’ notice. The plaintiff sued, alleging that other radiologists had conspired to have his contract terminated because he had refused to
+pay a fee for patient referrals and to participate in a threatened hospital boycott.110
+The federal district court granted summary judgment for the hospital and the
+radiologists on the civil-conspiracy claim. As the court observed, “lawful cancellation of a contract accomplished by lawful means is not evidence of an agreement to commit an unlawful act.”111 In terminating Alvarez’s contract, Somerset
+and the P.A. have likewise acted lawfully. On that basis alone, summary judgment
+was proper on Alvarez’s conspiracy claim.
+b. The challenged conduct did not further Alvarez’s exclusion.
+The undisputed facts establish that even if the object of the alleged conspiracy
+was to exclude Alvarez from practice at the hospital (as Alvarez has sometimes
+alleged),112 neither of the allegedly illegal acts furthered this supposed object. Indeed, Alvarez’s medical staff membership and clinical privileges at the hospital
+remained intact, even after all the alleged conduct occurred.113
+In a similar case, Gonzalez v. San Jacinto Methodist Hospital, a Texas court
+affirmed a summary judgment against Gonzalez, an anesthesiologist who had
+sued a hospital for breach of contract and tortious interference.114 Gonzalez alleged that termination of his employment, after another physician had obtained
+an exclusive contract, interfered with his contractual rights to staff privileges under the hospital’s bylaws.115 The court disagreed, explaining that even after the
+plaintiff’s employment had ended, his “staff privileges remain[ed] intact, subject
+only to his ability to find a way to get employment in the Hospital.”116 As the
+court noted, Gonzalez might get work in the hospital’s eye clinic, might work
+
+108. Id.
+109. See Jackson, 795 F. Supp. 197.
+110. See id. at 202.
+111. Id. at 210.
+112. See R. 465 ¶ 34.
+113. See R. 377.
+114. See Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436 (Tex. App.—Texarkana 1994,
+writ denied).
+115. See id. at 440–41.
+116. Id. at 440.
+
+3. Appellate Brief
+
+through the exclusive provider, or might even obtain the exclusive contract
+himself.117
+If the object of the alleged conspiracy was to terminate Alvarez’s staff privileges, then under the reasoning of Gonzalez, those privileges were never terminated, meaning that the alleged object was never achieved. Moreover, neither of
+the two allegedly illegal acts—Somerset’s discussion with Robins and Loehr’s
+consulting arrangement with Somerset’s father—was undertaken in furtherance
+of that alleged object.
+No matter which alternative is considered the alleged conspiracy’s purpose,
+none of the challenged conduct was carried out in furtherance of that purpose.
+Thus, for another reason, summary judgment was proper on the conspiracy claim.
+Conclusion
+Alvarez has waived his appellate complaint by filing a brief that provides no
+record references, articulates no grounds for reversal, and cites no relevant authority. Based on this waiver, the Court should refuse to reach the merits of this
+appeal.
+Even if this Court considers the merits, the record creates no genuine fact issue
+on civil conspiracy. As the trial court concluded, the evidence fails to show that
+Somerset or the P.A. committed any unlawful act. Indeed, not even an inference
+of illegality arises from either Somerset’s discussion of a possible buy-in or a third
+party’s payment of consulting fees to Somerset’s father. Furthermore, Alvarez
+failed to raise a fact issue on several other essential elements of conspiracy—that
+two or more persons participated, that there was a meeting of the minds, and that
+any challenged conduct furthered the alleged object.
+Therefore, for any one of several independent reasons, the summary judgment
+should be affirmed.
+Respectfully submitted,
+Beverly Ray Burlingame
+Counsel for Appellees,
+Robert L. Somerset, M.D., and
+Robert L. Somerset, M.D., P.A.
+
+117. See id. at 439–40.
+
+195
+
+196
+
+Appendix B. Four Model Documents
+
+TIME WARNER Connect Agreement
+Parties. In this Agreement, the terms “you” and “your” refer to
+and the terms “we,” “us,” and “our” refer to TIME WARNER Connect. For
+other definitions, see ¶ 16.
+
+,
+
+Background
+● We are in the business of offering residents of clustered communities a pack-
+
+age of services that includes local and long-distance telephone services, cable
+television, and alarm services.
+● You are the owner of the multi-unit residential property (the “property”)
+known as
+(described in Exhibit A).
+● Both you and we wish to make our services available to residents of the property in accordance with this Agreement’s terms and conditions.
+● Entertainment service will be provided by our authorized affiliate. We are acting as a marketing, sales, and billing agent for the affiliate.
+● Alarm service will be provided by an alarm-service provider selected by us.
+We are acting as a referral and billing agent for the provider.
+In consideration of the mutual covenants contained in this Agreement, and for
+other good and valuable consideration, the receipt and sufficiency of which are
+acknowledged, the parties agree as follows.
+
+Terms and Conditions
+1 Services
+We will offer the following services to your residents during the term of this
+Agreement. Residents may choose to purchase some services and not others.
+Residents need not subscribe to any of our services. Residents choosing to
+receive a service may be required to sign a customer-service agreement and
+a service order.
+1.1 Local Telephone Service. We will offer local telephone service and custom
+communications features to you and your residents. We will provide you
+and each customer with a local telephone book and a telephone number. We
+will also provide you and each customer with the following:
+(A) access to 911 features provided to local-exchange-service end-users in the
+same 911 service area;
+(B) access to operator and directory assistance; and
+(C) at a customer’s request, a directory listing in the local telephone
+directory.
+1.2 Long-Distance Telephone Service. We will offer long-distance telephone services to you and your residents. All “1⫹” long-distance calls made by customers may be routed over the long-distance networks that we select to
+carry long-distance traffic. You understand that customers who subscribe to
+the long-distance service will not be able to access alternative long-distance
+providers by dialing “1⫹”.
+1.3 Entertainment Service. We will arrange for entertainment service to be offered to you and your residents by an entertainment-service provider. You acknowledge that the package of channels offered is subject to change depending on various factors, including changes in programming available to
+
+4. Contract
+
+the entertainment-service provider, legal requirements to carry certain channels, and channel capacity.
+1.4 Alarm Service. We will arrange for alarm service to be offered to you and
+your residents by an alarm-service provider. The alarm-service provider will
+install an alarm system in a unit when a resident orders monitoring service.
+The resident will enter into an agreement with the alarm-service provider.
+1.5 Additional Service. We may decide to offer you and your residents additional
+services that can be delivered to your residents over our communications system. We will give you prior written notice of any additional service to be offered. The royalty fee for any additional services will be the same as the royalty fee for entertainment services unless we notify you that we wish to
+negotiate a different royalty fee. If we do, you and we must agree to a royalty
+fee (see ¶ 3) before we will begin the additional service for residents.
+
+2 Rates
+The initial rates to be charged the customers for the services will be our
+standard rates for the metropolitan area in which the property is located.
+Upon giving notice to customers, we or our affiliates may change rates for
+any service as legally allowable. Customers will be billed and are responsible
+for paying taxes, franchise fees, and other fees assessed in conjunction with
+the services.
+
+3 Royalty Fee
+We will pay you a royalty fee for the preceding quarter within 30 days after
+the end of each calendar quarter during the initial term and during any renewal term. The royalty fee will equal a percentage of the gross collected revenues, as defined in Exhibit B. We will provide you with a statement of
+gross collected revenues detailing the sources of revenue. Once a year, you
+will be allowed to review and audit—during business hours at our offices—
+our records relating to the statement of gross collected revenues. Either you
+or we will correct any error by paying the deficient amount to the other by
+the 20th day of the month following the review or audit. We may deduct
+from a royalty fee any overdue amount payable by you for services we provided to you.
+
+4 Communications System
+4.1 Construction, Installation, and Maintenance. At no charge to you, we will
+have the communications system designed, constructed, installed (to the extent that existing wiring and facilities are not available), and maintained as
+necessary to provide the services to the property in accordance with industry standards and applicable laws. We will arrange to release any liens affecting how the communications system is designed, built, installed, or maintained; and we will do that within 30 days of receiving notice of any such
+lien. You will cooperate with us and the service providers in obtaining permits, licenses, consents, and other requirements that may be necessary for
+us to install and operate the communications system and provide services,
+but we will pay your reasonable costs of cooperating in this manner.
+4.2 Schedule. We will begin establishing the communications system for each
+stage of the property according to the construction schedule described in Ex-
+
+197
+
+198
+
+Appendix B. Four Model Documents
+
+hibit C. You will ensure that the control room described in ¶ 5.6 is completed at your expense—with electric power and suitable for installation of
+our equipment—no later than 30 days before the date scheduled in Exhibit
+C for the first resident’s occupancy. If the control room is not completed on
+time, you will be responsible for our extra costs resulting from the delay.
+4.3 Exclusive Control. We or our service providers will retain full ownership of
+the respective components of the communications system—including all inside wiring installed on the property—as well as the exclusive right to control and operate the communications system and all other wiring, equipment, and facilities that we can use under ¶ 5.4. You and we may not permit
+the communications system or any other wiring, equipment, or facilities to
+be used by any service provider other than those expressly permitted under
+this Agreement. The communications system will not be deemed to be a
+fixture of the property. You must not access, operate, or move the communications system. You acknowledge that if a resident does not subscribe to the
+alarm service, the alarm-service provider may remove the alarm equipment
+from the resident’s unit and install it in another unit. But if this occurs, the
+alarm-service provider must install a faceplate over the opening for that
+equipment.
+
+5 Your Basic Obligations; Grant of Easement and Incidental Rights
+5.1 Easement. You grant us a nonexclusive easement on the property for purposes of constructing, installing, operating, maintaining, and removing the
+communications system. You reserve the right to cross this easement and to
+grant other easements on the property, but other easements must not interfere with this easement granted to us. This easement covers only us, the entertainment-service provider, the alarm-service provider, and any subcontractor carrying out one of the easement’s purposes on our behalf. We do not
+otherwise have the right to apportion the easement or permit access to the
+property by third parties. The easement’s term ends when the initial term expires, but if we choose to extend the Agreement for the renewal term, the
+easement’s term will end when the renewal term expires. At the time of
+signing this Agreement, you and we will also execute (1) an Easement and
+Memorandum of Agreement (in the form of Exhibit D), and (2) a UCC-1 financing statement in favor of us and the service providers to evidence our
+ownership interests in the communications system. We may record these instruments at any time.
+5.2 Grant of Rights. You acknowledge that we will spend substantial time, resources, and money in meeting our obligations under this Agreement, and
+that we are relying on your covenants in this Agreement in order to recoup
+our investment by providing the services to the property and by collecting
+revenues from customers. You therefore grant us the following rights:
+(A) the exclusive right to plan, construct, operate, maintain, and remove the
+communications system on the property;
+(B) the exclusive right to offer local and long-distance telephone service—as
+well as custom communications features and other enhanced services—
+to residents, subject to applicable laws;
+(C) the exclusive right to offer entertainment service and alarm service to
+residents, subject to applicable laws;
+
+4. Contract
+
+(D) the exclusive right to offer additional services to residents under ¶ 1.5,
+subject to applicable laws; and
+(E) the exclusive right for us—or for the entertainment-service provider or
+the alarm-service provider—to enter the property to market services to
+residents. This right will not prohibit others from entering the property
+for other purposes. All on-site solicitation under this paragraph will occur at reasonable times, will be conducted professionally, and will not unduly impose on the residents.
+5.3 Our Exclusive Rights. You have not retained any interest in the property obligating or allowing you to grant any rights similar to or competitive with
+those granted in ¶ 5.2. If any other provider of services obtains the right to
+offer services to the property by applicable laws, you may permit that provider to offer or provide any services required by those laws to the extent required. But during the Agreement’s term you will not do any of the following:
+(A) agree to promote, market, or sell services that compete with the services
+we provide;
+(B) offer competing services within the property;
+(C) grant a third party the right to offer competing services within the property; or
+(D) allow residents to install or operate any system or device—including antennas and satellite dishes—capable of providing substitute services for
+the services we offer.
+5.4 Wiring Responsibility; Electricity. You will appoint us as your agent to make
+the necessary arrangements with the local-exchange carrier to ensure your
+right to use, remove, and rearrange all existing carrier-owned wiring and cabling from the demarcation point to all locations on the property. (To this
+end, you will execute the letter of agency attached as Exhibit G.) You will
+allow us, at no charge, to use any wiring, poles, conduits, and other facilities
+or equipment that you own or have the right to use. We will provide, at the
+resident’s request and expense, additional wiring or outlets within the units
+to add or change services or equipment locations. You will arrange for the local electric company to meter all equipment that we use, and we will pay
+the utility provider directly for electricity used.
+5.5 Marketing and Sales.
+(A) You will use your best efforts to market and sell the services to residents
+and prospective residents. Specifically, you or your rental agents will do
+the following:
+(1) describe the components of each of the services—including the available features, pricing, ordering procedures, and benefits—both during
+your initial meeting with a resident or prospective resident and when
+the resident signs a lease;
+(2) provide residents and prospective residents with our current publications describing the services;
+(3) take orders for the services from any resident or prospective resident
+who wishes to subscribe;
+
+199
+
+200
+
+Appendix B. Four Model Documents
+
+(4) provide us with notice—within three business days of your getting
+it—of a resident who has entered into or terminated a lease, or vacated a unit previously occupied or leased;
+(5) report to us residents’ requests or comments about the services;
+(6) make rental agents available for training by us on the marketing of
+the services and comply with our marketing policies and procedures;
+and
+(7) display marketing and sales materials in leasing offices and common
+areas.
+(B) You acknowledge that we or any service provider may require residents
+to provide a deposit for receiving a service. You also acknowledge that we
+may try reasonably to remarket services to residents who order less than
+all the available services. If a new resident does not order all the services,
+you will give us that resident’s name and address within three business
+days of when the resident signs a lease. You will forward to us a resident’s service order by the end of the next business day after the order
+has been placed. If you do not timely forward a service order, you will forfeit the first month’s royalty fee for that resident. You will allow us and
+the service providers to periodically host an event on the property, at our
+expense, to introduce services to residents and prospective residents.
+5.6 Control Room. The control room—for use by us and our service providers—
+is a secure, enclosed, climate-controlled room located on the property. You
+lease to us exclusively the control room (as described in Exhibit E), where
+our equipment may be installed, operated, maintained, or removed. The control room will be at least 10 x 10 feet in size. We—as well as our service providers—will have access to the control room 24 hours a day, every day of the
+year.
+5.7 Contracts with Residents. You have no responsibility—express or implied—
+for any contractual liabilities or obligations under a separate agreement between us and a resident or between a service provider and a resident. All solicitations and contracts with residents and prospective residents will clearly
+state that you are not affiliated with us or with the service providers—and
+that you have no responsibility for the services.
+5.8 Insurance.
+(A) You will purchase and maintain during the Agreement’s term the following types of insurance:
+(1) Fire and extended-coverage policies that insure the buildings on the
+property for at least the full replacement cost of those buildings.
+(2) A commercial general-liability policy that covers premises operations,
+broad-form property damage, personal-injury hazards, and contractual
+liability.
+(B) The liability limits under these policies will be $2 million per occurrence, with a combined single limit for bodily-injury and propertydamage liability. You will give us a certificate of insurance attesting to
+the existence of the coverage and providing that the policies cannot be
+canceled without 30 days’ notice to us. The policies must name us as an
+
+4. Contract
+
+additional insured and must be issued by a carrier with an A.M. Best rating of A⫺ or better. You may obtain the coverage under a blanket insurance policy.
+5.9 Casualty.
+(A) If a casualty to the property occurs—whether by fire or other means—
+and renders one or more units uninhabitable, you must, within 30 days
+of the casualty, notify us in writing of either:
+(1) your agreement to restore the property and to begin and diligently pursue restoration; or
+(2) your choice to terminate this Agreement, either in whole if no units
+are restored or in part if only some units are restored.
+(B) If you agree to restore the property, we will repair or replace any parts of
+the communications system damaged as a result of the casualty. If you
+terminate this Agreement in part, we may choose to terminate the
+Agreement in whole if continuing to provide services would require the
+replacement of centralized equipment and if, in our opinion, this replacement would not be economically feasible in light of the reduced number
+of units to be served after the casualty.
+5.10 Your Representations and Warranties; Lienholder Consent.
+(A) You represent and warrant that the following statements are true:
+(1) you are the sole legal and beneficial owner in fee simple of the property, which is subject to no encumbrances other than any listed in Exhibit A;
+(2) you have full power and authority to enter into this Agreement and to
+grant the easements and licenses provided for in the Agreement, and
+the signatory below has been authorized to so act;
+(3) no person or entity holds any interest in the property that conflicts
+with any interest granted to us under this Agreement;
+(4) the property is not part of a bankruptcy proceeding, foreclosure
+action, or deed-in-lieu-of-foreclosure transaction;
+(5) you are not in default on any mortgages or encumbrances on the
+property;
+(6) no purchase contracts exist with respect to the property;
+(7) the property is not governed by any rent-control laws, nor is it being
+subsidized under any law, regulation, or ordinance (except as disclosed
+in Exhibit A); and
+(8) the property—as well as your operation of it—complies in all material respects with all applicable laws, including laws relating to the security of residents, the property, and each unit.
+(B) If any part of the property is or becomes encumbered by a lien or security
+interest, you will obtain from the lienholder a consent form (as set forth
+in Exhibit F) and will agree to the terms of this consent. You will deliver
+this consent to us either within 30 days of the date of this Agreement or
+by the date when the lien or security interest attaches, whichever is
+later.
+
+201
+
+202
+
+Appendix B. Four Model Documents
+
+5.11 Access to Units. If necessary for installation or repair of a service or the communications system, you will provide access to a resident’s unit. If the resident is not home when our personnel need access, your representative will
+accompany our personnel into the unit.
+5.12 Duty to Report. You will use reasonable efforts to maintain the property in a
+manner that preserves the integrity of the communications system and the
+property. You will promptly notify us of any condition or occurrence that
+might affect the security of the property, residents, units, communications
+system, or provision of services.
+
+6 Our Basic Obligations
+6.1 Maintenance and Repair. We—or the service providers, as appropriate—will
+maintain and repair the communications system in accordance with industry standards.
+6.2 Billing and Collections. We are responsible for all billing and collection activities associated with the services. You will not be responsible for a delinquent account of any customer (other than you). We may establish our own
+bad-debt policy, including disconnection of a customer’s service. You are responsible for paying us only for services provided to you.
+6.3 Marketing and Sales. We will provide you with marketing materials, serviceorder forms, sales support, and sales training so that you and your employees
+can market and sell the services as provided in ¶ 5.5.
+
+7 Term
+7.1 Initial Term. The initial term of this Agreement is ten years. It begins
+on the date of this Agreement. If a lienholder’s consent is required under
+¶ 5.10(B), this Agreement will become effective when you deliver that
+consent.
+7.2 Renewal Term. In exchange for our payment of $100, you grant us the option to renew the initial term for a renewal term of five years. To exercise
+this option, we will notify you in writing at least 180 days before the initial
+term expires. The royalty fee for the renewal term will be the same as the
+royalty fee for the initial term unless we notify you that we wish to negotiate a different royalty fee. This Agreement—along with all its easements, interests, and obligations—will then be renewed for the renewal term.
+7.3 Early Termination. In addition to our right of termination under ¶ 5.9, we
+may terminate this Agreement—in whole or in part—without liability to
+you if we reasonably determine that offering or providing services to the
+property has become infeasible due to changes in applicable laws or regulations and if we give 90 days’ written notice.
+
+8 Default and Remedies
+8.1 Default. A default exists under this Agreement upon any of the following
+events:
+(A) if you or we fail to meet or perform any material term, provision, covenant, agreement, or obligation contained in this Agreement and then do
+not cure this failure within 30 days after receiving notice from the other
+party;
+
+4. Contract
+
+(B) if you or we become a debtor in a bankruptcy proceeding or similar action that is not permanently dismissed or discharged within 60 days; or
+(C) if you or we become insolvent.
+8.2 Remedies.
+(A) If either party defaults, the nondefaulting party may do all of the following:
+(1) terminate this Agreement by giving 30 days’ written notice to the defaulting party;
+(2) bring an action against the defaulting party for damages; and
+(3) seek any other available legal or equitable remedy.
+(B) The parties agree that a default may result in irreparable damage for
+which no adequate remedy may be available. Accordingly, the parties
+agree that injunctive or other equitable relief—including specific performance—will be available in addition to all other available remedies.
+
+9 No Warranties; Limitation of Liability
+Except as expressly stated in this Agreement, we make no representations or
+warranties—express or implied—regarding the communications system or
+the provision of services, including but not limited to an implied warranty
+of merchantability or fitness for a particular purpose. Neither party to this
+Agreement will be liable to the other party, to customers of a party, or to a
+third party for any indirect, special, punitive, or consequential damages, including but not limited to damages based on loss of service, revenues,
+profits, or business opportunities.
+
+10 Indemnity
+10.1 Yours. Except for claims caused by the conduct or negligence of you, your
+employees, your agents, residents, or any third party that has entered the
+property with your permission, we will indemnify and defend you and your
+directors, officers, employees, agents, representatives, and affiliates from all
+claims resulting from:
+(A) the design, construction, installation, operation, or maintenance of the
+communications system; and
+(B) a default by us that has not been cured.
+10.2 Ours. You will indemnify us and our directors, officers, employees, agents,
+representatives, and affiliates from all loss or damage to any part of the communications system caused by you, your employees, your agents, residents,
+or any third party that has entered the property with your permission. You
+will also indemnify and defend us and our directors, officers, employees,
+agents, representatives, and affiliates from all claims resulting from:
+(A) any matter or event outside the scope of our express obligations under
+this Agreement; and
+(B) a default by you that has not been cured.
+
+11 Removal of Communications System
+After this Agreement has expired or been terminated, we may remove the
+communications system in full or in part, including all transformers,
+switches, electrical equipment, wiring, and cable installed by us or the ser-
+
+203
+
+204
+
+Appendix B. Four Model Documents
+
+vice providers. We will pay for this removal unless the Agreement was terminated because of your default, in which case you will bear the cost. After removing the communications system, we will, if necessary, fully repair and
+restore all portions of the property from which the system has been removed. Instead of removing the communications system, we may choose to
+disable the system. Once disabled, title to the system will vest in you, and
+we will have no further interest in the disabled system. You may then sell or
+use the system as you wish.
+
+12 Assignment
+12.1 Assignment by Us. We may assign our interests or duties under this
+Agreement to any parent, affiliate, successor, or subsidiary that we may
+have. We may also assign this Agreement to any entity that purchases the cable-television system of the entertainment-service provider. We must notify
+you in writing of any assignment within 30 days.
+12.2 Assignment by You. If you transfer or assign the property, the new owner
+must assume your obligations and affirm the easement and other rights
+granted to us under this Agreement.
+12.3 Real Right and Covenant. The easement and other rights granted to us run
+with the title to the property and are binding on you and on all subsequent
+owners, as well as on others who may claim an interest in the property. You
+agree that the easement and other interests granted to us are a real-property
+interest in the property and that the other rights and benefits granted to us
+are coupled with and incidental to this real-property interest.
+
+13 Confidential Information
+13.1 Confidentiality Agreement. The parties will keep this Agreement and its
+terms confidential. The parties will also keep confidential any information
+that is provided by one party to the other and that is marked confidential.
+The parties may not use confidential information for any purpose other than
+performance of this Agreement.
+13.2 Survival. The covenants in ¶ 13.1 will survive the expiration or termination
+of this Agreement.
+
+14 Use and Protection of Proprietary Names
+Neither party will use any proprietary name of the other except as specifically provided in writing by the owner of the name.
+
+15 Miscellaneous Provisions
+15.1 Force Majeure. Despite anything to the contrary in this Agreement, neither
+party will be liable or in default for any delay or failure of performance resulting directly from anything beyond the control of the nonperforming
+party, such as acts of God; acts of civil or military authority; acts of a public
+enemy; war; hurricanes, tornadoes, storms, earthquakes, or floods; fires or
+explosions; governmental regulation; or strikes, lockouts, or other work interruptions.
+15.2 Entire Agreement; Modification. This Agreement contains all the terms and
+conditions agreed on by the parties. Any previous agreements between the
+
+4. Contract
+
+parties are replaced by this Agreement. This Agreement can be modified or
+changed only by a written instrument signed by both parties.
+15.3 Waiver. A party’s waiver of enforcement of any of this Agreement’s terms or
+conditions will be effective only if in writing. A party’s specific waiver will
+not constitute a waiver by that party of any earlier, concurrent, or later
+breach or default.
+15.4 Severability. If any part of this Agreement is held indefinite, invalid, or otherwise unenforceable, the rest of the Agreement will continue in full force.
+15.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which is considered an original.
+15.6 Litigation Costs. If either party sues in connection with this Agreement, the
+prevailing party is entitled to recover its reasonable attorneys’ fees and other
+costs.
+15.7 Choice of Law. This Agreement is governed by and must be interpreted under Colorado law, without regard to its choice-of-law provisions.
+15.8 Notices. Notices provided for by this Agreement may be delivered in person,
+via a reputable express carrier, or by registered or certified mail (postage prepaid) to a party’s address stated below. Notice sent by U.S. mail is deemed delivered three days after deposit with the U.S. Postal Service. Notice sent by a
+reputable express carrier is deemed received on the day receipted for by the
+party or its agent. Either party may change its address as listed below by giving written notice to the other party.
+15.9 Independent Contractors. The entertainment-service provider, the alarmservice provider, and we are independent contractors. No employer-employee,
+partnership, joint-venture, or agency relationship exists between us and you.
+15.10 Announcements. You and we will not make any public announcement or
+press release about this Agreement without the other’s approval.
+15.11 Headings. All headings are for reference purposes only and must not affect
+the interpretation of this Agreement.
+15.12 Exhibits. All schedules and exhibits are fully incorporated into this
+Agreement.
+
+16 Definitions
+● “Affiliate” means any corporation, partnership, limited-liability company, or
+
+similar entity in which Time Warner Inc. or Time Warner Entertainment
+Company, L.P. has a direct or indirect ownership interest of 25% or more.
+● “Alarm service” means the provision of monitored intrusion alarm services.
+● “Communications system” means all facilities and equipment necessary or
+desirable in our opinion to provide the initial and continued delivery of services under this Agreement. This includes wires, poles, conduits, pipes, antennas, switch and alarm equipment, software, central processing units, and associated facilities and equipment located on the property (some of which may
+be allocated to particular services).
+● “Custom communications features” means custom telephone-related communications services such as call waiting, call forwarding, speed dialing, and
+voice mail.
+
+205
+
+206
+
+Appendix B. Four Model Documents
+● “Entertainment service” means the provision of cable-television and other
+
+video-and-sound services, including the same package of basic, premium, payper-view, and interactive-game services generally offered to residential customers by the entertainment-service provider.
+● “Local telephone service” means the provision of shared access to the local
+telephone network of the local-exchange carrier, access to 911, operator- and
+directory-assistance services, and local telecommunications services by our affiliate to the extent permitted by applicable laws.
+● “Long-distance telephone service” means the provision of telecommunications services beyond the toll-free local calling area, including access to longdistance operator- and directory-assistance services.
+● “Service” means any telephone service, entertainment service, alarm service,
+or additional service offered to you or to the residents during the term of this
+Agreement.
+Dated:
+TIME WARNER Connect (referred to as “we” throughout)
+a New York General Partnership
+By:
+Its:
+Owner (referred to as “you” throughout)
+
+a
+Address:
+
+Phone:
+Fax:
+By:
+Its:
+
+Key to Basic Exercises
+
+What follows are model answers for 32 of the basic exercises—
+the ones for which a model is possible. Some exercises—
+namely, those for §§ 4, 19, 21, 22, 26–28, 30, 33, 41–47, 49, and
+50—don’t lend themselves to “model” answers, so they don’t
+appear here.
+§ 1 Case: Serrano-Moran v. Grau-Gaztambide, 195 F.3d 68 (1st Cir. 1999).
+Facts: The parents of Rufino Serrano-Rosado maintain that the police kidnapped and beat their mentally impaired son. A day after the beating,
+Rufino was hospitalized for his injuries. Ten days later, he died.
+Rufino’s parents sued the police (for civil-rights violations under 42
+U.S.C. § 1983) and the hospital (for medical malpractice) in federal court,
+seeking a trial of both defendants before a single jury. The hospital challenged federal jurisdiction over the state-law malpractice claims, and the
+trial court dismissed them.
+On appeal from that dismissal, the parents argued that (1) the police
+and hospital will point to each other as the cause of death, and this creates a “common nucleus of operative facts”; and (2) the parents’ claims
+against the two defendants are related because the actions of the police
+and the hospital together caused Rufino’s death—judicial economy dictates trial before a single jury.
+Question: The district court found that the facts and witnesses of the
+two claims were essentially different. It decided that the federal civilrights claim against the police and the state medical-malpractice claim
+against the hospital were sufficiently distinct so that they did not need
+to be tried together in federal court. Did the court abuse its discretion in
+dismissing the malpractice claims, which could still be brought in state
+court?
+Holding: The district court did not abuse its discretion.
+Reasoning: The facts and the witnesses for the two claims are essentially
+different. Whether the police violated Rufino’s civil rights has nothing to
+do with whether the hospital and doctors conformed to the requisite
+standard of care.
+
+207
+
+Key to Basic Exercises
+
+s
+ce
+an
+
+uired for reversal
+is req n
+co
+oh
+
+io n
+la t
+
+v io
+
+l
+ta
+
+m
+
+ice
+jud
+pre
+o
+n
+
+is a “
+
+structural” error
+
+courts: no arbitrary trials
+
+t e to
+
+a
+a nd
+
+ut
+
+ed
+
+d
+
+ure
+
+ice
+
+witnesses
+assemble
+reb
+ex
+
+tnesses
+o prep wi
+ime t
+no t
+nat
+
+cho
+
+p
+
+to
+ime
+no t
+
+p
+rop
+
+n’ t
+
+ds
+ar
+gu
+
+mendment — counsel of
+ts
+er
+
+n
+u t io d i d
+
+of ca
+
+n ve s
+no i
+
+seve
+ral
+c
+
+ou
+
+nt
+
+ed
+s e c h a ng
+
+tigat
+
+s
+
+or
+at
+u lp
+
+ec
+
+mo
+tio
+
+v.
+ye
+
+ros
+o pp o
+se
+
+Insufficient time to prepare
+
+em
+d
+l syst
+ueicia
+pro
+ce
+jud
+s
+s
+the defendant
+sa
+to
+never
+fe
+ca
+u
+s
+e
+de
+arl
+ier
+c
+ont
+inu
+
+ep
+th
+d
+
+ice to opposing c
+of prejud
+ounse
+Lack
+l&s
+to
+yste
+m
+ef
+e
+n
+d
+a
+n
+t
+—prose blame
+cut
+l
+io ess
+n
+ad in
+mi
+
+Memo on
+Denial of
+Continuance
+
+n
+
+ss
+
+ht is short
+soug
+e
+ss
+tim
+de illne
+a fi
+n
+o
+b
+review
+rd of
+nda
+a
+t
+s
+omplicated
+se c
+a
+c
+
+lay
+de this
+ts
+
+m le
+ar
+
+r
+e rro
+
+nprepared
+u nsel u
+no
+hir
+Coco sh
+e
+od
+d
+
+.
+exp
+al
+tri
+rcher
+sea
+s re
+da
+otion
+29 m
+ule
+yR
+
+nsel
+bst. cou
+of su t
+e
+c
+n
+va
+en
+et ele
+mp irr
+
+nsel merits special
+s of cou
+cons
+ider
+Illnes
+
+ati
+on
+
+§ 2 Nonlinear Outline
+
+6th A
+
+ex
+c
+
+io n o f e x c u l p a t o r y e v i d e n c e
+
+208
+
+Linear Outline
+1. Executive Summary
+● Issue: Charged with drug trafficking, Oscar Winchell retained Millard
+
+Gilmer, a veteran criminal-defense lawyer (assisted by Norman Newman, a first-year lawyer). Six weeks before trial, Gilmer had emergency
+heart surgery; he required eight weeks to recuperate. Winchell moved
+for a one-month continuance (unopposed), and the court denied the motion. With Newman as his only attorney, Winchell was tried and convicted. Was denying the continuance reversible error?
+● Answer: An appellate court would likely hold that if lead counsel sud-
+
+denly fell ill and cocounsel was too inexperienced to handle the case,
+the trial court erred in not granting a continuance:
+
+Key to Basic Exercises
+● The refusal to postpone the trial resulted in a fundamentally unfair
+
+trial.
+● Newman had insufficient time and experience to prepare adequately
+
+for a trial of this magnitude and a case of this complexity.
+● Winchell has a constitutionally guaranteed right to counsel of choice,
+
+and this right cannot be arbitrarily denied. Winchell had not retained
+Newman as trial counsel. Rather, Newman had been associated in a research capacity only.
+2. When illness of counsel is the ground for a continuance, reversal need
+not be predicated on a finding of abuse of discretion but may be based
+simply on the resulting unfairness of the trial. Arabian Am. Oil v. Scarfone, 939 F.2d 1472, 1479 n.17 (11th Cir. 1991).
+● Although the general standard of review for the denial of such a request
+
+is abuse of discretion, the caselaw establishes an attorney-illness exception.
+● The facts of this case satisfy the requirements for applying the excep-
+
+tion and reversal: counsel was ill, cocounsel was relatively unprepared
+and inexperienced, the time sought for continuance was short, and the
+case was complicated. Smith-Weik Mach. Corp. v. Murdock Mach.
+Corp., 423 F.2d 842 (5th Cir. 1970).
+3. In the alternative, the court’s denial of the continuance was an abuse of
+discretion because it left inexperienced cocounsel unguided—and with only
+five weeks to prepare for his first trial.
+● A showing of abuse of discretion, resulting in specific substantial preju-
+
+dice, mandates reversal of a conviction.
+● The facts of this case are essentially indistinguishable from the facts of
+
+United States v. Verderame, 51 F.3d 249 (11th Cir. 1995), a case in
+which the Eleventh Circuit reversed a conviction on the ground that
+without the continuance, there was insufficient time to prepare.
+● Neither the prosecution nor the judicial system would have been preju-
+
+diced by the delay.
+● The prosecutor did not oppose a continuance.
+● As to two earlier continuances, both the court and the prosecutor
+
+stated on the record that Winchell was blameless.
+● The record demonstrates how the denial of a continuance substantially
+
+prejudiced the defense. This prejudice resulted mostly from Newman’s
+inexperience.
+● Even an experienced advocate would have found the time insufficient
+
+to (a) digest copious discovery, (b) investigate new exculpatory evidence, and (c) prepare or assemble witnesses.
+● No motion was made for an order directing the prosecutor to define
+
+the charged narcotics conspiracy or to list the participants.
+4. In the second alternative, the denial was structural error. The right to
+counsel of choice is a component of due process, requiring courts to balance
+
+209
+
+210
+
+Key to Basic Exercises
+
+a defendant’s choice of counsel against the general interest in a fast and efficient trial. Gandy v. Alabama, 569 F.2d 1318, 1326 (5th Cir. 1979).
+● Arbitrary action prohibiting the use of counsel of choice violates due
+
+process. Gandy, 569 F.2d at 1326.
+● Violation of the right to counsel of choice is a structural error, requiring
+
+automatic reversal. United States v. Rankin, 779 F.2d 956 (3d Cir.
+1986).
+● This ground requires no proof of prejudice: the right is either respected
+
+or denied.
+● Competence of substitute counsel is irrelevant.
+● No harmless-error analysis applies. Rankin, 779 F.2d at 958.
+
+5. Conclusion
+● the likelihood of success on appeal
+● briefing schedule
+● likely time allotment for oral argument—what the clerk says
+● additional avenues of reversible error to explore
+
+§3
+
+● In March 2000, Gilbert Spaulding applied to the Workforce Commission
+
+for extended unemployment benefits. The commission denied the request because those benefits were not available for the period for which
+he sought eligibility. The trial court affirmed.
+● Plaintiff, Pilsen Corporation, moved for a partial summary judgment
+
+on the discrete issue of fraud. The trial court granted the motion, and
+the court of appeals affirmed. On further appeal, however, the state
+supreme court reversed.
+● Davis Energy owns a fuel-storage yard that can be reached only by a pri-
+
+vate road. For seven years, owners of adjacent lots have used the road to
+reach their property. For the past three years, Davis has had a guard at
+the road’s entrance but has posted no other notice about private property or permission to enter. Has Davis, through its actions or silence,
+granted its neighbors an easement to use the road?
+● Plaintiff Los Angeles Dodgers, a corporation owning a professional base-
+
+ball team, began in New York as the Brooklyn Dodgers. In 1958, the
+team moved the site of its home games from New York to California
+and changed its name to the Los Angeles Dodgers. The organization’s
+principal corporate offices are now in Los Angeles.
+§5
+
+● Even assuming that the fog caused Roelke’s accident, Amskills had no
+
+duty to prevent such a freakish and unforeseeable injury.
+● Before the initial public offering, no one knew or had reason to know
+
+that Palm Harbor could not be timely completed in accordance with
+specifications.
+● Beale has not alleged facts that, if true, would establish either public in-
+
+jury or reduced competition among the nation’s law schools. Therefore,
+her restraint-of-trade claim must be dismissed.
+
+Key to Basic Exercises
+● The Business Corporation Law does not address whether a New York
+
+corporation can indemnify nonemployees.
+● The court examined many cases and found few that imposed a duty to
+
+disclose the illegal conduct of candidates for elected office.
+§6
+
+● Oral argument would be of little benefit for two reasons. First, the dis-
+
+positive issue has recently been decided by the Texas Supreme Court
+[footnote citation] and by this Court [footnote citation]. Second, the
+facts and legal arguments are adequately presented in the briefs and the
+record. [70 words]
+● No Kansas cases explicitly hold that Kansas requires a corporation to
+
+have a valid business purpose to engage in certain specified corporate
+transactions. But in 1994 the Supreme Court of Kansas decided a case
+that bears on the question. The case involved a cash-out merger in
+which the dissenters claimed that the defendant’s board of directors had
+breached its fiduciary duties to them. The court found that a corporation need not show a valid corporate purpose for eliminating stockholders. [80 words]
+● The court of appeals cited two salient points. First, the Environmental
+
+Protection Agency (EPA) had already issued the applicant a National Pollution Elimination System permit for the actual discharge of wastewater
+from the outfall pipe. Second, under the Clean Water Act, the issuance
+and conditions of such permits are generally exempt from compliance
+with the Environmental Impact Statement (EIS) requirement. So the
+court concluded that the Corps had properly excluded the environmental implications of the outfall-pipe discharges from its analysis. The
+court considered only the construction and maintenance of the pipeline
+itself in determining that issuing the permit did not constitute a major
+federal action. [107 words]
+§7
+
+● While struggling as a single parent to provide for her children, Ms. Lend-
+
+erfield accrued considerable debt to her family and others.
+● Chesapeake incorrectly asserts that it is not a proper defendant in this
+
+case and that therefore relief cannot be granted.
+● Finding that Officer McGee was acting more as a school employee than
+
+as a police officer in searching Robinson, the court ruled that an official’s primary role is not law enforcement.
+§8
+
+● After the plaintiff testified, three witnesses testified for the corporation.
+● The court decides this purely legal question.
+● The court should deny McCormick’s motion for partial summary judg-
+
+ment on the duty to defend.
+● The court should disregard Thompson’s opposition because it violates
+
+California Rule of Court 313.
+§9
+
+● The court relied heavily on the district court’s statement that (1) the
+
+would-be intervenors retained the right to appear through counsel, to
+participate in the fairness hearing, and to conduct discovery, and (2)
+
+211
+
+212
+
+Key to Basic Exercises
+
+they had standing to appeal the court’s approval or disapproval of the
+class-action settlement.
+● Tenant will probably not be able to have the lease declared void and un-
+
+enforceable for vagueness. It contains all the essential elements of a
+lease: a description of the premises, the amount of rent to be paid, the
+term of the lease, and the identity of the parties.
+● The Younger doctrine also applies to a state civil proceeding that (1) is
+
+ongoing, (2) implicates important state interests, and (3) affords an adequate opportunity to raise federal claims.
+§ 10
+
+● Notice will be effective only if it is delivered in person or by certified
+
+mail, return receipt requested.
+● Without contrary proof, the court should presume that the administra-
+
+tor’s functions continue.
+● Termination will be approved only after the administrator reviews the
+
+application and finds it complete.
+§ 11
+
+● On August 27, in response to the Governor’s Plea to the Jurisdiction,
+
+this Court dismissed the whistleblower claims against the Governor.
+● The single most important factor in determining whether, within the
+
+meaning of the Act, a party is in charge of the work is the right to stop
+the work.
+● The Commission is not now in a position to provide additional affida-
+
+vits and other evidence to support its contention that Bulworth and
+Islington are an integrated enterprise.
+● For good cause, the court may authorize a preappearance interview
+
+between the interpreter and the party or witness.
+● Arguing that it had no control over the release of the hazardous sub-
+
+stance that created the emergency, Silver Sidings contests whether, under the Spill Bill, the Department of Natural Resources has jurisdiction.
+But Silver Sidings is, under the Spill Bill’s definition, “a person having
+control over a hazardous substance involved in a hazardous-substance
+emergency.” Four statutory factors demonstrate this: (1) Silver Sidings
+owned the property where the release occurred, (2) it owned the underground storage tanks from which the hazardous substance was released,
+(3) it permitted the hazardous substance to be stored in its tanks on its
+property, and (4) it had every right as a landowner to control the use of
+its land and tanks.
+§ 12
+
+● On July 15, 2000, in a prehearing conference, the court extended Raw-
+
+son’s time to respond to Vicker’s motion until August 6. But Rawson
+failed to file a response.
+● An employee who is subpoenaed to testify in a judicial or administra-
+
+tive proceeding must give the company prompt notice of the subpoena
+so that it can decide whether to seek a protective order.
+● The court asks whether the plaintiff is guilty of unreasonable delay in
+
+asserting its rights. This determination is within the court’s discretion.
+The emphasis is on the delay’s reasonableness, not its length.
+
+Key to Basic Exercises
+● After the Bank dishonored and returned the forged check, the U.S. Attor-
+
+ney subpoenaed the Bank, directing it to deliver to his office, upon receipt, all bank checks, cashier’s checks, and similar items stolen in the
+July 2, 2000 robbery.
+§ 13
+
+● Jones agrees with Smith.
+● The professional fees in this project depend entirely on what planning
+
+techniques the client favors.
+● The judge believes she has discretion to determine whether the crime-
+
+fraud exception applies.
+● With or without an express agreement, most courts hold that the
+
+authority continues for a reasonable time in light of all the circumstances.
+§ 14
+
+● An interested party may apply to modify or revoke an antidumping or-
+
+der (or to terminate a suspension agreement) during an annual administrative review. The board normally won’t consider revoking an order unless there have been no sales at less than fair value for at least three
+consecutive years. (Suspension can’t be changed in the phrase suspension agreement.)
+● In analyzing the ADA claim, the court noted that the company termi-
+
+nated the decedent and reduced his AIDS benefits before the ADA became effective. Plaintiff nonetheless alleged that limiting AIDS benefits
+beyond the ADA’s effective date—in effect discriminating between plan
+members with AIDS and members without AIDS—violated the general
+rule of Title I.
+● A finding that reasonable grounds exist to revoke parole should first be
+
+made by someone directly involved in the case. But the preliminary evaluation and resulting recommendations should be in the hands of someone not directly involved. (The words evaluation and recommendations
+probably need to be retained.)
+§ 15
+
+● Jenkins knew about the computer’s access port.
+● This Court correctly dismissed the plaintiff’s claims.
+● Courts have identified several factors in determining whether a defen-
+
+dant’s use of another’s registered trademark is likely to cause confusion,
+mistake, or deception.
+● A party can preemptively protect the enforceability of the contract’s pro-
+
+visions by inserting a severability clause.
+● A party may waive a provision of this agreement only by signing a writ-
+
+ten waiver.
+§ 16
+
+● Licensee will perform the work in compliance with all applicable laws.
+● While the witness’s truthfulness may be challenged on cross-
+
+examination, it cannot be further challenged through extrinsic evidence
+of matters not already in the record.
+● If you fail to perform an obligation under this agreement, we may
+
+choose to perform the obligation and then recover from you the cost of
+
+213
+
+214
+
+Key to Basic Exercises
+
+our performance. (For purposes of this revision, the bailor becomes we;
+the bailee becomes you.)
+● Seller must assist Buyer in this process but will not bear the associated
+
+costs.
+§ 17
+
+Foster does not dispute that his complaint against Pine National wasn’t
+filed until after the applicable limitations period had expired. Rather,
+Foster seeks to avoid time-bar by arguing that (1) the statute is tolled because this is a case of misnomer, and (2) the equitable exception described by the Texas Supreme Court in Enserch Corp. v. Parker [footnote citation] applies. Foster argues that the question whether Pine
+National was prejudiced by the late filing creates, under the exception,
+a material issue of fact precluding summary judgment.
+Yet neither argument states a valid ground for tolling the statute.
+First, the undisputed facts show, as a matter of law, that this is not a
+case of misnomer but of misidentification. And cases of misidentification do not toll limitations. Second, the equitable exception is unavailable on these facts. Although Foster argues that the late filing creates a
+material fact issue, prejudice to Pine National is irrelevant under the Enserch exception. So Foster has failed to show any basis for applying the
+exception. His claims are time-barred as a matter of law.
+
+§ 18
+
+Appellant provides a substantially correct statement of the procedural
+history. On July 27, 2000, Keith W. Hillman filed for benefits with the
+Criminal Injuries Compensation Fund. Exactly a month later, the Director of the Division of Crime Victims’ Compensation denied the claim
+because Hillman’s conduct had contributed to his injury and because
+Hillman had not cooperated with law enforcement. In December 2000,
+Hillman requested a review of the denial. The deputy commissioner
+held a hearing in April 2001.
+
+§ 20
+
+● Enclosed are the following documents: [list]. (Or: Here are the four docu-
+
+ments you requested. You’ll find that . . . .)
+● As you requested, I met with Roger Smith today. (The case is referred to
+
+in the subject line. Omit any reference to it in this sentence.)
+● The discovery cutoff in this case is Monday, March 20, 2000.
+● After talking with Alex in your office this morning, I called the trustee.
+● We would like to retain you as a consultant in this case.
+● Thank you. If you have any questions, please call.
+
+§ 23
+
+In a Texas federal district court, R&B Music sought injunctive relief
+against the McCoys to prevent them from any further use or disclosure
+of R&B’s trade secrets. A day later, the Texas court issued an order restraining the McCoys from using or disclosing certain R&B property
+and proprietary information. At the same time, the court set an evidentiary hearing on R&B’s preliminary-injunction motion, giving the parties ten days’ notice.
+A day before the scheduled hearing, the McCoys moved to dismiss
+for an alleged lack of venue and personal jurisdiction. Alternatively,
+
+Key to Basic Exercises
+
+they asked the court to transfer the case to an Illinois federal court under 28 U.S.C. § 1404 or § 1406.
+When the parties arrived for the injunction hearing, the Texas court
+indicated its intent to hear testimony and rule on the McCoys’ dismissal or transfer motion, to which R&B had been given no chance to
+respond. The testimony established that the McCoys had had significant contacts in Texas for the past eight years—including daily phone
+calls and faxes to and from R&B; their three visits to R&B’s Texas headquarters; and their work in negotiating R&B contracts with Texas musicians.
+The next day, the Texas court transferred the case to this Court, noting that the transfer was for the reasons stated on the record. As the
+transcript reveals, the Texas court decided that while it had personal jurisdiction over John McCoy, it lacked personal jurisdiction over Kate McCoy. According to the court, the case should be transferred because “to
+accord relief to R&B down here while leaving the Illinois court to deal
+with Kate McCoy simply would not provide an effective situation” for
+any of the parties. The judge did not indicate which statutory section
+governed the transfer.
+In the same order, the Texas court further ruled that its earlier order
+restricting both John and Kate McCoy from using or disclosing R&B’s
+trade secrets would remain in effect pending further orders of the Illinois court. After the case arrived in Illinois, R&B filed a supplemental
+motion for preliminary injunction, asking this Court to extend and expand the injunctive relief that the Texas court had already granted.
+§ 24
+
+The modern legal researcher must work in two realms: paper and electronic.
+
+§ 25
+
+1. The automobile made its first appearance on the streets, for all practical purposes, in the first decade of this century.
+2. By 1940, the United States had become an automobile society. (By
+1940: temporal progression; automobile society: echo link.)
+3. The numbers have continued to rise, as automobiles choke the roads
+and highways, and millions of people, living in the land of suburban
+sprawl, use the automobile as their lifeline—connecting them to work,
+shopping, and the outside world in general. (The numbers: pointing
+word plus echo link; continued: echo link.)
+4. Thus, a person who parks overtime and gets a “ticket” will get an order to appear in court and face the music. (Explicit connective.)
+5. In many localities, traffic matters got handled by municipal courts,
+police courts, justices of the peace, and sometimes specialized departments of a municipal court. (Echo link.)
+6. The traffic court judge, as one would expect, did not have the prestige
+and dignity of a higher-grade judge. (Echo link.)
+7. The root of this evil was, perhaps, the fact that defendants did not—
+and do not—see themselves as criminals, but rather as unlucky people
+who got caught breaking a rule that everybody breaks once in a while.
+(Pointing word plus echo link.)
+
+215
+
+216
+
+Key to Basic Exercises
+
+8. This attitude came to the surface in a 1958 American Bar Association
+report on traffic matters in Oklahoma. (Pointing word plus echo link.)
+§ 29
+
+This Court held that Julia was entitled to damages for loss of consortium and affirmed that portion of the judgment. But the Court reversed
+on mental anguish because Julia did not witness the accident:
+[A] claim for negligent infliction of mental anguish that is not
+based on the wrongful-death statute requires that the plaintiff
+prove that he or she was, among other things, located at or near
+the scene of the accident, and that the mental anguish resulted
+from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observation of the incident, as contrasted with learning of the accident from others after the occurrence. Julia has not met either of these requirements and
+therefore may not recover for mental anguish.
+Thus, . . . .
+
+§ 31
+
+● Nothing in this Agreement gives anyone, other than the parties and the
+
+Buyer’s permitted assignees, any rights or remedies under the
+Agreement.
+● The Corporation and the Executive agree that they have negotiated this
+
+Agreement at arm’s length and that legal counsel for both parties have
+had an adequate opportunity to review this Agreement so that any court
+will fully enforce it as written.
+● The employee agrees not to compete and further agrees that the limita-
+
+tions relating to time, geographical area, and scope of activity to be restrained are reasonable. This agreement is supported by independent,
+valuable consideration as required by Texas Business and Commerce
+Code § 15.50.
+§ 32
+
+(1) Commitment. This letter defines the commitment made on behalf of
+Lucky Development Company (Seller) to sell to ABC Company
+(Buyer) 111.3 acres of land out of the Benbow House Survey, Abstract
+247.
+(2) Buyer Obligations. Buyer must pay, in cash, a sum equal to the product of $5.50 multiplied by the total number of square feet within the
+land’s boundaries. Payment must be made under the terms of a Saleand-Purchase Agreement acceptable to and executed by both Buyer
+and Seller. Buyer must exercise its best efforts to:
+(a) enter into the Sale-and-Purchase Agreement within the stated
+time; and
+(b) secure any essential commitments from high-quality department
+and specialty stores to establish, construct, and operate a regional
+mall.
+(3) Limitation of Commitment. No sale or purchase agreement or contract of sale is intended until Buyer and Seller agree to the Sale-andPurchase Agreement. If Buyer and Seller do not agree within 60 days
+from the date of this letter, neither party will have any liabilities or
+obligations to the other.
+
+Key to Basic Exercises
+
+§ 34
+
+7.7 Insurance
+(A) Policies. Borrower must provide the insurance policies described
+in Exhibit I, together with all other insurance policies that
+Lender may reasonably require from time to time. All insurance
+policies must:
+(1) be continuously maintained at Borrower’s sole expense;
+(2) be issued by reputable, responsible insurers that are satisfactory to Lender;
+(3) be in form, substance, and amount satisfactory to Lender;
+(4) with respect to liability insurance, name Lender as an additional insured;
+(5) provide that the policies cannot be canceled or modified without 60 days’ prior written notice to Lender; and
+(6) with respect to insurance covering damage to the Mortgaged
+Property, name Lender as a mortgagee, contain a “lender’s
+loss payable” endorsement in form and substance satisfactory
+to Lender, and contain an agreed-value clause sufficient to
+eliminate any risk of coinsurance.
+(B) Proof of Coverage. Upon request, Borrower must deliver to
+Lender the original policies, copies of them, or certificates evidencing the policies.
+
+§ 35
+
+● Escrow Agent is entitled to receive an annual fee in accordance with
+
+standard charges for services to be rendered under this Agreement.
+● Each member may transfer all or any part of his membership interest to
+
+any other member without restriction of any kind.
+● The occurrence of any one or more of the following constitutes an event
+
+of default: (a) if Borrower fails to pay any installment of principal or interest on an advance . . . .
+● After completing its work, Licensee must restore the License Area to
+
+the condition in which Licensee found it upon first entering.
+● The sender fully complies with the requirement to send notice when
+
+the sender obtains electronic confirmation. (This one expresses a status,
+not a duty. An alternative wording: The sender has fully complied with
+the requirement to send notice when . . . .)
+§ 36
+
+● The Buyer must pay in full for product previously delivered. But the
+
+quantity of product whose delivery or acceptance is excused by force majeure will be deducted without liability from the quantity otherwise subject to delivery or acceptance.
+● For travel and subsistence expenses actually and necessarily incurred by
+
+Contractor in performing this Contract, Contractor will be reimbursed
+in the same manner as in the current Commissioner’s Plan, but not in
+an amount that exceeds amounts provided for under the Plan or $2,000.
+● The Borrower may, at any time and from time to time, prepay the Loans
+
+in whole or in part, without premium or penalty, upon at least one business day’s notice to the Lender, specifying the date and the amount of
+
+217
+
+218
+
+Key to Basic Exercises
+
+the prepayment. Each prepayment must be accompanied by the payment of all accrued but unpaid interest on the amount prepaid to the
+date of the prepayment.
+§ 37
+
+● AmCorp and Havasu have the sole right to use inventions covered by
+
+this Agreement and to obtain patent, copyright, trade-secret, and any
+other form of legal protection for the inventions.
+● Immediately upon notice from Pantheon, Licensee must discontinue
+
+producing licensed items at every print shop.
+● No change, waiver, or discharge of this Agreement is valid unless in a
+
+writing that is signed by an authorized representative of the party
+against whom the change, waiver, or discharge is sought to be enforced.
+● The settlement is binding on all classes of creditors and stockholders of
+
+this Corporation.
+§ 38
+
+● An employee who has earned more than 25 credits is eligible for posi-
+
+tions under § 7.
+● The fire marshal is responsible for issuing any permit listed in this
+
+section.
+● Each shareholder of the corporation has only one vote.
+● If an appealing party has not satisfied the requisites for an interlocutory
+
+appeal, that party’s appeal will be dismissed.
+● When an issue not raised by the pleadings is tried with the parties’ ex-
+
+press or implied consent, it must be treated in all respects as if it had
+been raised by the pleadings.
+§ 39
+
+Before the entry of the final decree on June 5, 2000, the parties participated in four hearings before three Commissioners in Chancery, took
+three additional sets of depositions of healthcare providers, and had at
+least 12 live hearings. The court granted a divorce on the ground of separation in excess of one year, granted spousal support and $5,000 in costs
+and attorney’s fees to the wife, and equitably distributed the property.
+
+§ 40
+
+Two of the three passages seem to have real meaning, but they are all
+poorly expressed.
+● I’m not sure I understand this sentence. It might mean this: “It is ille-
+
+gal for a savings and loan holding company to obtain control of an uninsured institution or to retain (for longer than 12 months) control of any
+institution that has become uninsured.”
+● This is an odd, even surprising provision because it seems to give the
+
+nonspouse in a bigamous relationship more rights than the bigamist’s innocent spouse. It seems to mean this: “‘Spouse’ means the person (1) to
+whom the Cardholder is legally married, or (2) with whom the Cardholder has been cohabiting as husband and wife for at least two years. If
+the Cardholder is legally married but has been cohabiting with someone
+outside the marriage for at least two years as husband and wife, then
+that someone is considered the spouse.”
+
+Key to Basic Exercises
+● This is a weird contractual provision. If you sign the agreement, you
+
+seem to be violating it no matter what you do. So it seems to have no
+genuine meaning at all. But it might be trying to say something like
+this: “In imposing requirements, standards, and rates, the 911 provider
+must treat the Company just as it treats an incumbent local-exchange
+company.”
+§ 48
+
+The following abbreviations appear in these answers:
+DMAU
+MAU
+AHBEU
+U&A
+DMLU
+AU&S
+S&W
+MEU2
+TCW
+
+Bryan A. Garner, A Dictionary of Modern American Usage
+(1998).
+Wilson Follett, Modern American Usage: A Guide (Erik Wensberg ed., 2d ed. 1998).
+American Heritage Book of English Usage (1996).
+Eric Partridge, Usage and Abusage (Janet Whitcut ed., new ed.
+1995).
+Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed.
+1995).
+Roy Copperud, American Usage and Style: The Consensus
+(1980).
+William Strunk Jr. & E.B. White, The Elements of Style (3d ed.
+1979).
+H.W. Fowler, A Dictionary of Modern English Usage (Ernest
+Gowers ed., 2d ed. 1965).
+Theodore M. Bernstein, The Careful Writer (1965).
+
+● When Margot arrived, Rodney told her that David had laid down be-
+
+cause of his pain. (Laid should be lain.)
+DMAU at 401–02.
+MAU at 175.
+AHBEU at 113.
+U&A at 170.
+DMLU at 512.
+S&W at 51.
+MEU2 at 327.
+TCW at 254–55.
+● Mrs. Clements testified that Kenneth was waiving the gun wildly and
+
+pointing it at Bill. (Waiving should be waving.)
+DMAU at 684.
+U&A at 372.
+DMLU at 923.
+AU&S at 411.
+MEU2 at 685.
+● Counsel testified that because the testimony would have harmed her
+
+case, she opted to forego it for reasons of trial strategy. (Forego should be
+forgo.)
+DMAU at 301–02.
+AHBEU at 97.
+U&A at 120.
+DMLU at 367.
+MEU2 at 205.
+
+219
+
+220
+
+Key to Basic Exercises
+● Since the Oneida line of cases are now binding federal law in Califor-
+
+nia, this Court is bound to follow them. (Are should be is; the subject is
+line.)
+DMAU at 623–24.
+AHBEU at 36.
+U&A at 211.
+DMLU at 840–41.
+AU&S at 366.
+MEU2 at 402.
+TCW at 301–02.
+● The cost of any arbitration proceedings will be born by the party desig-
+
+nated by the arbitrators. (Born should be borne.)
+DMAU at 91–92.
+AHBEU at 78.
+U&A at 49.
+DMLU at 114.
+AU&S at 52.
+MEU2 at 62.
+● The gas would likely be inventory under the Idaho statutes defining the
+
+term, but these provisions might not apply since they do not effect
+Idaho taxable income. (Effect should be affect.)
+DMAU at 24.
+AHBEU at 69.
+U&A at 8.
+DMLU at 34, 305.
+AU&S at 52.
+S&W at 45.
+MEU2 at 13.
+TCW at 29.
+● Texas law prohibits the unjustified interference with a parties’ existing
+
+or prospective contractual relations. (Parties’ should be party’s.)
+DMAU at 509–10.
+AHBEU at 241.
+DMLU at 674.
+S&W at 1.
+● For the reasons stated in Jones’s initial motion, Jones maintains that the
+
+Court’s August 27 order precludes Fillmore from preceding on count six
+in this action. (Preceding should be proceeding.)
+DMAU at 513–14.
+DMLU at 680.
+AU&S at 300.
+TCW at 347.
+● The laws of the State of Massachusetts (irrespective of its choice-of-law
+
+principals) govern the validity of this Agreement, the construction of its
+terms, and the interpretation and enforcement of the parties’ rights and
+duties. (Principals should be principles.)
+
+Key to Basic Exercises
+DMAU at 523.
+AHBEU at 128.
+U&A at 256.
+DMLU at 691–92.
+AU&S at 304.
+TCW at 347.
+● Neither Mr. Robinson’s affidavit nor Plaintiffs’ deposition testimony
+
+carry the force of law. (Carry should be carries.)
+DMAU at 447.
+MAU at 116.
+U&A at 204.
+DMLU at 586.
+MEU2 at 386–87.
+TCW at 121–22.
+
+221
+
+Index
+
+Abbreviations, 46, 47–48, 161
+Acronyms, 46, 47–48
+Active voice, 24–27, 139
+Adjectives, in parallel listing, 28
+Adverbs, in parallel listing, 28
+Adverbs, placement of, 140–41, 143
+Air Force, United States, 50
+Aitken, J.K., 91n, 107n
+All-caps text, 126–27
+Alphabetized headings, avoiding, 10–11
+ALWD Citation Manual, 157
+American Heritage Book of English Usage,
+219–21
+American Usage and Style, 219–21
+Ames, James Barr, 72
+And as sentence-starter, 20, 50, 140, 143,
+147
+and/or, 112–13
+Answering grammatical questions, 140
+Apostrophes, 159–60
+AP Stylebook, 140
+Architect, 5–10
+are, 37–38, 138
+Art of Plain Talk, The, 100n
+Art of Readable Writing, The, 100n
+Asprey, Michele M., 107n
+Associated Press Stylebook and Libel Manual, 140
+as to, 35
+Atchley, Michael L., xiv, 164, 181
+Atkinson, Thomas E., 72, 73
+Audience, 91–93, 143–45
+Austin, John, 20
+Average paragraph length, 72–75
+Average sentence length, 19–23, 109
+Baker, Sheridan, 110n
+Basic exercises, key to, 207–21
+Bell, John A., 107n
+Bernstein, Theodore M., 72n, 141, 219–21
+Be-verbs, minimizing, 25–27, 37, 38, 39,
+138
+Bluebook, The, 157
+
+Bogert, George T., 72, 73
+Boldface type, 14, 126, 127
+both . . . and, 28
+Boyle, Thomas D., xiv, 20
+Brackets, 162–63
+Bridging between paragraphs, 67–71, 139
+Briefing and Arguing Federal Appeals, 72,
+73
+Briefs, 55–58, 60–61, 76, 128–29, 137,
+182–95
+bring an action against, 35
+Buckland, W.W., 20
+Bullets, 75, 124, 125–26, 139
+Buried verbs, 38–40, 139
+Burlingame, Beverly Ray, xiv, 164, 195
+But as sentence-starter, 20, 50, 110, 140,
+147
+Capitalization, 44, 126–27
+Cardozo, Benjamin N., 72, 73
+Careful Writer, The, 72n, 141, 219–21
+Carpenter, 5–10
+Caselaw, discussing contextually, 65–66,
+77, 80
+Casenotes, 4–5
+Child, Barbara, 107n
+Christiansen, Francis, 50n
+Chronology, 10–13, 58, 60–61, 66
+Citations in footnotes, 77–83, 124, 139
+Closers, 55, 57
+Cole, Charles Dewey, Jr., xiv, 49
+Collected Legal Papers (Holmes), 72
+Colons, 84, 125, 151–53
+Commas, 147–50
+Common Law Tradition, The, 72, 73
+Complete Stylist, The, 110
+Composition of Legislation, 107n
+Concise Treatise on Private International
+Jurisprudence, 72, 73
+Conclusion, 55, 57
+Connectives, explicit, 67–71, 77, 80
+Consequently as sentence-starter, 50
+Constructive criticism, embracing, 137–38
+
+223
+
+224
+
+Index
+Contents page, providing, 14, 127–34
+Continuity, 67–71, 139
+Contractions, 49–50, 159–60
+Contracts, 128, 131–33
+Coode, George, 91n
+Copperud, Roy, 219–21
+Corbin, Arthur L., 72, 73
+Corbin on Contracts, 72, 73
+Correlative conjunctions, 28–29
+Counterarguments, 56, 85–87, 139
+Courier typeface, avoiding, 123
+Crime and Punishment in American History, 71
+Criticism, embracing, 137–38
+Danielson, Wayne A., 50n
+Dashes, 154–55, 156
+Dates, 62–65, 148–49, 163
+Davies, Hugh Sykes, 147n
+Davis, Tina G., xiv, 164
+Deep issues, 55, 58–62
+Defendant, 44–45
+Definitions, placement in document,
+97–100
+Delaware judges, likes and dislikes, 144
+Detail, needless, 62–65
+Dialectical argument, 56, 85–86
+Dick, Robert C., 107n
+Dickerson, Reed, 72, 73, 107n
+Dictionaries of usage, 140–43, 219–21
+Dictionary of Contemporary American
+Usage, A, 84n
+Dictionary of Modern American Usage, A,
+84n, 110n, 141, 219
+Dictionary of Modern English Usage, A,
+141
+Dictionary of Modern Legal Usage, A, 43n,
+107n, 141, 219–21
+Dividing into sections, 14–16, 124
+Doak, Jerome R., xiv, 128
+Document design, 123–34
+Dollar amounts, 115
+Double-spaced text, 73, 76, 79, 80, 124
+Doublets, word–numeral, 115–17
+Doublets and triplets, 43–44
+Drafting Legal Documents, 107n
+Driedger, Elmer A., 107n
+Dworkin, Ronald, xiv, 68
+Eagleson, Robert D., 92n
+Echo links, 67–71
+Economic Analysis of the Law, 72, 73
+Editing yourself, 6, 138–40
+Editors, need for, 137–38
+either . . . or, 28
+Elegant variation, 143
+
+Elements of Drafting, The, 91n
+Elements of Legal Style, The, 72n
+Elements of Style, The, 110n, 140, 219–
+20
+Ellipsis dots, 158–59
+Em-dash, 154–55, 156
+Emphasis, points of, 31–33, 80
+En-dash, 155, 163
+Ends, 31–33, 55, 57, 100–05, 126, 139
+England, Arthur O., 50n
+Enumerations, 100–05, 109, 124, 125–26,
+139, 150, 151
+Essays on Legislative Drafting, 92n
+Estrich, Susan, 72, 73
+Evans, Bergen and Cordelia, 84n
+Exclamation points, 161
+Executive summary, 55–56, 58–62, 139
+Exercises, key to basic, 207–21
+Explicit connectives, 67–71, 77, 80
+Failure and Forgiveness, 72, 73
+farther, further, 143
+Federal Appeals, 72, 73
+Federal Practice and Procedure, 72, 73
+Federal Rules of Appellate Procedure, 106,
+123n, 126
+Flesch, Rudolf, 19n, 49n, 100n
+Flowers, Betty Sue, xiv, 5
+Flowers paradigm, 5–10
+Follett, Wilson, 84n, 141, 219
+Foote, John Alderson, 72, 73
+Footnoting citations, 66, 77–83, 124, 139
+For all the foregoing reasons, 55, 57
+Fowler, H.W., 141, 219–21
+Frank, Jerome, 49
+Friedman, Lawrence, xiv, 71
+Fundamentals of Legal Drafting, 107n
+further, farther, 143
+Fused participles, 143
+Gowers, Ernest, 141
+Grammar and usage, 140–43
+Grammar Without Tears, 147n
+Grammatical superstitions, 141, 219–21
+Gross, Karen, 72, 73
+Guidelines for Drafting and Editing Court
+Rules, 106n
+Gunning, Robert, 19n
+Haggard, Thomas R., 107n
+Handbook of the Law of Torts, 72, 73
+Handbook of the Law of Wills, 72, 73
+Hanging indents, 102, 124, 125
+has not yet attained, 30
+Headings, 14–16, 56, 75, 100, 124, 127–33
+herein, 35
+
+Index
+Highlighting ideas, 125–26
+historic, historical, 143
+Holmes, Oliver Wendell, 72
+However as sentence-starter, 50, 110
+How to Write in Plain English, 19n
+Hughes, Charles Evans, 72, 73
+Hyphens, 155–56, 163
+inasmuch as, 35, 50
+Indents, hanging, 102, 124, 125
+Infinitives, split, 140–41, 143
+Initial capitals, 126–27
+instant case, 35
+Interpretation and Application of Statutes,
+72, 73
+in the event that, 35
+-ion words, 38–40, 139
+is, 37–38, 138
+is, shall, 105
+Issue-framing, 20, 55, 58–62
+Italic type, 126
+Jargon, 34–37
+Johnson, Samuel, 57
+Judge (in writing process), 5–10
+Judges as audience in drafting, 91–93
+Judicial likes and dislikes, 14, 57, 91,
+143–44
+Keeping paragraphs short, 72–75
+Key to basic exercises, 207–21
+Kimble, Joseph, xiv, 92n, 106
+Lasorsa, Dominic L., 50n
+Law Governing Sales of Goods, The, 72, 73
+Law of Unfair Competition and TradeMarks, The, 72, 73
+LawProse Editing Method, 138–40
+Law school as a bad influence, 3, 105, 111
+Lawyerisms, 34–37, 138
+Lawyers as professional writers, 140
+Lectures in Legal History, 72
+Left-branching sentences, 102–04
+Legal Drafting, 107n
+Legal Drafting in a Nutshell, 107n
+Legalese, 34–37, 91
+Legalisms, 34–37, 138
+Legislative Drafting and Forms, 91n
+Legislative Expression, On, 91n
+Likes and dislikes, 14, 30, 57, 91, 124,
+143–45
+Linking of paragraphs, 67–71, 139
+Linking of sentences, 75–77, 80
+Lists, 100–05, 109, 124, 125–26, 139, 150,
+151
+Llewellyn, Karl N., 72, 73
+
+Logan, Michael A., xiv, 164, 181
+Long documents, 127–34
+Mackay, J.G., 91n
+Madman, 5–10
+Materials on Legal Drafting, 107n
+Matter of Principle, A, 68, 70
+may, shall, 105, 106
+may not . . . without, 30
+Meaning and understanding, 117–19
+Memorandums, 49, 58–61, 165–72
+Middles, 55, 56, 57, 86
+Minimizing be-verbs, 25–27, 37–39, 138
+Minimizing definitions, 97–100
+Misused words, 139, 140–43
+Modern American Usage, 84n, 141, 219–21
+Motions, 55, 56, 173–81
+Multiple negatives, 30–31
+must, shall, 105, 106
+Names for parties, 44–45, 45–47, 139
+Naturalness, 48–51, 139
+Negatives, 30–31
+neither . . . nor, 29
+New York Times, The, 141–42
+Nims, Harry D., 72, 73
+no fewer than, 30
+Nominalizations, 38–40, 42, 139
+Nonlinear outlining, 5–10
+Nonparallelism, 15, 28–30
+not less than, 35
+not only . . . but also, 29
+Nouns, in parallel listing, 28
+Numerals for amounts, 115–17
+Object, 23–24, 102
+Obscurity, 3–4, 47, 98, 118
+of, 39, 40–43, 139
+Omissions, noting, 158–59, 162–63
+Omitting needless words, 17–19, 62–65,
+139
+Openers, 11, 55–58, 65, 67
+Organization, 10–13, 14–16, 23–24, 55–58,
+93–97, 98–99, 124, 127–34
+Outline, 5–10, 128
+Overparticularization, 20, 62–65
+Paragraphing, 72–75, 77, 79–80, 124
+Paragraph length, 72–75, 77, 80, 109
+Parallelism, 15, 28–30, 100–05, 126
+Parentheses, 101, 153–54, 161
+Parenthetical case explanations, 78–79, 80
+Parenthetical romanettes, 101–05
+Parenthetical shorthand names, 45–47
+Partridge, Eric, 219–21
+Parts: beginning, middle, and end, 55–58
+
+225
+
+226
+
+Index
+Party names, 44–47, 139
+Passive voice, 24–27, 37, 139
+Past participle, 25
+Percentages, 115
+Periods, 126, 161
+Phrasal adjectives, 155
+Piesse, E.L., 107n
+Plain Language for Lawyers, 107n
+Plaintiff, 44–45
+Plural over singular, preference for, 114
+Plurals, forming, 160
+Pointing words, 67–71
+Posner, Richard A., xiv, 68, 72, 73
+Possessive apostrophes, 159
+Practical Legislation, 91n
+Precedent, 80, 83
+Précis writing, 58
+Preliminary statement, 55–56, 58
+Prepositional phrases, 39, 40–43
+Prepositions, ending sentences with,
+140–41
+prior to, 35
+Problems of Jurisprudence, The, 68, 69
+Pronouns, 49–50
+Prose of Law, 107n
+Prospectuses, 128, 129–30
+Prosser, William L., 72, 73
+provided that, 107–12
+Provisions, order of importance, 93–97
+Provisos, 107–12
+Punch words, 31–33, 41
+Punctuation, 139, 147–63
+pursuant to, 35
+Question marks, 160
+Quotation marks, 156–58
+Quotations, 83–85, 139, 149, 151–53, 156–
+58, 162
+Readability, 14–16, 19–23, 41, 48–50, 93–
+97, 100–01, 104, 109, 115, 123, 125,
+126–27, 137, 145–46
+Readers’ likes and dislikes, 14, 30, 57, 124,
+143–45
+Reading aloud, 50, 139
+Real names for parties, 44–45, 139
+Real Rape, 72, 73
+Redundancy, 43–44, 48
+Related material, keeping together, 10–13,
+23–24
+Repetition, 43, 80
+Revision, 17–19
+Romanettes, 101–05
+Rubin, Alvin, 81
+Russell, Alison, 91n
+
+said (adj.), 35
+same (pronoun), 35
+Sections, 14–16, 124
+Securities-disclosure documents, 99, 128,
+129–30
+Securities Disclosure in Plain English, 16,
+99n
+Seeger, Steven C., xiv, 164, 165
+self-deprecating, self-depreciating, 143
+Self-editing, 6, 138–40
+Semicolons, 126, 150–51
+Sentence endings, 31–33, 41, 139
+Sentence length, 17–19, 19–23, 100–05,
+107–09, 139
+Serial comma, 148
+Serifed typeface, 123–24
+shall, 105–07
+Shorthand names, 45–47, 153
+Signposting, 75–77
+Similarly as sentence-starter, 50
+Simplicity, 34–37, 40–43, 145
+Single-spaced text, 43, 76, 124
+Singular vs. plural, preference for, 114
+Siviglia, Peter, 92n
+Slashes, 163
+So as sentence-starter, 50
+Some Reflections on Jurisprudence, 20n
+Split infinitives, 140–41, 143
+Story line, 44, 62–65, 77
+String citations, 77, 80
+Strunk, William, Jr., 110n, 140, 219–20
+Subject–verb separation, 23–24, 104
+Subsections, 14–16
+subsequent to, 35
+such, 35
+Summaries, 57, 58, 60–65, 139
+Supreme Court of the United States,
+105–06
+Supreme Court of the United States, The,
+72, 73
+Synonyms, stringing along, 43
+Synopsis, 58–62, 139
+Table of contents, providing, 14, 127–34
+Tab settings, 126
+Technique of Clear Writing, The, 19n
+Terms of art, 34
+Texas Rules of Appellate Procedure, 106
+that, 28, 35, 67
+Thayer, James Bradley, 72, 73
+thereafter, 35
+therein, 35
+this, 35, 67
+Thornton, G.C., 107n
+Thring, Lord, 91n
+
+Index
+Tigar, Michael E., 72, 73
+Tone, 48–49, 139
+Topic sentences, 65–67
+Transitions, 14, 67, 80, 139
+Treatise on Equity, A, 72, 73
+Treatise on the American Law of Real Property, A, 108n
+Trimble, John R., xiv, 72n, 138
+Trusts, 72, 73
+Typeface, 123–24
+Typography, 123–24, 126
+Underlining, 126
+United States Air Force, 50
+United States Supreme Court, 105–06
+Unparallel phrasing, 15, 28–30
+Usage guides, 140–43
+Verb–object separation, 23–24
+Verbosity, combatting, 17–19, 38–44, 139
+Verbs, 28, 37–38, 102–04, 138
+Virgules, 163
+Walsh, William F., 72, 73
+was, 37–38, 138
+
+Washburn, Emory, 108n
+we, 50
+Wensberg, Erik, 141
+were, 37–38, 138
+Wherefore, premises considered, 55, 57
+Whether-issues, avoiding, 58
+Whirlybirds, 7–10
+White, E.B., 110n, 140, 219–20
+White space, 123, 124
+Wiener, Frederick B., 72, 73
+will, shall, 105, 106
+Williston, Samuel, 72, 73
+Winning Brief, The, 55n, 137n
+Winokur, Jon, 57n
+Wisdom, John Minor, 81
+Wordiness, combatting, 17–19, 38–44, 139
+Word–numeral doublets, 115–17
+Words and Phrases, 106
+Wright, Charles Alan, 72, 73
+Writers on Writing, 57n
+Writing Contracts, 92n
+Writing process, 3–5, 5–10
+Writing with Style, 72n, 138
+you, 50
+
+227
+
+
\ No newline at end of file
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new file mode 100644
index 0000000..907600b
Binary files /dev/null and b/docs/sources/garner-legal-writing.epub differ
diff --git a/docs/sources/instructions-chairman-appeals-2024.txt b/docs/sources/instructions-chairman-appeals-2024.txt
new file mode 100644
index 0000000..c64f053
--- /dev/null
+++ b/docs/sources/instructions-chairman-appeals-2024.txt
@@ -0,0 +1,261 @@
+‫הנחיות יו"ר ועדת המשנה לעררים על החלטות הוועדה‬
+‫המחוזית והולחוף‬
+
+‫יחידה‬
+
+‫ועדת המשנה לעררים‬
+‫המועצה הארצית לתכנון‬
+‫ולבניה‬
+
+‫מס' נוהל‬
+
+‫תאריך פרסום מקורי‬
+
+‫תאריך פרסום עדכני‬
+
+‫‪2019/1‬‬
+
+‫‪11.03.2019‬‬
+
+‫‪26.03.2024‬‬
+
+‫הנחיות יו"ר ועדת המשנה לעררים על‬
+‫החלטות הוועדה המחוזית והולחוף‬
+‫על מנת לייעל את ההליכים לפני ועדת המשנה לעררים ולעמוד בלוחות הזמנים הקצובים‬
+‫בתקנות התכנון והבניה (ערר בפני המועצה הארצית)‪ ,‬התשל"ב‪ ,1972 -‬ובתקנות התכנון‬
+‫והבניה ( סדרי דין בפני ועדת הערר למימי חופין)‪ ,‬תש"ל‪( 1969-‬להלן ביחד‪ :‬תקנות העררים) ‪,‬‬
+‫הוחלט לגבש את ההנחיות הבאות ולהביאן לידיעת הציבור‪.‬‬
+‫ההנחיות יחולו על הליכי הערר החל ממועד פרסומן‪.‬‬
+‫חשוב‪ :‬כל תגובה‪ ,‬בקשה או פניה בנוגע לערר‪ ,‬לרבות בקשה להתווסף לרשימת התפוצה‬
+‫בדוא"ל או הסרה ממנה‪ ,‬יש להפנות למזכירות ועדת המשנה לעררים בכתובת הדוא"ל ‪:‬‬
+‫‪ Arr@iplan.gov.il‬להלן‪ ( :‬המזכירות) ‪ .‬הגשת פניה לגורם אחר או באמצעי אחר כמוה אי‪-‬‬
+‫הגשה‪.‬‬
+‫‪ . 1‬הגשת בקשות‬
+‫א‪.‬‬
+
+‫כל בקשה המוגשת לוועדה ( לרבות‪ :‬בקשות להארכת מועד‪ ,‬בקשות לשינוי מועד דיון ‪,‬‬
+
+‫בקשות לצירוף מסמכים‪ ,‬בקשות להצטרפות כמשיבים לערר וכדו') תוגש למזכירות‬
+‫בליווי התייחסות יתר הצדדים להליך הערר כפי שקבעו תקנות העררים‪ .‬בקשות שיוגשו‬
+‫ללא עמדת יתר הצדדים כאמור‪ ,‬או הסבר בנושא‪ ,‬יושבו למבקש על‪-‬ידי המזכירות‬
+‫לצורך השלמה‪.‬‬
+‫ב‪.‬‬
+
+‫בקשה להארכת מועד להגשת ערר‬
+‫על פי סעיף ‪(110‬ד) לחוק התכנון והבניה‪ ,‬התשכ"ה‪( 1965-‬להלן‪ " :‬החוק")‪ ,‬ערר יוגש‬
+‫בתוך שלושים ימים מהיום שבו הומצאה לעורר החלטת הוועדה המחוזית‪ ,‬או הרשות‬
+‫לערור‪ ,‬לפי העניין‪ .‬עררים שיוגשו באיחור וללא ארכה שאושרה על ידי יו"ר הוועדה‪,‬‬
+‫יידחו על הסף‪.‬‬
+‫(‪ )1‬במקרה שבו נבצר מהעורר להגיש את הערר במועד‪ ,‬יש להגיש בקשה להארכת‬
+‫מועד ‪ .‬בבקשה יש לציין את המועד שבו התקבלה החלטת הוועדה המחוזית או הרשות‬
+‫לערור ‪,‬לפי העניין‪.‬‬
+‫(‪ )2‬בקשה להארכת מועד להגשת ערר ת היה מנומקת‪ ,‬ויצורפו לה תגובות הצדדים‬
+‫לבקשה‪.‬‬
+‫(‪ )3‬במקרה שבו הבקשה מתבססת על טענות עובדתיות )כגון – לעניין המועד שבו‬
+‫הומצאה לעורר החלטת הוועדה המחוזית או הרשות לערור(‪ ,‬יש לתמוך את הבקשה‬
+‫בראיות מתאימות‪.‬‬
+
+‫|‪1‬‬
+
+‫הנחיות יו"ר ועדת המשנה לעררים על החלטות הוועדה‬
+‫המחוזית והולחוף‬
+
+‫ג‪.‬‬
+
+‫יחידה‬
+
+‫ועדת המשנה לעררים‬
+‫המועצה הארצית לתכנון‬
+‫ולבניה‬
+
+‫מס' נוהל‬
+
+‫תאריך פרסום מקורי‬
+
+‫תאריך פרסום עדכני‬
+
+‫‪2019/1‬‬
+
+‫‪11.03.2019‬‬
+
+‫‪26.03.2024‬‬
+
+‫בקשות לשינוי מועד הדיון‬
+‫(‪ ) 1‬ככלל‪ ,‬דיוני ועדת המשנה לעררים מתקיימים בימי חמישי‪.‬‬
+‫(‪ ) 2‬הכלל הוא כי הדיונים יתקיימו במועד שנקבע להם‪ .‬שיקולי נוחות‪ ,‬הסכמת‬
+‫הצדדים ‪ ,‬קיום משא ומתן לפשרה‪ ,‬נסיבות אישיות או עומס עבודה אינם מהווים‪,‬‬
+‫ככלל‪ ,‬הצדקה לדחיית הדיון‪ .‬במקרים של נסיבות אישיות חריגות ובלתי‪-‬צפויות‬
+‫תישקל דחיית הדיון‪ ,‬תוך התחשב ות במאפייני התוכנית ובעיכוב שייגרם כתוצאה‬
+‫מאישור הדחייה‪.‬‬
+‫(‪ ) 3‬בקשה לדחיית דיון בשל קיומו של דיון מקביל תוגש מיד עם קבלת הידיעה על‬
+‫מועד הדיון‪ ,‬ותישקל בהתאם לנסיבות‪.‬‬
+‫(‪ ) 4‬כל בקשה לשינוי מועד הדיון בערר תכלול לפחות שלושה מועדים חלופיים לקיום‬
+‫הדיון‪ ,‬שתואמו מבעוד מועד מול מזכירות הוועדה ומוסכמים על יתר הצדדים‬
+‫לערר ‪ ,‬אין מניעה להגיש בקשה להקדמת הדיון בערר‪ ,‬הכול בכפוף ללוח הזמנים‬
+‫של הוועדה ‪ .‬אין באמור לעיל כדי לגרוע מסמכות הוועדה לקבוע דיון במועד אחר‬
+‫המתאים ליומנה‪.‬‬
+
+‫‪ .2‬המשיבים בערר‬
+‫בכתב הערר יש לפרט את המשיבים בערר לפי תקנות הע ררים‪ ,‬ואותם בלבד‪ ,‬כאמור להלן‪:‬‬
+‫א‪ .‬על פי תקנה ‪ 4‬לתקנות התכנון והבניה (ערר בפני המועצה הארצית)‪ ,‬התשל"ב‪,1972 -‬‬
+‫המשיבים בערר הם‪:‬‬
+‫(‪ ) 1‬בערר לפי סעיפים ‪(78‬ב)(‪ )1‬או ‪(98‬ג) לחוק – הוועדה המחוזית‪ ,‬הוועדה המקומית‬
+‫הנוגעת בדבר ומגיש התוכנית;‬
+‫(‪ ) 2‬בערר לפי סעיף ‪(110‬א) לחוק – הוועדה המחוזית‪ ,‬הוועדה המקומית הנוגעת‬
+‫בדבר ומגיש התוכנית; וכן‪ ,‬לפי העניין‪ ,‬מי שהתנגדותו לתוכנית נתקבלה ובעקבות‬
+‫זאת הוגש הערר או מי שהשמיע טענות לפי סעיף ‪(106‬ב) וטענותיו התקבלו‬
+‫ובעקבות זאת הוגש הערר‪.‬‬
+‫ב‪.‬‬
+
+‫על פי תקנה ‪ 4‬לתקנות התכנון והבניה ( סדרי דין בפני ועדת הערר למימי חופין)‪,‬‬
+‫התש"ל‪ 1969-‬המשיבים בערר על החלטת הוועדה לשמירת הסביבה החופית הם‬
+‫הוועדה לשמירת הסביבה החופית‪ ,‬וכן מי שהגיש תכנית שאושרה על ידיה לפי סעיף‬
+‫‪ 4‬לתוספת השנייה לחוק‪ ,‬או מי שהגיש בקשה להיתר שאושרה על ידיה לפי סעיף ‪5‬‬
+‫לתוספת השנייה לחוק‪.‬‬
+
+‫ג‪.‬‬
+
+‫ערר שיוגש שלא בהתאם ל רשימת המשיבים כאמור בתקנות הנ"ל יידרש בתיקון‬
+‫רשימת המשיבים בהתאם להנחיות המזכירות‪ .‬המשיבים להליך יובהרו גם במסגרת‬
+‫הזימון שיישלח לדיון‪ ,‬וראו סעיף ‪(4‬ג) להלן‪.‬‬
+
+‫|‪2‬‬
+
+‫הנחיות יו"ר ועדת המשנה לעררים על החלטות הוועדה‬
+‫המחוזית והולחוף‬
+
+‫ד‪.‬‬
+
+‫יחידה‬
+
+‫ועדת המשנה לעררים‬
+‫המועצה הארצית לתכנון‬
+‫ולבניה‬
+
+‫מס' נוהל‬
+
+‫תאריך פרסום מקורי‬
+
+‫תאריך פרסום עדכני‬
+
+‫‪2019/1‬‬
+
+‫‪11.03.2019‬‬
+
+‫‪26.03.2024‬‬
+
+‫משיבים נוספים – הרואה עצמו משיב לערר שהוגש בשל קבלת התנגדותו‪ ,‬ולא צוין‬
+‫ברשימת המשיבים לערר בזימון ל דיון‪ ,‬יגיש בקשת הצטרפות תוך ציון הסוגייה‬
+‫בהתנגדות שהובילה להגשת הערר‪ .‬גורם שלא מופיע ברשימת המשיבים שנשלחה‬
+‫במסגרת הזימון לדיון‪ ,‬ומבקש להיות משיב בערר‪ ,‬יגיש בקשה מנומקת בהתאם‬
+‫להנחיות בסעיף ‪ 1‬לעיל‪.‬‬
+
+‫‪ . 3‬הגשת ערר על ידי רשות מקומית או ועדה מקומית הנוגעת בדבר לפי סעיף ‪(110‬א)(‪()1‬ב)‬
+‫לחוק‬
+‫א‪.‬‬
+
+‫בהתאם לחוק וההלכה הפסוקה‪ ,‬ערר לפי סעיף ‪(110‬א)(‪()1‬ב) לחוק יוגש בליווי החלטת‬
+‫מליאת הרשות‪/‬הוועדה המאשרת את הגשת הערר (להלן‪ :‬החלטת מליאה)‪.‬‬
+
+‫ב‪.‬‬
+
+‫כאשר לוח הזמנים אינו מאפשר את כינוס מליאת הרשות‪/‬הוועדה קודם להגשת‬
+‫הערר‪ ,‬יש לעדכן את מזכירות הוועדה מתי עתידה המליאה להתכנס בנדון‪ ,‬ובכל‬
+‫מקרה החלטת מליאה תומצא למזכירות עד ‪ 30‬ימים לאחר הגשת הערר‪.‬‬
+
+‫ג‪.‬‬
+
+‫לא הומצאה החלטת המליאה לוועדה בתוך ‪ 30‬ימים מהגשת הערר‪ ,‬תישקל דחיית‬
+‫הערר על הסף ללא התראה נוספת‪.‬‬
+
+‫‪ . 4‬איחוד עררים‪ ,‬הזימון לדיון והגשת תשובות לערר‬
+‫א‪.‬‬
+
+‫מזכירות הוועדה תוודא טרם שיבוץ ערר לדיון כי לא הוגשו עררים נוספים‪ ,‬בזכות או‬
+‫בהתאם לרשות שניתנה על‪ -‬ידי יו"ר הוועדה המחוזית לפי סעיף ‪(110‬א)(‪ )2‬לחוק‪.‬‬
+
+‫ב‪.‬‬
+
+‫בהתאם לתקנות העררים‪ ,‬ככל שהוגשו כמה עררים בגין החלטה באותה התוכנית‪,‬‬
+‫ככלל יאוחדו העררים לדיון אחד שייערך בעררים על תוכנית‪.‬‬
+
+‫ג‪.‬‬
+
+‫ז ימון לדיון בערר יישלח בדואר אלקטרוני לכלל הצדדים בערר וכן לבעלי עניין נוספים‬
+‫לידיעה שייכתבו ברשימה בזימון לדיון‪ ,‬במצורף לכתב הערר‪.‬‬
+
+‫ד‪.‬‬
+
+‫הגשת תשובות לערר‪:‬‬
+‫(‪ ) 1‬בהתאם לתקנות העררים‪ ,‬על המשיבים להגיש תשובתם לערר בתוך ‪ 30‬ימים‪.‬‬
+‫המועד להגשת התשובות ייכתב בזימון לדיון‪.‬‬
+‫(‪ ) 2‬ה גשת חומרים תיעשה באמצעות הדוא"ל כמופיע מטה לידי המזכירות‪ .‬עם זאת ‪,‬‬
+
+‫המזכירות עשויה לפנות ולבקש הגשת חומרים גם באופן פיזי‪ ,‬בהתאם לשיקול‬
+‫דעתה‪.‬‬
+‫ה ‪ .‬הנגשת המידע מתיק הערר‪ :‬כתבי הערר‪ ,‬התשובות וחומרים נוספים שהוגשו מטעם‬
+‫הצדדים יועלו לאתר מנהל התכנון‪ ,‬בדף הערר שקישור א ליו יישלח גם על‪-‬ידי‬
+‫המזכירות ‪ .‬מצגות שהוצגו בדיון יועלו לאתר הערר לאחר הדיון‪ .‬המזכירות מעדכנת‬
+‫את החומרים מעת לעת באתר הערר‪ ,‬ומומלץ לעקוב אחר מידע חדש שמתפרסם‪.‬‬
+‫יתכן שהמזכירות תפיץ חלק מהחומרים הנ"ל גם באמצעות רשימת התפוצה בדוא"ל‪.‬‬
+
+‫|‪3‬‬
+
+‫הנחיות יו"ר ועדת המשנה לעררים על החלטות הוועדה‬
+‫המחוזית והולחוף‬
+
+‫יחידה‬
+
+‫ועדת המשנה לעררים‬
+‫המועצה הארצית לתכנון‬
+‫ולבניה‬
+
+‫מס' נוהל‬
+
+‫תאריך פרסום מקורי‬
+
+‫תאריך פרסום עדכני‬
+
+‫‪2019/1‬‬
+
+‫‪11.03.2019‬‬
+
+‫‪26.03.2024‬‬
+
+‫‪ .5‬הדיון בערר‬
+‫א‪.‬‬
+
+‫הצדדים יתייצבו לדיון בערר בהתאם למועד בזימון לדיון‪.‬‬
+
+‫ב‪.‬‬
+
+‫הרכב ועדת המשנה לעררים ( בעררים על החלטות הוועדות המחוזיות והוולחו"ף )‬
+‫נקבע בהחלטת מליאת המועצה הארצית מיום ‪ 10.06.2014:‬נציג שר המשפטים יהיה‬
+‫היו"ר; נציג מנכ"ל מינהל התכנון; נציג השר הגנת הסביבה או נציג מנהל רשות הטבע‬
+‫והגנים; נציג שר הבינוי והשיכון או נציג בעל הכשרה בשיכון ובניה; שני נציגי השלטון‬
+‫המקומי‪ .‬בהחלטת המועצה הארצית הוגדרו גם ממלאי מקום לחברים ‪ .‬משכך‪ ,‬בהתאם‬
+‫לסעיף ‪(42‬א) לחוק‪ ,‬המניין החוקי בישיבות ועדת המשנה לעררים הוא ‪.3‬‬
+
+‫ג‪.‬‬
+
+‫ככלל‪ ,‬הדיון בערר יתקיים באופן חזיתי ( פרונטלי) במשרדי מי נהל התכנון בירושלים‬
+‫ועל הצדדים (בעלי דין‪ ,‬באי‪ -‬כוח ויועצים מקצועיים) להיערך להצגת הטענות באולם‬
+‫הוועדה‪.‬‬
+
+‫ד ‪ .‬מספר ימים טרם הדיון בערר תישלח המזכירות הודעת תזכורת לצדדים עם מיקום‬
+‫הדיון במדויק (להלן בסעיף זה‪ :‬ההודעה) ‪ .‬ההודעה עשויה לכלול הנחיה לפיה הדיון‬
+‫יתקיים גם בהיוועדות חזותית‪ .‬במקרה זה תכלול ההודעה מידע והנחיות נוספות‬
+‫בהקשר זה‪.‬‬
+‫ה ‪ .‬צד לדיון בערר שמבקש להציג מצגת יעביר למען הסדר הטוב את העתקה למזכירות‬
+‫הוועדה לכל המאוחר ערב הדיון הקבוע בערר‪.‬‬
+‫ו‪.‬‬
+
+‫צד לדיון בערר אשר הגיש במהלך הדיון חומר נוסף שיו"ר הוועדה אישר הגשתו‪ ,‬יעביר‬
+‫למזכירות הוועדה העתק במועד הדיון בערר לצורך הפצתו ליתר הצדדים‪.‬‬
+
+‫מורן בראון‪,‬‬
+‫עו"ד יו"ר ועדת המשנה לעררים‬
+
+‫|‪4‬‬
+
+
\ No newline at end of file
diff --git a/docs/sources/instructions-planning-appeals.txt b/docs/sources/instructions-planning-appeals.txt
new file mode 100644
index 0000000..4db65ec
--- /dev/null
+++ b/docs/sources/instructions-planning-appeals.txt
@@ -0,0 +1,220 @@
+‫אגף תקצוב ורכש‬
+
+‫הנחיות עזר להגשת עררים בועדת ערר מחוזיות לתכנון ובניה‬
+
+‫הנחיות עזר להגשת ערר בנושא היתרי בניה‪:‬‬
+‫כתב הערר יוגש תוך ‪ 30‬ימים מיום קבלת החלטת הועדה המקומית‬
+‫‪ .1‬הערר יוגש למזכירות ועדת הערר בכתב‪ ,‬בשישה עותקים‪ ,‬בצירוף עותקים נוספים לפי מספר‬
+‫המשיבים‪.‬‬
+‫‪.2‬‬
+
+‫על הערר לכלול את כל אלה‪:‬‬
+‫‪ .2.1‬שם העורר‪ ,‬מספר ת‪.‬ז‪ ,‬מען‪ ,‬מספר טלפון וטלפון נייד‪ ,‬מספר פקס וכתובת מייל (במידה‬
+‫ויש)‪.‬‬
+‫‪ .2.2‬פרטי המשיבים‪ :‬שמותיהם ‪ ,‬מענם‪ ,‬מספר טלפון‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‬
+‫‪ .2.2‬במידה והעורר מיוצג על ידי עורך דין‪ -‬שם ב"כ העורר‪ ,‬מען למסירת מסמכים‪ ,‬מספר‬
+‫טלפון‪ ,‬מספר פקס‪ ,‬כתובת מייל וייפוי כוח‪.‬‬
+‫‪ .2.2‬פרטי הבקשה שלגביה ניתנה ההחלטה נושא הערר (פרטי המקרקעין‪/‬הנכס‪ -‬כתובת‪ ,‬מס'‬
+‫גוש ומס' חלקה)‬
+‫‪ .2.2‬פרטי ההחלטה שעליה מוגש הערר והעתק מהודעת הועדה או הרשות על ההחלטה‪.‬‬
+‫‪ .2.2‬נימוקי הערר‬
+‫‪ .2.2‬עיקר הראיות שהעורר מבקש להביא בפני ועדת הערר‪.‬‬
+‫‪ .2.2‬כאשר הערר מוגש על ידי מבקש ההיתר‪ -‬עליו לצרף לכתב הערר עותק מהגרמושקה‬
+‫נשוא ההחלטה‪.‬‬
+‫‪ .2.2‬כאשר העורר הוא מי שהגיש התנגדות לבקשה להיתר או מבקש ההיתר‪ ,‬על הועדת‬
+‫המקומית לצרף לתגובתה עותק מודפס מהגרמושקה נשוא ההחלטה‪.‬‬
+
+‫לתשומת ליבכם‪:‬‬
+‫‪‬‬
+
+‫הגשת הערר אינה כרוכה בתשלום אגרה‪.‬‬
+
+‫‪‬‬
+
+‫את הערר יש להגיש לועדת הערר במסירה ידנית או בדואר רשום ובלבד שעמד בכל דרישות‬
+‫הדין להגשת הערר והגיע לועדת הערר במועד הקבוע בחוק להגשת ערר‪.‬‬
+‫המועד בו נתקבל הערר בדואר רשום במזכירות הועדה ירשם כמועד בו נתקבל הערר‪.‬‬
+‫ערר לא ניתן להעביר באמצעות פקס‪/‬מייל‪.‬‬
+
+‫‪‬‬
+
+‫ערר שהגיע לועדה שלא במועד‪ ,‬לא יתקבל אלא אם ניתנה החלטה המאשרת ארכה להגשתו‪.‬‬
+
+‫‪‬‬
+
+‫לבקשת עורר‪ ,‬תמציא לו הועדה המקומית את פרטי הצדדים להליך נושא הערר‪ ,‬שמותיהם‬
+‫ומעניהם תוך שלושה ימים מיום הגשת הבקשה‪.‬‬
+
+‫‪‬‬
+
+‫שימו לב ❤ הערר צריך להיות חתום על ידי העורר‪.‬‬
+
+‫הנחיות אלו כלליות ומשמשות כעזר לשירות הציבור‪ ,‬בכפוף לקבוע בדין ובתקנות‪ ,‬הגובר על האמור בהנחיות‬
+‫אלה‪ ,‬ההנחיות אינן ממצות ואינן כוללות את כל הוראות הדין הרלוונטיות לעניין‪ .‬כמו כן ייתכן וקיימות דרישות‬
+‫נוספות בוועדות הערר השונות והן ימסרו על ידי הועדה‪.‬‬
+‫הנחיות אלו אינן מהוות תחליף לייעוץ משפטי‪.‬‬
+‫עמוד ‪1‬‬
+
+‫אגף תקצוב ורכש‬
+
+‫הנחיות עזר להגשת ערר בעניין תכנית‪:‬‬
+‫כתב הערר יוגש תוך ‪ 15‬ימים מיום קבלת ההחלטה‬
+‫‪ .1‬הערר יוגש למזכירות ועדת הערר בכתב‪ ,‬בשישה עותקים‪ ,‬בצירוף עותקים נוספים לפי מספר‬
+‫המשיבים‪.‬‬
+‫‪ .2‬על הערר לכלול את כל אלה‪:‬‬
+‫‪ .2.1‬שם העורר‪ ,‬מענו‪ ,‬מספר טלפון וטלפון נייד‪ ,,‬מספר פקס וכתובת מייל (במידה ויש)‪.‬‬
+‫‪ .2.2‬פרטי המשיבים‪ :‬שמותיהם ‪ ,‬מענם‪ ,‬מספר טלפון‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‬
+‫‪ .2.2‬במידה והעורר מיוצג על ידי עורך דין‪ -‬שם ב"כ העורר‪ ,‬מען למסירת מסמכים‪ ,‬מספר‬
+‫טלפון‪ ,‬מספר פקס‪ ,‬כתובת מייל וייפוי כוח‪.‬‬
+‫‪ .2.2‬פרטי התכנית שלגביה ניתנה ההחלטה נושא הערר (פרטי המקרקעין‪ /‬הנכס‪ -‬כתובת‪ ,‬מס'‬
+‫גוש ומס' חלקה)‬
+‫‪ .2.2‬נימוקי הערר‬
+‫‪ .2.2‬עיקר הראיות שהעורר מבקש להביא בפני ועדת הערר (נספחים וכל מסמך הנוגע לערר)‬
+‫‪ .2.2‬החלטת הועדה המקומית לאשר‪/‬לדחות התכנית‪.‬‬
+‫‪ .2.2‬כאשר הערר מוגש על ידי מגיש התכנית‪ -‬עליו לצרף לכתב הערר עותק מתקנון ומתשריט‬
+‫התכנית‪.‬‬
+‫‪ .2.2‬כאשר הערר מוגש על ידי מי שהגיש התנגדות לתכנית או מגיש התכנית ‪ -‬על הועדה‬
+‫המקומית לצרף לתגובתה עותק מודפס מתקנון ומתשריט התכנית‪.‬‬
+‫לתשומת ליבכם‪:‬‬
+‫‪‬‬
+
+‫הגשת הערר אינה כרוכה בתשלום אגרה‪.‬‬
+
+‫‪‬‬
+
+‫את הערר יש להגיש לועדת הערר במסירה ידנית או בדואר רשום ובלבד שעמד בכל דרישות‬
+‫הדין להגשת הערר והגיע לועדת הערר במועד הקבוע בחוק להגשת ערר‪.‬‬
+‫המועד בו נתקבל הערר בדואר רשום במזכירות הועדה ירשם כמועד בו נתקבל הערר‪.‬‬
+‫ערר לא ניתן להעביר באמצעות פקס‪/‬מייל‪.‬‬
+
+‫‪‬‬
+
+‫ערר שהגיע לועדה שלא במועד‪ ,‬לא יתקבל אלא אם ניתנה החלטה המאשרת ארכה להגשתו‪.‬‬
+
+‫‪‬‬
+
+‫לבקשת עורר‪ ,‬תמציא לו הועדה המקומית את פרטי הצדדים להליך נושא הערר‪ ,‬שמותיהם‬
+‫ומעניהם תוך שלושה ימים מיום הגשת הבקשה‪.‬‬
+
+‫‪‬‬
+
+‫שימו לב❤ הערר צריך להיות חתום על ידי העורר‪.‬‬
+
+‫הנחיות אלו כלליות ומשמשות כעזר לשירות הציבור‪ ,‬בכפוף לקבוע בדין ובתקנות‪ ,‬הגובר על האמור בהנחיות‬
+‫אלה‪ ,‬ההנחיות אינן ממצות ואינן כוללות את כל הוראות הדין הרלוונטיות לעניין‪ .‬כמו כן ייתכן וקיימות דרישות‬
+‫נוספות בוועדות הערר השונות והן ימסרו על ידי הועדה‪.‬‬
+‫הנחיות אלו אינן מהוות תחליף לייעוץ משפטי‪.‬‬
+‫עמוד ‪2‬‬
+
+‫אגף תקצוב ורכש‬
+
+‫הנחיות עזר להגשת ערר בעניין תשריט חלוקה‬
+‫כתב הערר יוגש תוך ‪ 30‬ימים מיום קבלת החלטת הועדה המקומית‬
+‫‪ .1‬הערר יוגש למזכירות ועדת הערר בכתב‪ ,‬בשישה עותקים‪ ,‬בצירוף עותקים נוספים לפי מספר‬
+‫המשיבים‪.‬‬
+‫‪ .2‬על הערר לכלול את כל אלה‪:‬‬
+‫‪ .2.1‬שם העורר‪ ,‬מענו‪ ,‬מספר טלפון וטלפון נייד‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‪.‬‬
+‫‪ .2.2‬פרטי המשיבים‪ :‬שמותיהם ‪ ,‬מענם‪ ,‬מספר טלפון‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‬
+‫כאשר יש לציין בפרטי הועדה המקומית את תאריך הגשת הבקשה‪.‬‬
+‫‪ .2.2‬במידה והעורר מיוצג על ידי עורך דין‪ -‬שם ב"כ העורר‪ ,‬מספר רישיון‪ ,‬מען למסירת‬
+‫מסמכים‪ ,‬מספר טלפון‪ ,‬מספר פקס‪ ,‬כתובת מייל וייפוי כוח‪.‬‬
+‫‪ .2.2‬פרטי הבקשה שלגביה ניתנה ההחלטה נושא הערר (פרטי המקרקעין‪ /‬הנכס‪ -‬כתובת‪ ,‬מס'‬
+‫גוש ומס' חלקה)‬
+‫‪ .2.2‬פרטי ההחלטה שעליה מוגש הערר והעתק מהודעת הועדה או הרשות על ההחלטה‪.‬‬
+‫‪ .2.2‬נימוקי הערר‬
+‫‪ .2.2‬עיקר הראיות שהעורר מבקש להביא בפני ועדת הערר‪.‬‬
+‫לתשומת ליבכם‪:‬‬
+‫‪‬‬
+
+‫הגשת הערר אינה כרוכה בתשלום אגרה‪.‬‬
+
+‫‪‬‬
+
+‫את הערר יש להגיש לועדת הערר במסירה ידנית או בדואר רשום ובלבד שעמד בכל דרישות‬
+‫הדין להגשת הערר והגיע לועדת הערר במועד הקבוע בחוק להגשת ערר‪.‬‬
+‫המועד בו נתקבל הערר בדואר רשום במזכירות הועדה ירשם כמועד בו נתקבל הערר‪.‬‬
+‫ערר לא ניתן להעביר באמצעות פקס‪/‬מייל‪.‬‬
+
+‫‪‬‬
+
+‫ערר שהגיע לועדה שלא במועד‪ ,‬לא יתקבל אלא אם ניתנה החלטה המאשרת ארכה להגשתו‪.‬‬
+
+‫‪‬‬
+
+‫לבקשת עורר‪ ,‬תמציא לו הועדה המקומית את פרטי הצדדים להליך נושא הערר‪ ,‬שמותיהם‬
+‫ומעניהם תוך שלושה ימים מיום הגשת הבקשה‪.‬‬
+
+‫‪‬‬
+
+‫שימו לב ❤ הערר צריך להיות חתום על ידי העורר‪.‬‬
+
+‫הנחיות אלו כלליות ומשמשות כעזר לשירות הציבור‪ ,‬בכפוף לקבוע בדין ובתקנות‪ ,‬הגובר על האמור בהנחיות‬
+‫אלה‪ ,‬ההנחיות אינן ממצות ואינן כוללות את כל הוראות הדין הרלוונטיות לעניין‪ .‬כמו כן ייתכן וקיימות דרישות‬
+‫נוספות בוועדות הערר השונות והן ימסרו על ידי הועדה‪.‬‬
+‫הנחיות אלו אינן מהוות תחליף לייעוץ משפטי‪.‬‬
+‫עמוד ‪3‬‬
+
+‫אגף תקצוב ורכש‬
+
+‫הנחיות עזר להגשת ערר על הנחיות מרחביות‬
+‫הערר יוגש תוך ‪ 30‬ימים מיום פרסום ההנחיות המרחביות‬
+‫‪ .1‬הערר יוגש למזכירות ועדת הערר בכתב‪ ,‬בשישה עותקים‪ ,‬בצירוף עותקים נוספים לפי מספר‬
+‫המשיבים‪.‬‬
+‫‪ .2‬על הערר לכלול את כל אלה‪:‬‬
+‫‪ .2.1‬שם העורר‪ ,‬מענו‪ ,‬מספר טלפון וטלפון נייד‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‪.‬‬
+‫‪ .2.2‬פרטי המשיבים‪ :‬שמותיהם ‪ ,‬מענם‪ ,‬מספר טלפון‪ ,‬מספר פקס וכתובת מייל (במידה ויש)‬
+‫‪ .2.2‬במידה והעורר מיוצג על ידי עורך דין‪ -‬שם ב"כ העורר‪ ,‬מען למסירת מסמכים‪ ,‬מספר‬
+‫טלפון‪ ,‬מספר פקס‪ ,‬כתובת מייל וייפוי כוח‪.‬‬
+‫‪ .2.2‬פרטי הבקשה שלגביה ניתנה ההחלטה נושא הערר (פרטי המקרקעין‪ /‬הנכס‪ -‬כתובת‪ ,‬מס'‬
+‫גוש ומס' חלקה)‬
+‫‪ .2‬פרטי ההחלטה שעליה מוגש הערר‪ ,‬והעתק מהודעת הועדה או הרשות על ההחלטה‪.‬‬
+‫‪ .2.1‬נימוקי הערר;‬
+‫‪ .2.2‬עיקר הראיות שהעורר מבקש להביא בפני ועדת הערר‪.‬‬
+‫לתשומת ליבכם‪:‬‬
+‫‪‬‬
+
+‫הגשת הערר אינה כרוכה בתשלום אגרה‪.‬‬
+
+‫‪‬‬
+
+‫את הערר יש להגיש לועדת הערר במסירה ידנית או בדואר רשום ובלבד שעמד בכל דרישות‬
+‫הדין להגשת הערר והגיע לועדת הערר במועד הקבוע בחוק להגשת ערר‪.‬‬
+‫המועד בו נתקבל הערר בדואר רשום במזכירות הועדה ירשם כמועד בו נתקבל הערר‪.‬‬
+‫ערר לא ניתן להעביר באמצעות פקס‪/‬מייל‪.‬‬
+
+‫‪‬‬
+
+‫לבקשת עורר‪ ,‬תמציא לו הועדה המקומית את פרטי הצדדים להליך נושא הערר‪ ,‬שמותיהם‬
+‫ומעניהם תוך שלושה ימים מיום הגשת הבקשה‪.‬‬
+
+‫‪‬‬
+
+‫ערר שהגיע לועדה שלא במועד‪ ,‬לא יתקבל אלא אם ניתנה החלטה המאשרת ארכה להגשתו‪.‬‬
+
+‫‪‬‬
+
+‫יש לציין תאריך המצאת ההחלטה לידי העורר‪.‬‬
+
+‫‪‬‬
+
+‫יש לציין באם הערר המוגש קשור לערר קודם שהוגש בעבר‪.‬‬
+
+‫‪‬‬
+
+‫שימו לב ❤ הערר צריך להיות חתום על ידי העורר‪.‬‬
+
+‫הנחיות אלו כלליות ומשמשות כעזר לשירות הציבור‪ ,‬בכפוף לקבוע בדין ובתקנות‪ ,‬הגובר על האמור בהנחיות‬
+‫אלה‪ ,‬ההנחיות אינן ממצות ואינן כוללות את כל הוראות הדין הרלוונטיות לעניין‪ .‬כמו כן ייתכן וקיימות דרישות‬
+‫נוספות בוועדות הערר השונות והן ימסרו על ידי הועדה‪.‬‬
+‫הנחיות אלו אינן מהוות תחליף לייעוץ משפטי‪.‬‬
+‫עמוד ‪4‬‬
+
+‫אגף תקצוב ורכש‬
+
+‫הנחיות אלו כלליות ומשמשות כעזר לשירות הציבור‪ ,‬בכפוף לקבוע בדין ובתקנות‪ ,‬הגובר על האמור בהנחיות‬
+‫אלה‪ ,‬ההנחיות אינן ממצות ואינן כוללות את כל הוראות הדין הרלוונטיות לעניין‪ .‬כמו כן ייתכן וקיימות דרישות‬
+‫נוספות בוועדות הערר השונות והן ימסרו על ידי הועדה‪.‬‬
+‫הנחיות אלו אינן מהוות תחליף לייעוץ משפטי‪.‬‬
+‫עמוד ‪5‬‬
+
+
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+How Judges Think
+
+
+
+
+
+How Judges Think
+
+
+
+
+
+Richard A. Posner
+
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+
+
+
+HARVARD UNIVERSITY PRESS
+
+
+
+
+
+Cambridge, Massachusetts
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+
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+
+
+London, England
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+
+
+
+
+Copyright © 2008 by the President and Fellows of Harvard College
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+
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+All rights reserved
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+
+
+Printed in the United States of America
+
+
+
+
+
+First Harvard University Press paperback edition, 2010
+
+
+
+
+
+A Caravan book. For more information, visit www.caravanbooks.org
+
+
+
+
+
+Library of Congress Cataloging-in-Publication Data
+
+
+
+
+
+Posner, Richard A.
+
+
+
+How judges think / Richard A. Posner.
+
+
+
+p. cm.
+
+
+
+Includes index.
+
+
+
+ISBN 978-0-674-02820-3 (cloth : alk. paper)
+
+
+
+ISBN 978-0-674-04806-5 (pbk.)
+
+
+
+1. Judicial process. 2. Judicial process—United States. I. Title.
+
+
+
+
+
+K2300.P67 2008
+
+
+
+347′.012—dc22 2007037826
+
+
+
+
+
+Contents
+
+
+
+
+
+Introduction
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+
+
+
+
+PART ONE THE BASIC MODEL
+
+1 Nine Theories of Judicial Behavior
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+
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+
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+2 The Judge as Labor-Market Participant
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+
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+
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+3 The Judge as Occasional Legislator
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+
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+
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+4 The Mind of the Legislating Judge
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+
+
+
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+PART TWO THE MODEL ELABORATED
+
+5 The Judicial Environment: External Constraints on Judging
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+
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+
+
+6 Altering the Environment: Tenure and Salary Issues
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+
+
+
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+7 Judicial Method: Internal Constraints on Judging
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+
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+
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+8 Judges Are Not Law Professors
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+
+
+
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+9 Is Pragmatic Adjudication Inescapable?
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+
+
+
+
+PART THREE JUSTICES
+
+10 The Supreme Court Is a Political Court
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+
+
+
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+11 Comprehensive Constitutional Theories
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+
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+12 Judicial Cosmopolitanism
+
+
+
+
+
+Conclusion
+
+
+
+
+
+Acknowledgments
+
+
+
+
+
+Index
+
+
+
+
+
+Introduction
+
+
+
+
+
+In my youthful, scornful way, I recognized four kinds of judgments; first the cogitative, of and by reflection and logomancy; second, aleatory, of and by the dice; third, intuitive, of and by feeling or “hunching”; and fourth, asinine, of and by an ass; and in that same youthful, scornful way I regarded the last three as only variants of each other, the results of processes all alien to good judges.1
+
+
+
+
+
+Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a “government of laws not men,” the “rule of law” as celebrated in the loftiest Law Day rhetoric, and so forth) does not exist everything is permitted to judges—so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk and grayed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book. These concerns have been made especially timely by the startling (to the naïve) right turn by the Supreme Court in its latest term (ending in June 2007).2 The turn resulted from the replacement of a moderately conservative Justice (O’Connor) by an extremely conservative one (Alito), and so underscores the question of the personal and political elements in judging and thus of the sense in which the nation is ruled by judges rather than by law. If changing judges changes law, it is not even clear what law is.
+
+I feel a certain awkwardness in talking about judges, especially appellate judges (my main concern), because I am one. Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology. At the same time, I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges3—and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession—including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices.4 There is also the sense that judging really is a different profession from practicing or teaching law, and if you’re not in it you can’t understand it. I remember when I was appointed receiving a note from a court of appeals judge in another circuit with whom I was acquainted, welcoming me to “the club.” This book parts the curtains a bit.
+
+The difficulty outsiders have in understanding judicial behavior is due partly to the fact that judges deliberate in secret, though it would be more accurate to say that the fact that they do not deliberate (by which I mean deliberate collectively) very much is the real secret.5 Judicial deliberation is overrated. English judges traditionally did not deliberate at all, as that would have violated the ruling principle of “orality,” whereby everything that judges did had to be done in public so that their behavior could be monitored;6 hence those seriatim opinions that baffle the American law student and perhaps the English one as well. In almost all cases a brief discussion among the judges before deciding enables convergence on a single majority opinion in lieu of a separate opinion by each judge.
+
+The confidentiality of the judicial process would not matter greatly to an understanding and evaluation of the legal system if the consequences of judicial behavior could be readily determined. If you can determine the ripeness of a cantaloupe by squeezing or smelling it, you don’t have to worry about the produce clerk’s mental processes. But the consequences of judicial behavior are often more difficult to determine and evaluate than the consequences even of other professional services, such as medicine. Many of the decisions that constitute the output of a court system cannot be shown to be either “good” or “bad,” whether in terms of consequences or of other criteria, so it is natural to ask whether there are grounds for confidence in the design of the institution and in the competence and integrity of the judges who operate it.
+
+The secrecy of judicial deliberations is an example of professional mystification. Professions such as law and medicine provide essential services that are difficult for outsiders to understand and evaluate. Professionals like it that way because it helps them maintain a privileged status. But they know they have to overcome the laity’s mistrust, and they do this in part by developing a mystique that exaggerates not only the professional’s skills but also his disinterest.7 Judges have been doing this for thousands of years and have become quite good at it—so good as to have achieved a certain opacity even to their fellow legal professionals, including law professors as well as practicing lawyers. Judges have convinced many people—including themselves—that they use esoteric materials and techniques to build selflessly an edifice of doctrines unmarred by willfulness, politics, or ignorance.
+
+There is nevertheless considerable dissatisfaction with our legal system,8 as there is with our system of health care. Like health care, law is said to be too expensive (it certainly costs more per capita than the legal systems of the nations with which we tend to compare the United States), too intrusive into private and commercial life, too prone to error, too uncertain, and simply too large (the nation has a million lawyers). For these reasons it is contended to be a source of immense indirect costs on top of the expenses to the litigants. The accusations may be true, though assessing their truth is not the project of this book and is especially daunting because it is even harder to estimate the benefits of our legal system than its costs. Legal rights are options that may have value even if never exercised, but how to value such options? And legal duties deter harmful conduct—but how effectively is extremely difficult to determine too.
+
+Supposing the criticisms have merit, the question is whom to blame. If all that judges do is apply rules made by legislatures or the framers of the Constitution (or follow precedents, made by current or former judges, that are promptly changed if they prove maladapted to current conditions), then the responsibility for the mess (if it is a mess) must lie with the legislators or the Constitution’s framers, or with the political process more generally. But suppose that most rules laid down by legislative bodies are all right and the problem is willful judges—judges who make up their own rules, or perhaps ignore rules altogether, instead dispensing shortsighted justice on the basis of the “equities” of each case, and as a result create enormous legal uncertainty. The policy implications and hence the path of reform would depend on which explanation was correct (both might be). And what if the basic problem is that the structure of American government, and the American political culture more broadly, compel judges to make rather than just apply rules of law? What looks to the critics of the judiciary like willfulness might actually be the good-faith performance of a vital judicial role, and if judges refused to play it, insisting instead, as some legal thinkers urge (the “legalists,” of whom more shortly), on limiting themselves to passively applying rules made elsewhere, the legal system might be worse than it is.
+
+The answers are bound up with issues of judicial behavior. To illustrate, everyone will agree that contracts are vital to the operation of markets, and almost everyone will agree that the legal enforcement of contracts is important to the efficacy of contracts. Contract law is administered by judges. (Sometimes they are private judges—arbitrators—but the effectiveness of arbitration depends on the enforceability of arbitrators’ awards.) Being a part of the common law, it is also created by them. The law they create and the way in which they enforce it are deliberate acts, just as business decisions and decisions by legislatures are deliberate acts. Whether judicially made doctrines and decisions are good or bad may depend therefore on the judges’ incentives, which may in turn depend on the judges’ cognition and psychology, on how persons are selected (including self-selected) to be judges, and on the terms and conditions of judicial employment. Similarly, American antitrust law is far more the creation of judicial decisions than of antitrust legislation: the most important antitrust laws are as skimpy and vague as most provisions of the Bill of Rights. We ought therefore to be interested in how antitrust law has been shaped by the motivations, constraints, and other influences that play on judges. The Supreme Court has actually called the Sherman Act “a common-law statute,”9 and common law is of course made by judges, not legislators.
+
+The judicial mentality would be of little interest if judges did nothing more than apply clear rules of law created by legislators, administrative agencies, the framers of constitutions, and other extrajudicial sources (including commercial custom) to facts that judges and juries determined without bias or preconceptions. Then judges would be well on the road to being superseded by digitized artificial intelligence programs.10 But even legal thinkers who believe passionately that judges should be rule appliers and unbiased fact finders and nothing more do not believe that that’s how all or even most American judges behave all the time. Our judges have and exercise discretion. Especially if they are appellate judges, even intermediate ones, they are “occasional legislators.” To understand their legislative activity, one must understand their motivations, capacities, mode of selection, professional norms, and psychology.
+
+Achieving a sound understanding of judicial behavior is thus of more than merely academic interest; it is a key to legal reform. Yet its academic interest is also considerable because of the unusual incentives and constraints, so unlike those in most jobs, that shape judicial behavior, especially in the U.S. federal system, and because the analysis of that behavior may offer insights into the general subject of managing uncertainty.11 Uncertainty is as salient a feature of our legal system as expense is of our medical system, and decision making under uncertainty is a deservedly important topic in economics, organization theory, and other fields.
+
+Like other writing by judges about judging, this book is heavily influenced by my own judicial experience, consisting of more than a quarter century as a federal court of appeals judge (seven years as chief judge of my court), with occasional forays into the district court to preside at trials, mainly civil jury trials. But the mode of the book is scholarly rather than confessional. In this respect it resembles my book on the regulation of sexuality, a subject otherwise remote from the study of judicial behavior. That book was motivated by my “belated discovery that judges know next to nothing about sex beyond their own personal experience, which is limited,” and one of my aims was to “bring to the attention of the legal profession the rich multidisciplinary literature” on the subject.12 Judges, like other “refined” people in our society, are reticent about talking about sex, but judges are also reticent about talking about judging, especially talking frankly about it, whether to their colleagues or to a larger professional audience. This reticence makes the scholarly study of judicial behavior at once challenging and indispensable.
+
+The book emphasizes positive rather than normative analysis—what judges do, not what they should do—but I do discuss normative issues and propose a few modest reforms, as well as making occasional suggestions for further research. Positive and normative analysis cannot easily be separated when one is dealing with people’s deliberate actions, for unless they are evil or cynical people, the best explanation for their actions is unlikely to be that they are deliberately flouting the norms of their society. If it is deeply wrong for a judge to base a decision on the flip of a coin, an aleatory theory of judicial behavior is unlikely to be sound. The grounds of a judge’s decisions may be wrong, but they are unlikely to be outside the ballpark of norms and values prevailing in the society.
+
+The book’s primary focus is on federal appellate judges, including Supreme Court Justices (the subject of Part Three, though discussed in the other parts as well). But there is some discussion of trial judges, state court judges, judges in foreign nations similar to the United States,13 and arbitrators (private judges).
+
+I begin with a discussion of the existing theories (attitudinal, strategic, organizational, economic, psychological, sociological, pragmatic, phenomenological, and legalist) of judicial behavior and of the evidence for and against each. These theories are expounded in a rich literature ignored by most academic lawyers (though this is changing14) and by virtually all judges.15 The theories provide background and support to my own analysis, which draws heavily on labor economics and on the psychology of cognition and emotion. It is the stress I lay on psychology that has led me to entitle the book How Judges Think rather than Judicial Behavior.
+
+My analysis and the studies on which it builds find that judges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work. American judges, at least, are not formalists, or (the term I prefer, as it carries less baggage) legalists. Legalists decide cases by applying preexisting rules or, in some versions of legalism, by employing allegedly distinctive modes of legal reasoning, such as “legal reasoning by analogy.” They do not legislate, do not exercise discretion other than in ministerial matters (such as scheduling), have no truck with policy, and do not look outside conventional legal texts—mainly statutes, constitutional provisions, and precedents (authoritative judicial decisions)—for guidance in deciding new cases. For legalists, the law is an autonomous domain of knowledge and technique.16 Some legalists are even suspicious of precedent as a source of law, because it is infected by judicial creativity.
+
+But if judges are not legalists, what are they? Might they simply be politicians in robes? Empirical scholars have found that many judicial decisions, by no means limited to the Supreme Court, are strongly influenced by a judge’s political preferences or by other extralegal factors, such as the judge’s personal characteristics and personal and professional experiences, which may shape his political preferences or operate directly on his response to a case. No responsible student of the judicial system supposes that “politics” (in a sense to be explained) or personal idiosyncrasy drives most decisions, except in the Supreme Court, which indeed is largely a political court when it is deciding constitutional cases. Legalism drives most judicial decisions, though generally they are the less important ones for the development of legal doctrine or the impact on society.
+
+But one must be careful about dividing judicial decisions (or judges) into legalist and political, or, what is closely related, asserting a Manichaean dualism between law and politics. The dualism works only when “law” is equated to legalism, and that is too narrow. Justice Scalia was not stepping out of his proper role as a judge when he said in Richardson v. Marsh that “the rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.”17 This is just as proper a judicial statement as the legalist assertions for which Scalia (he of such pronouncements as that the “rule of law” is the “law of rules”18) is more famous. This is so even though the statement has political implications. Criminal defendants are at a disadvantage if a judge’s or prosecutor’s missteps can be forgiven by the judge’s telling the jury to disregard them, for the bell cannot be unrung; the jurors cannot exclude what they should not have heard from their consideration of the defendant’s guilt.
+
+“Law” in a judicial setting is simply the material, in the broadest sense, out of which judges fashion their decisions. Because the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide, judges perforce have occasional—indeed rather frequent—recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies. As a result, law is shot through with politics and with much else besides that does not fit a legalist model of decision making.
+
+The decision-making freedom that judges have is an involuntary freedom. It is the consequence of legalism’s inability in many cases to decide the outcome (or decide it tolerably, a distinction I shall elaborate), and the related difficulty, often impossibility, of verifying the correctness of the outcome, whether by its consequences or its logic. That inability, and that difficulty or impossibility, create an open area in which judges have decisional discretion—a blank slate on which to inscribe their decisions—rather than being compelled to a particular decision by “the law.” How they fill in the open area is the fundamental question that this book addresses, though lurking in the background and occasionally coming to the fore is the question how they should fill it in.
+
+Although judges often exercise a political judgment in the open area, “political” is an equivocal term that must be carefully parsed before it can be usefully applied to judicial behavior. It could refer to a judge whose decisions reflect his loyalty to a political party. It could refer to a judge whose decisions faithfully mirror the platform of a political party, though as a matter of conviction rather than of party loyalty. It could refer to a judge whose decisions reflect a consistent political ideology, which might be “liberal” or “conservative” and thus correlated (though imperfectly) with the Democratic or Republican Party platform, but which might instead be an ideology embraced by neither major party, such as libertarianism or socialism. The empirical literature that refutes legalism as a complete or even approximate description of actual judicial behavior does not distinguish among these different gradations of “political.” “Political” could even describe decisions based on purely technical policy judgments, judgments that involve finding the best means to agreed-upon ends; any issue of governmental policy is in that sense “political.” At the opposite extreme, a judge might be “political” in a sense divorced from policy: he might, like a legislator, use charm, guile, vote trading, and flattery to induce other judges to go along with him, though his aim might be to produce legalistic decisions. (He might thus be what is called in a variety of nonpolitical settings “a good politician.”) The strategic theory of judicial behavior, discussed in chapter 1, emphasizes political judging in this “means” rather than “ends” sense. Many legislators have no policy preferences of their own, but are merely political brokers for their constituents. Judges, however, unless elected, do not have constituents.
+
+Ringing changes on the “political” might seem to exhaust the possible nonlegalist factors in adjudication. It does not begin to. The possible other factors (call them “personal”) include personality traits, or temperament (and thus emotionality at one end of the temperament spectrum and emotional detachment at the other end), which are more or less innate personal characteristics. They include personal background characteristics, such as race and sex, and also personal and professional experience. The political or ideological factors that influence adjudication may themselves be by-products of personal factors rather than products of an informed, disinterested, and coolly analytical study of public issues. Also figuring in judicial decisions are strategic considerations, already alluded to, which need not be related to either the political views or the personal characteristics of a judge. A judge might join the majority opinion in a case not because he agreed with it but because he thought that dissenting publicly would magnify the effect of the majority opinion by drawing attention to it. (“Dissent aversion” helps to explain, as we shall see in chapter 1, the puzzling effect of panel composition on appellate decisions.) Institutional factors—such as how clear or unclear the law is, salary and workload, and the structure of judicial promotion—also influence judicial behavior.
+
+The political and personal factors create preconceptions, often unconscious, that a judge brings to a case. This can explain how judges can think their decisions uninflected by political considerations but neutral observers find otherwise. This explanation saves judges from the accusation of pervasive hypocrisy without denying the force of the empirical literature on political judging.
+
+Judicial preconceptions are best understood, we shall see, with the aid of Bayesian decision theory. Not that this is how judges themselves would describe their thought processes. And “Bayes’s theorem” is not the only term I shall be using that is likely to alarm some readers of a book about judges. Nor are “occasional legislators” and “dissent aversion” the only others. Readers will have to brace themselves for “reversal aversion,” “ideology drift,” “tolerable windows,” “utility function,” “Sartrean bad faith,” “option value,” “risk aversion,” “zone of reasonableness,” “monopsony,” “cosmopolitanism,” “authoritarian personality,” “alienation,” “agency costs,” “rule pragmatist,” and “constrained pragmatist.” I do not apologize for these terms or, more generally, for discussing judicial thinking in a vocabulary alien to most judges and lawyers. Judicial behavior cannot be understood in the vocabulary that judges themselves use, sometimes mischievously.
+
+Because behavior is motivated by desire, we must consider what judges want. I think they want the same basic goods that other people want, such as income, power, reputation, respect, self-respect, and leisure. If the typical judicial weighting of the various goods is distinctive, it is because of the incentives and constraints that the office of judge creates, or more broadly the context of judicial action. An important part of that context is legal uncertainty, which creates the open area in which the orthodox (the legalist) methods of analysis yield unsatisfactory and sometimes no conclusions, thereby allowing or even dictating that emotion, personality, policy intuitions, ideology, politics, background, and experience will determine a judge’s decision.
+
+Among the institutional factors that influence judicial behavior in the open area is the structure of the judicial career, which affects selection and self-selection into the judiciary and the incentives and constraints that click in once a person is inducted into that career. I compare different types of judicial career and different types of judiciary and also examine proposals for modifying the career structure, such as by raising judicial salaries steeply or limiting the length of judicial terms in office. My analysis of the career structure of federal appellate judges (including Supreme Court Justices) confirms the absence of significant external constraints on their judicial behavior (such as salary, promotion, or removal) and thus the scope of the judges’ freedom from efforts by their “principals” (whoever exactly they are—a matter of some uncertainty) to control these their agents.
+
+But I must not ignore the possibility that this freedom is tightly restricted by a range of internal constraints, including what I call “judicial method.” This consists of analytical tools for managing uncertainty and producing what legalists regard as objective decisions. We shall see that the legalist tools—including those most hallowed ones of reasoning by analogy and strictly interpreting statutes and constitutions—come up short: the first is empty and the second has, despite appearances, a large discretionary element.
+
+I must also not ignore academic criticism of judges as a potential constraint on judicial behavior, since the absence of strong constraints opens a space for the normally weak ones to exert significant influence. But academic criticisms of judges tend to fall on deaf ears these days because of changes in the legal academy that have driven judges and law professors so far apart intellectually that the faculties of the elite law schools are becoming alienated from the judiciary. My complaint is not, as one might think, that academics are too critical of judges; in many respects they are insufficiently critical. My complaint is that the current academic critique of the judiciary is unrealistic about judges, unhelpful to them, and indeed rather uninterested in them unless they happen to be Supreme Court Justices.
+
+The emphasis that I place on the American judge’s extensive (though not complete) freedom from internal and external constraints is not intended to suggest that judicial behavior is random, willful, or political in a partisan sense. Most judges, like most serious artists, are trying to do a “good job,” with what is “good” being defined by the standards for the “art” in question. The judicial art prominently includes the legalist factors, and so those factors figure prominently in judicial decisions—and rightly so. But innovative judges challenge the accepted standards of their art, just as innovative artists challenge the accepted standards of their arts. As there are no fixed, incontestable criteria of artistic excellence, so there are no fixed, incontestable criteria of judicial excellence. And in law as in art, the innovators have the greater influence on the evolution of their field.
+
+So what exactly are judges doing when they are judging in the open area? If they are not merely applying preexisting rules in a logical or otherwise mechanical fashion, might they not be implementing a consistent judicial philosophy? But no; we shall see that judicial philosophies (such as “formalism,” “originalism,” “textualism,” “representation reinforcement,” “civic republicanism,” or, the newest contenders, “active liberty” and “judicial cosmopolitanism”) are either rationalizations of decisions based on other grounds or rhetorical weapons. None is a politically neutral lodestar guiding judges’ decisions.
+
+What term, then, best describes what most American judges do? Readers of my previous writings on judicial behavior will expect me to say that it is “legal pragmatism,” to divide judges into legalists and pragmatists, and then, by classifying legalism as a pragmatic strategy, to turn all our judges into pragmatists. That would be too facile. But pragmatism is an important component of American judicial behavior and figures importantly in this book. It is widely misunderstood to be an “anything goes” approach to judging, like extreme versions of legal realism. It is not. The pragmatic judge is a constrained pragmatist. He is boxed in, as other judges are, by norms that require of judges impartiality, awareness of the importance of the law’s being predictable enough to guide the behavior of those subject to it (including judges!), and a due regard for the integrity of the written word in contracts and statutes. The box is not so small that it precludes his being a political judge, at least in a nonpartisan sense. But he need not be one unless “political” is given the broadest of its possible meanings that I reviewed earlier, in which the “political” is anything that has the slightest whiff of concern for policy. A pragmatic judge assesses the consequences of judicial decisions for their bearing on sound public policy as he conceives it. But it need not be policy chosen by him on political grounds as normally understood.
+
+A judge can be political without being pragmatic; an ideologue is not a pragmatist. Most judges who oppose abortion rights do so because of religious belief rather than because of a pragmatic assessment of such rights. (Many who support such rights are ideologically driven as well.) They may offer pragmatic objections to abortion in an effort to enlist the support of judges who are not religious or whose religious beliefs do not include a rejection of abortion. But that is window dressing. A pro-lifer, judicial or otherwise, to whom you point out that one of the benefits of abortion rights is that they reduce future crime rates, because unwanted children are more likely to grow up to be criminals than wanted ones,19 will look at you with horror rather than commend you for having made an interesting pragmatic point that he will add to the balance of good and bad consequences of abortion rights to help guide his decision.
+
+The issue of what influences play on judicial behavior is most acutely raised with respect to the U.S. Supreme Court. The Justices operate with even fewer constraints than the lesser federal judges, except for the political constraint imposed by public opinion. That constraint is greater for the Justices because their decisions have more visibility and a greater impact on society (that is the main reason for the greater visibility). So it is in the Supreme Court, especially when it is deciding constitutional cases, that we expect, and find, the most strenuous and least successful efforts to demonstrate that judges are, or can be, legalists. For that is where the stakes usually are highest, not only because of the nature of the issues that constitutional law deals with but also because of the difficulty of changing constitutional law other than by the Court’s overruling previous decisions. It is also where the decisional guidance provided by the orthodox legal materials is weakest. So it is there that we find innumerable competing proposals of comprehensive theories to limit judicial discretion, several of which I examine in Part Three. The most desperate of them is the quest for global judicial consensus, a kind of secular natural law. Judicial cosmopolitanism (not to be confused with the influential philosophical doctrine of cosmopolitanism) is manifested in the Supreme Court’s increasing propensity to cite foreign judicial decisions as authorities in American constitutional cases. In doing this the Court overlooks profound differences in judicial structures and outlook between the United States and foreign countries.
+
+Were the entire argument of the book that American judges (in contrast to most foreign judges) have a great deal of discretion—that they do not just apply rules made by the legislative and executive branches of government, by earlier generations of judges, or by judges of higher courts—many readers would respond, “So what else is new?” But most of the book is about what judges do when they are not just applying rules. It is an effort to develop a positive decision-theoretic account of judicial behavior in what I am calling the open area—the area in which a judge is a legislator. I argue that the reasons for the legislative character of much American judging lie so deep in our political and legal systems and our culture that no feasible reforms could alter it, and furthermore that the character of our legal system is not such a terrible thing. The falsest of false dawns is the belief that our system can be placed on the path to reform by a judicial commitment to legalism—to conceiving the judicial role as exhausted in applying rules laid down by statutes and constitutions or in using analytic methods that enable judges to confine their attention to orthodox legal materials and have no truck with policy.
+
+I hope that these arguments persuade, or at least that the book contributes to a more exact and comprehensive understanding of how judges behave, why they behave as they do, what the likely consequences of such behavior are, and what intellectual tools are best suited to analyzing such questions.
+
+
+1. Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell Law Quarterly 274, 275–276 (1929).
+
+2. Linda Greenhouse, “In Steps Big and Small, Supreme Court Moved Right: A 5–4 Dynamic, with Kennedy as Linchpin,” New York Times, July 1, 2007, § 1, p. 1.
+
+3. A notable example is Harvard law professor Henry Hart’s time-and-motion study of Supreme Court Justices: Henry M. Hart, Jr., “The Supreme Court, 1958 Term: Foreword: The Time Chart of the Justices,” 73 Harvard Law Review 84 (1959), which I discuss in chapter 10.
+
+4. Robert Keeton, a federal district judge and before that a Harvard Law School professor, acknowledged in his treatise on judging that judges make “value-laden” rulings. Robert E. Keeton, Keeton on Judging in the American Legal System 15 (1999). But he did not explore the sources of those values. His treatise has no index entry for either “politics” or “ideology.”
+
+5. Though a pretty open one. “When I first came on the court [the U.S. Court of Appeals for the District of Columbia Circuit], I imagined that conferences [on cases] would be reflective, refining, analytical, dynamic. Ordinarily they are none of these. We go around the table and each judge, from junior to senior, states his or her bottom line and maybe a brief explanation. Even if the panel is divided, the discussion is exceedingly crisp. The conference changes few minds. Assignments are made, life goes on.” Patricia M. Wald, “Some Real-Life Observations about Judging,” 26 Indiana Law Review 173, 177 (1992). Chief Justice Rehnquist described Supreme Court conferences similarly. See chapter 10.
+
+6. Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis 101–103 (1990).
+
+7. Richard A. Posner, The Problematics of Moral and Legal Theory, ch. 3 (1999).
+
+8. See, for example, Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001); Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (1991).
+
+9. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2720 (2007).
+
+10. I do not know why originalists and other legalists are not AI enthusiasts.
+
+11. About which I have written at length in relation to catastrophic risk and also to the reform of the U.S. intelligence system. See my books Catastrophe: Risk and Response (2004); Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005); Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (2006); Countering Terrorism: Blurred Focus, Halting Steps (2007).
+
+12. Richard A. Posner, Sex and Reason 1, 4 (1992).
+
+13. That is, nations that have an independent judiciary, as many do not. See, for example, Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (2005); Law and Economic Development (Hans-Bernd Schäfer and Angara V. Raja eds. 2006).
+
+14. See, for example, Gregory C. Sisk and Michael Heise, “Judges and Ideology: Public and Academic Debates about Statistical Measures,” 99 Northwestern University Law Review 743 (2005).
+
+15. The richness is well illustrated by James L. Gibson, “From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior,” 5 Political Behavior 7 (1983). As the date of his article shows, the literature has been around for many years. That it has not caught on with the legal professoriat may be in part because of its death of implications for the understanding or reform of legal doctrine and in part because it challenges the mystique of an apolitical judiciary, in which lawyers and law professors are heavily invested.
+
+16. “Legal formalists emphasize the specifically legal virtues of the clarity, determinacy, and coherence of law, and try to sharpen the distinction between legislation and adjudication. Roughly, they can be divided into rule-formalists and concept-formalists. The former place more value on determinacy, emphasizing the importance of clear rules and strict interpretation, while the latter emphasize the importance of system and principled coherence throughout the law.” Thomas C. Grey, “Judicial Review and Legal Pragmatism,” 38 Wake Forest Law Review 473, 478 (2003). Modern American formalists—comprising what one might call the School of Scalia—are mainly rule-formalists. Id. at 479. “The most important thing [for Scalia] is that law should be put in the form of rules wherever possible.” Id. at 499.
+
+17. 481 U.S. 200, 211 (1987).
+
+18. Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review 1175 (1989).
+
+19. John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” 116 Quarterly Journal of Economics 379 (2001).
+
+
+
+
+
+I
+
+
+
+
+
+The Basic Model
+
+
+
+
+
+1
+
+
+
+
+
+Nine Theories of Judicial Behavior
+
+
+
+
+
+There are many positive (that is, descriptive as distinct from normative) theories of judicial behavior.1 Their primary focus is, as one would expect, on explaining judges’ decisions. The theories are the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological, and, of course, what I am calling the legalist theory. All the theories have merit and feed into the theory of decision making that I develop in this book. But all are overstated or incomplete. And missing from the welter of theories—the gap this book endeavors to fill, though in part simply by restating and refining the existing theories—is a cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases: in short, a positive decision theory of judging.
+
+I begin with the attitudinal theory,2 which claims that judges’ decisions are best explained by the political preferences that they bring to their cases. Most of the studies that try to test the theory infer judges’ political preferences from the political party of the President who appointed them, while recognizing that it is a crude proxy. The emphasis is on federal judges, in particular Supreme Court Justices. State judges are of course not appointed by the President, and sometimes the method of their appointment—for example, by nonpartisan election—makes it difficult to classify them politically.3
+
+Justices and judges appointed by Democratic Presidents are predicted to vote disproportionately for “liberal” outcomes, such as outcomes favoring employees, consumers, small businessmen, criminal defendants (other than white-collar defendants), labor unions, and environmental, tort, civil rights, and civil liberties plaintiffs. Judges and Justices appointed by Republican Presidents are predicted to vote disproportionately for the opposite outcomes.
+
+Other evidence of a judge’s political leanings is sometimes used in lieu of the party of the appointing President, such as preconfirmation editorials discussing the politics or ideology of a judicial nominee.4 A neglected possibility is a fourfold classification in which the intermediate categories would consist of judges appointed when the President and the Senate majority were of different parties (“divided government”). However, Nancy Scherer finds no difference in the decisions of federal district judges appointed by “divided” versus “united” government,5 and I find only a small difference (as shown in Table 16) in the case of federal court of appeals judges appointed by Republican Presidents. But when the President is a Democrat, it makes a significant difference whether the Senate is Democratic or Republican, probably because the Republican Party is more disciplined than the Democratic Party and therefore better able to organize opposition to a nominee.
+
+Table 1 Judicial Votes in Courts of Appeals as Function of United versus Divided Presidency and Senate, 1925–2002 (in percent)
+
+
+
+Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/appctdata.htm, www.wmich.edu/-nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.
+
+Table 2 Judicial Votes in Courts of Appeals as Function of United versus Divided Presidency and Senate, Judges Serving Currently (in percent)
+
+
+
+Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/appctdata.htm, www.wmich.edu/-nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.
+
+Table 2 is similar to Table 1 except limited to currently servingjudges. Notice that the effects of divided government on judicial voting are more pronounced than in Table 1, consistent with the strong Republican push beginning with Reagan to tilt the ideological balance of the courts rightward. Notice also that federal judicial decisions as a whole tilt toward the conservative end of the spectrum and that the tilt is more pronounced among currently serving judges.
+
+Table 3 Ideology of Currently Serving Justices and the Appointing President
+
+
+
+Table 4 Conservative and Liberal Supreme Court Justices as Function of United versus Divided Presidency and Senate, Justices Serving Currently
+
+
+
+Presidents differ in their ideological intensity, and taking account of that difference can improve the accuracy of the attitudinal model. Seven of the nine current Supreme Court Justices were appointed by Republican Presidents, but it is more illuminating to note that four conservative Justices were appointed by conservative Republicans (Scalia and Kennedy by Reagan, and Roberts and Alito by the second Bush), two liberal Justices by a Democratic President (Ginsburg and Breyer, appointed by Clinton), and one liberal and two conservative Justices appointed by moderate Republicans (Stevens by Ford, Souter and Thomas by the first Bush). See Table 3.
+
+There is also a divided-government effect in Supreme Court appointments, as shown in Table 4.
+
+Whatever the method of determining a judge’s political inclinations, and whatever the level of the judiciary (Supreme Court, federal courts of appeals—on which there is now an extensive literature7—or federal district courts8), the assumed inclinations are invariably found to explain much of the variance in judges’ votes on politically charged issues. The hotter the issue (such as abortion, which nowadays is much hotter than, say, criminal sentencing), the greater the explanatory power of the political variable. The attitudinal theory is further supported by the unquestionable importance of politics in the appointment and confirmation of federal judges;9 by the intensity of congressional battles, almost always politically polarized, over the confirmation of federal judges and particularly Supreme Court Justices; and by the experiences of lawyers and judges. Every lawyer knows that the accident of which judges of a court of appeals are randomly drawn to constitute the panel that will hear his case may determine the outcome if the case is controversial. Every judge is aware of having liberal and conservative colleagues whose reactions to politically charged cases can be predicted with a fair degree of accuracy even if the judge who affixes these labels to his colleagues would not like to be labeled politically himself.
+
+Further evidence is the tendency of both Supreme Court Justices and court of appeals judges to time their retirement in such a way as to maximize the likelihood that a successor will be appointed by a President of the same party as the one who appointed the retiring Justice.10 Still another bit of evidence is what might be called “ideology drift”—the tendency of judges to depart from the political stance (liberal or conservative) of the party of the President who appointed them the longer they serve.11 A judge closely aligned with the ideology of the party of the President who appointed him may fall out of that alignment as new, unforeseen issues arise. A judge who was conservative when the burning issues of the day were economic may turn out to be liberal when the burning issues become ones of national security or social policy such as abortion or homosexual rights.
+
+There is more: the outcome of Supreme Court cases can be predicted more accurately by means of a handful of variables, none of which involves legal doctrine, than by a team of constitutional law experts.12 While there is a high correlation between how a given federal appellate judge (court of appeals judge as well as Supreme Court Justice) votes for the government in nonunanimous (hence “close”) constitutional criminal cases and in nonunanimous statutory criminal cases, there is a low correlation between the votes of different judges for and against the government in criminal cases.13 Some judges have a progovernment leaning, others a prodefendant leaning, and these leanings appear to be what drives their votes in close cases whether the case arises under the Constitution or under a statute—though from a legalist standpoint the text of the enactment being applied ought to drive the outcome, and there are huge textual differences between the Constitution and statutes. Apolitical judges would not be expected to vote the same way in both types of case.
+
+All this is not to say that all judicial votes are best explained as politically motivated,14 let alone that people become judges in order to nudge policy closer to their political goals. We shall see in subsequent chapters that to explain the political cast of judicial decisions does not require assuming that judges have conscious political goals. No attitudinal study so finds, and data limitations cannot explain the shortfalls. Even at the level of the U.S. Supreme Court many cases do not involve significant political stakes, but that cannot be the entire explanation either. Think of Oliver Wendell Holmes. The publication of his correspondence after his death revealed that he was a rock-ribbed Republican, yet he voted repeatedly to uphold liberal social legislation (such as the maximum-hours law at issue in the Lochner case, in which he famously dissented) that he considered socialist nonsense. He may of course have been an exception among Supreme Court Justices in this as in so many other respects. He may have few successors in point of political detachment in today’s more politicized legal culture.
+
+We get a sense of the attitudinal model’s predictive limitations in Tables 5 and 6, in which judicial votes that lack any political valence are coded as “other,” and the liberal, conservative, mixed, and other votes are correlated with the party of the President who appointed the judge who cast the vote. Notice that apart from the substantial percentage of votes that were either mixed or other, a large percentage of conservative votes were cast by putatively liberal judges (judges appointed by Democratic Presidents) and a large percentage of liberal votes were cast by putatively conservative judges. Notice, as in the earlier tables, the apparent trend toward the increased politicization of court of appeals voting resulting from judicial appointments by Republican Presidents. But notice, too, that the differences between the two types of judge, exhibited in the first two rows of the tables, though significant, are only partial. And a comparison just of means obscures the fact that the distributions overlap; some judges appointed by Republican Presidents are less conservative than some appointed by Democratic Presidents. This does not refute the attitudinal model, but it does highlight the fact that the party of the appointing President is an imperfect proxy for a judge’s judicial ideology. One reason is that ideological issues important to judges need not have salience in political campaigns; capital punishment is a current example. Another reason is that judges pride themselves on being politically independent rather than party animals.
+
+Table 5 Judicial Votes in Courts of Appeals as Function of Party of Appointing President, 1925–2002 (in percent)
+
+
+
+Vote
+
+
+
+Republican President
+
+
+
+Democratic President
+
+
+
+
+
+Conservative
+
+
+
+42.2
+
+
+
+37.6
+
+
+
+
+
+Liberal
+
+
+
+28.1
+
+
+
+33.3
+
+
+
+
+
+Mixed
+
+
+
+5.9
+
+
+
+5.1
+
+
+
+
+
+Other
+
+
+
+23.9
+
+
+
+23.9
+
+
+
+
+
+Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/appctdata.htm, www.wmich.edu/-nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.
+
+Table 6 Judicial Votes in Courts of Appeals as Function of Party of Appointing President, Judges Serving Currently (in percent)
+
+
+
+Vote
+
+
+
+Republican President
+
+
+
+Democratic President
+
+
+
+
+
+Conservative
+
+
+
+51.2
+
+
+
+42.5
+
+
+
+
+
+Liberal
+
+
+
+22.9
+
+
+
+33.1
+
+
+
+
+
+Mixed
+
+
+
+7.3
+
+
+
+7.6
+
+
+
+
+
+Other
+
+
+
+18.7
+
+
+
+16.9
+
+
+
+
+
+Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/appctdata.htm, www.wmich.edu/-nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.
+
+An explanation for the attitudinal model’s predictive limitations that would hold even if all decisions involved significant political stakes is that a case may pose a conflict between two political values, both of which are important to a judge, as when, for example, a civil rights suit (liberal) is brought challenging affirmative action (a conservative bête noire). One might think that in such a case the political considerations would cancel and the decision could be attributed to conventional legal reasoning. But no; the political considerations are unlikely to weigh equally in the judge’s mind, and if they do not, the heavier may determine his decision. A notable example is Buchanan v. Warley.15 Decided at a time when the Supreme Court was strongly disinclined to invalidate racially discriminatory laws, it nevertheless invalidated a southern ordinance that forbade blacks to live on any block in which whites were in the majority, and vice versa. The ordinance had blocked the plaintiff, a white, from selling property to a black. The Court distinguished mere “social rights”—the right of blacks to associate with whites (and likewise of whites not to associate with blacks, a “right” that the whites who remained in the neighborhood were denied), which the Court had refused to recognize in Plessy v. Ferguson—from “those fundamental rights in property” that the Fourteenth Amendment was intended to secure to blacks on equal terms with whites.16 The distinction is not found in the equal protection clause. Michael Klarman argues persuasively that the Court simply thought government interference with property rights a worse affront to personal liberty than segregation of schools and other public facilities, especially since the person complaining that his property rights were being infringed was the white seller.17 The upshot was that the Court issued a liberal decision, rejecting racial segregation in private housing.
+
+The attitudinalists’ traditional preoccupation with politically charged cases decided by the Supreme Court creates an exaggerated impression of the permeation of American judging by politics.18 Most cases decided by American courts are neither politically charged nor decided in the Supreme Court. And to use the political party of the appointing President as a proxy for a Justice’s political inclinations misleadingly implies that partisan politics pervades Supreme Court decision making. A President invariably appoints most judges (usually more than 90 percent) from among members of his own political party, but once appointed they are more likely to want to be good judges than to want to toe anyone’s political line. You do not find judges saying, even to themselves, “How would Bill Clinton [or George Bush, etc.], who appointed me, decide this case?” Nevertheless, in the frequent cases in which a political judgment is required to “close the deal” because legalist analysis of the case leads nowhere, the judge is likely to lean toward the position that the political party to which he belongs (or belonged) would support, for it is usually not an accident that he belongs to that party rather than another. But “lean toward” is different from “identify with.” Supreme Court Justices are political, but politically independent. Most of them, indeed, are outside (either more liberal or more conservative) the range bounded by the political preferences of the President and the Senate that confirmed them.19
+
+Any amount of political judging challenges orthodox conceptions of the judicial process, however, and the attitudinalists have shown that there is plenty at all levels of the American judiciary (though more, the higher the level). Yet their findings, while heresy to the legal establishment, have the paradoxical effect of blunting criticisms of the courts as acting undemocratically when they invalidate legislative and executive acts. As explained by Mark Graber,
+
+
+
+Judicial review is established and maintained by elected officials. Adjudication is one of many means politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Judicial review does not serve to thwart or legitimate popular majorities; rather that practice alters the balance of power between the numerous political movements that struggle for power in a pluralist democracy.20
+
+
+
+The judge who orients his judicial philosophy to the ideology of the President who appointed him (or the electorate that elected him) might be thought the democratic judge, who amplifies rather than undermines the people’s choice. Those who regard the Presidency as the most perfect embodiment of the democratic principle should applaud such judges.
+
+The strategic theory of judicial behavior (also called the positive political theory of law), to which I now turn, hypothesizes that judges do not always vote as they would if they did not have to worry about the reactions to their votes of other judges (whether their colleagues or the judges of a higher or a lower court), legislators, and the public.21 Some of the strategic theorists are economists or political scientists who model politics as a struggle among interest groups and use game theory to sharpen the analysis. Others study historic struggles between the judiciary and other branches of government.22 At its core the theory is just common sense: whatever a judge wants to accomplish will depend to a considerable degree on other people in the chain of command, broadly understood. At its periphery, however, the theory becomes fanciful, as when the votes of Supreme Court Justices on issues of statutory interpretation are predicted to depend on whether the same political party controls Congress that controlled it when the statute was passed. The idea is that the Justices will feel freer to depart from the original meaning of the statute if the party that controlled Congress when the statute was passed is no longer in power.23
+
+The strategic theory is compatible with the attitudinal,24 as it is a theory of means and the attitudinal theory one of ends. The judge who wants the decisions of his court to conform to his political preferences will be likely to choose a voting strategy that promotes that goal, although he could care just about expressing his political views and not about their adoption. Brandeis was a judge of the second type, Holmes of the first, with an occasional aberration—such as Buck v. Bell,25 the “three generations of imbeciles are enough” case. Holmes’s mistaken belief in the importance for the nation’s future of the eugenics law that he was voting to uphold is palpable.
+
+But the strategic theory is compatible with any other goal-oriented theory of judicial motivation as well. Even a legalist judge might adopt a voting strategy designed to maximize the likelihood that his views will be adopted, as distinct from a strategy of always voting in conformity with those views, come what may. That is a possible, though highly controversial, interpretation of Bush v. Gore. The five conservative Justices voted for the liberal outcome (the vindication of constitutional voting rights) and the four liberal Justices voted for the conservative outcome. Both camps must have been aware that it would make a difference, should there be a vacancy on the Court, whether the President was a Republican or a Democrat. A more innocent example is a judge who forgoes a public dissent in a case because he fears it would lend prominence to the views of the majority or that if he dissented too often his colleagues would be annoyed and retaliate (perhaps unconsciously) by paying less heed to his views in other cases. Few judges are completely insensible to strategic considerations (though Justice Scalia, our most prominent legalist judge, comes close). In effect they trade off principle against effectiveness.
+
+What I shall call the sociological theory of judicial behavior, because of its focus on small-group dynamics and hence on appellate judging, is an application or extension of the strategic theory, combined with the attitudinal theory. Drawing on both social psychology and rational choice theory, it hypothesizes that panel composition (federal courts of appeals normally sit in three-judge panels, randomly selected from the members of the full court, of which there might be as many as 28, and even more when senior judges are included) influences outcomes. Specifically, a panel having a Republican or Democratic majority is likely to decide differently from one that is all Republican or all Democratic (bearing in mind the special sense in which a judge is usually classified in studies of the political element in judicial behavior as “Republican” or “Democratic”—on the basis of the party of the President who appointed him).26 And similarly a panel in a sex discrimination case in which all the judges are male is likely to decide the case differently than a panel that contains a female judge.27
+
+Several explanations for why panel composition should have this curious effect—why, that is, a majority would ever yield to the wishes of the minority—have been hypothesized. One is that the odd man out acts as a whistleblower, threatening to expose in a dissenting opinion the majority’s position as unprincipled. A less contentious hypothesis is that he may simply bring to the panel’s deliberations insights that the other judges, with their different political orientation, have overlooked. Either way his presence is an antidote to the tendency of collective deliberations of the like-minded to drive them to extreme conclusions, as the literature on group polarization finds.28
+
+But a bigger factor than either of these may be differences among panel members in intensity of preference for a particular outcome,29 coupled with the phenomenon of “dissent aversion.” Suppose that for reasons of or correlated with ideology, or because of personal background or experiences, emotion, or any other factor likely to stir up a disagreement difficult to resolve by reasoned argument, one member of the panel feels strongly that the case should be decided one way, while the other two judges, though inclined to vote the other way, do not feel strongly. One of those two may decide to go along with the third, the dissentient judge (especially if the case is unlikely to have much significance as a precedent), either treating intensity as compelling evidence of a correct belief or to avoid conflict, perhaps in the conscious or unconscious hope of reciprocal consideration in some future case in which he has a strong feeling and the other judges do not. Once one judge swings over to the view of the dissentient judge, the remaining judge is likely to do so as well, for similar reasons or because of dissent aversion.
+
+Most judges do not like to dissent (Supreme Court Justices are an exception, for reasons I explain later in the chapter). Not only is it a bother and frays collegiality,30 and usually has no effect on the law, but it also tends to magnify the significance of the majority opinion. Judges also do not like dissents from their decisions, which is why dissents fray collegiality. Judges do not like to be criticized, to bother having to revise a draft opinion in order to parry any solid punches thrown by the dissent, or, worst of all, to lose the third judge to the dissenter.
+
+Dissent aversion reflects the simultaneous difficulty and importance of collegiality. Appellate judging is a cooperative enterprise. It does not work well when the judges’ relations with one another become tinged with animosity—and that is always a danger because of the way in which the members of the cooperative enterprise are selected. Judges neither choose their colleagues and successors, as members of law firms and academic faculties do, nor are chosen (and retained or replaced) by a stable, uniform management layer above them. With the Presidency alternating between the parties, judges of the same federal court are invariably appointees of antagonistic principals. What is more, because there are no uniform criteria for the selection of judges, the judges of the same court tend to be diverse in background and ability, which is a source of tension as well as of an enriching variety of experiences and insights. Maintaining collegiality under such conditions requires continuous efforts at minimizing sources of irritation—such as dissents.
+
+The panel-composition effect that has received the most attention is the ideological—the liberal moderating the conservative majority, the conservative moderating the liberal majority. Ideological disagreement is unlike a disagreement over the best means to an agreed end because ideological disputants rarely argue from shared premises. A liberal on a panel with two conservatives is unlikely to produce facts or arguments to change the ideology of his colleagues, or vice versa. But if he feels more strongly about how the case should be decided than the other judges do, this implies that he would derive greater benefits than they from a decision of the case his way and in turn that he would be willing to incur greater costs to get his way, as by writing a dissent. His threat to dissent is thus a credible threat to impose costs on his colleagues (the costs arising from their dissent aversion) if they refuse to yield to his preference. If those costs exceed the benefits to his colleagues of deciding the case their preferred way because they do not feel strongly about the outcome, they will give way.
+
+Were there no dissent aversion, the panel-composition effect would probably be slight. It is true that the deliberations of the like-minded can produce group polarization, resulting in a more extreme opinion than the average opinion of the group’s members before they began to deliberate; for whoever in the group holds the extreme opinion will be pushing on an open door when he tries to persuade the others to accept it. This could well happen in a court of like-minded judges. But it would be unlikely to happen when, in a diverse court, some panels happened to be composed of like-minded judges, as they would be from time to time. Remember that judges do not engage in much collective deliberation over a case (in fact less than most juries do). Whether or not a member of the court known to disagree with two judges is on a panel with them, they know that if it is a contentious case other members of the court would vote differently. The presence of one of those other members on the panel would probably therefore not add much information to what the two judges already know about the diversity of views within the full court concerning the issues in the case. Those other judges are likely to be a real presence at the panel’s deliberations, though not as vivid, as influential, a presence as the panel’s members.
+
+Jury holdouts are a parallel phenomenon to the panel-composition effect under dissent aversion. A juror who feels very strongly about what the verdict in the case should be will be willing to incur costs by protracting the jury’s deliberations. By thus imposing costs on the majority as well, he may induce the majority to yield to him, compromise with him, or report to the judge that the jury is hung. The requirement (not always imposed in civil cases any longer) that a jury verdict be unanimous strengthens the holdout’s hand relative to that of the dissentient judge on a three-judge panel. This is important because there are strong pressures to conform to prevailing views in most social settings,31 including that of jury deliberations; the pressures are weaker in the judge setting because of the long and honorable tradition of dissent. But while requiring unanimity strengthens the hand of the holdout juror, the fact that the jury majority can at low cost walk away from the case by declaring the jury hung weakens it. And if the jury does hang, there will be a new trial, in which the party favored by the current holdout is quite likely to lose. The majority of the new jury probably will favor the other party, just as the majority of this jury did, and there is unlikely to be a holdout next time because holdouts are rare.
+
+What I have been calling the sociological theory of judicial behavior, incorporating as it does strategic calculation, emotion (intensity of preference for one outcome or another will often reflect or create an emotional commitment), and group polarization, straddles the economic and the psychological theories of judicial behavior—theories that overlap, though to see this requires a careful definition of “economic” and “psychological.” A narrowly economic theory of human behavior that models it as the product of hyperrational choice and a narrowly psychological theory that models it as the product solely of nonrational drives and cognitive illusions do not overlap, but they also do not do justice to either the economic or the psychological perspective on human behavior. Rationality in economics means elementary consistency and instrumental rationality (fitting means to ends), and so can accommodate a good deal of emotional behavior and cognitive limitedness, while psychology embraces the study of cognition in the large, including the cognition of normal people, the cognitive shortcuts that substitute for formal reasoning, and the social influences at work in group polarization and dissent aversion.
+
+A promising psychological approach focuses on strategies for coping with uncertainty, a fundamental characteristic of the U.S. legal system. This approach highlights the importance and the sources of preconceptions in shaping responses to uncertainty,32 is supported by studies of judges, and plays a starring role in the theory of judicial behavior developed in this book. The radical uncertainty that besets judges in many of the most interesting and important cases makes conventional decision theory largely inapplicable to judicial decision making and necessitates eclectic theorizing.
+
+The economic theory of judicial behavior treats the judge as a rational, self-interested utility maximizer.33 He has a “utility function,” as economists term the complex of objectives that guide rational action. The “arguments” (elements) of the judicial utility function include money income, leisure, power, prestige, reputation, self-respect, the intrinsic pleasure (challenge, stimulation) of the work, and the other satisfactions that people seek in a job. The arguments of the utility function can be manipulated by the employer to alter the behavior of the jobholder, and also to affect who seeks or is willing to take the job. Much of the strategic and even the sociological theory of judging can be subsumed under the economic theory.
+
+Leisure preference in the judicial utility function may help explain the emphasis that judges place on “judicial economy,” and hence their fondness for doctrines such as harmless error, waiver, and forfeiture; the pressure that some judges exert on litigants to settle cases before trial; and excessive delegation of judicial tasks to law clerks and other staff. Income preference is illustrated by evidence that if judicial incomes are made to depend on the volume of litigation, as was once the case in Britain, judges will lean in favor of expansive rights for plaintiffs—but not too expansive, as that might cause litigation to dry up by motivating potential defendants to steer a wide berth around any activity that might give rise to a suit.34 Judges’ responses to retirement options are also consistent with the standard assumptions about rational self-interested behavior.35 Another empirical test of the economic model finds that “all else equal, [district] judges with stronger preferences for publishing opinions, those with lighter workloads, or those who are able to write publishable decisions more efficiently [are] more likely to publish their decisions.”36
+
+The economic theory of judicial behavior has to surmount two difficulties. One is neglect of psychological factors—of cognitive limitations and emotional forces that shape behavior along with rational calculation. But cognitive limitations can be modeled as costs of processing information, and we saw in discussing dissent aversion how emotion (there viewed as the precondition for making credible threats) can be an efficient instrument of utility maximization. In chapter 4 we shall see how the costs of processing information are often so great as to make intuition—a telescoped form of thinking—a more rational method of arriving at a judicial decision than logical, step-by-step reasoning.
+
+The other difficulty that the economic theory faces is that of identifying the incentives and constraints that shape the vocational behavior of workers whose work is so structured as to eliminate the common incentives and constraints of the workplace. Federal judges cannot be removed from office, short of gross misconduct, and cannot be docked pay, exiled to undesirable judicial venues, or paid bonuses. Their powers vis-à-vis each other (for example, to preside, to make opinion assignments, to be promoted to chief judge) are determined by seniority37 rather than by appointment. And their opportunities for promotion to a higher court, which in the case of federal court of appeals judges means to the Supreme Court of the United States, are too limited to make concern with being promoted play a major role in the thinking of most of them (or of any Supreme Court Justice, unless he thinks himself a candidate to become Chief Justice). Furthermore, judges are forbidden to sit in cases in which they might have a personal stake, such as a case in which a relative is a party or a lawyer for a party, or in which one of the parties is a corporation in which the judge owns stock.
+
+So it is as if the designers of the federal judiciary had set out to remove every possible stick and carrot to which judges might respond; perhaps they did. And with self-interest in the usual sense out of the picture, economic analysis of judicial behavior might seem blocked at the threshold. But self-interest is not really out of the picture; it is rather that a judge’s votes cannot be explained by reference to standard self-interest variables, such as price; there are other self-interest variables. In addition, economic analysis of judicial behavior can draw on Friedrich Hayek’s biggest legacy to economics—recognition that limitations of knowledge present an economic problem even when the persons whose behavior is being analyzed are assumed not to be self-interested. Hayek’s criticism of central planning was based on the difficulty of aggregating information by means other than the price system rather than on the motivations of the central planners.
+
+The interplay of self-interest and of limitations of knowledge is illustrated in the judicial arena by attempts to evaluate judicial performance. Objective evaluations might generate searing criticisms that would shame judges into behaving themselves because shame, like guilt, is a cost. (Criticism can induce guilt as well as shame, of course.) But the information necessary for such evaluations is difficult, maybe impossible, to obtain.38 This is due partly to the ability of an appellate judge to hide behind his law clerks, to whom he can delegate much of his job, including the writing of judicial opinions. (Trial judges cannot hide as well, because they have to preside over trials in open court.) A further obstacle is that the criteria of a good judge are contested. And even when they are agreed upon, their application to a difficult case is likely to be fraught with subjectivity. We shall see in chapter 11 that even that most celebrated of modern decisions, Brown v. Board of Education, can confidently be adjudged “correct” only by virtue of widespread acquiescence in its result (the test of time). While a scientific theory can be supported or undermined by observing whether its adoption results in the consequences that the theory predicts, the consequences of a judicial doctrine or decision often cannot be determined. There is not even agreement that the test of a judicial decision or doctrine should be the goodness or badness of its consequences. Some legal thinkers believe that law oriented toward consequences is illegitimate.
+
+With the criteria for evaluating judicial action unsettled, evaluations of judicial performance are likely to be contaminated by the evaluator’s politics. This enables judges to take the easy path of dismissing academic criticism of their work as being the product of politics (plus envy and ignorance of judicial working conditions) and to dismiss journalistic criticism as likewise the product of politics and ignorance. These dismissals are self-serving and sometimes unjust, but they blunt the influence of criticism on judicial performance. In addition, most judges are largely unaware of media criticism of their work and particularly of academic criticism.
+
+The economic theory of judicial behavior overlaps not only the strategic, sociological, and psychological theories but also the organizational and the pragmatic. The former builds on the insight that an agent and his principal, such as a judge and the government that employs him, have divergent interests and that the principal will try to create an organizational structure that will minimize this divergence and the agent will resist.39 From this standpoint the highly prized institution of the “independent” judiciary presents a paradox, for what sense can it make for an agent to be independent of his principal? Yet some nonjudicial agents, ranging from commissioned salesmen to physicians, are authorized by their principals (their patients, in the latter example) to operate with considerable independence, and this can be consistent with the basic economics of principal-agent relations.
+
+An example of how the judicial process is structured to motivate the judge-agents is the doctrine of precedent. Although precedents can be distinguished and even overruled, they have some authority, which means that there is a cost to circumventing or eliminating a precedent. Since any published decision of an appellate court is a precedent, the doctrine raises the cost of judicial error and so can be expected to make judges more careful in deciding a case and explaining the decision in an opinion that will create an appropriate precedent. Consistent adherence to precedent by appellate judges also makes it more likely that lower courts will be the faithful agents of those judges, because they will be receiving clearer directives.40
+
+“Pragmatism,” in the sense in which the word is used in the pragmatic theory of judicial behavior, will require careful definition. But for now it is enough to note that the word refers to basing judgments (legal or otherwise) on consequences, rather than on deduction from premises in the manner of a syllogism. Pragmatism bears a family resemblance to utilitarianism and, in a commercial society like ours, to welfare economics, but without a commitment to the specific ways in which those philosophies evaluate consequences. In law, pragmatism refers to basing a judicial decision on the effects the decision is likely to have, rather than on the language of a statute or of a case, or more generally on a preexisting rule. So it is the opposite of legalism—or so it seems; the reality is somewhat different, as we shall see in subsequent chapters.
+
+The phenomenological theory of judicial behavior41 is a bridge from the pragmatic theory to the legalist theory, with which I shall end the chapter. Whereas psychology studies primarily the unconscious processes of the human mind, phenomenology studies first-person consciousness—experience as it presents itself to the conscious mind. So we might ask what it feels like to make a judicial decision.42 The question interests some judges (not all, by any means), and some of these self-conscious judges, most famously Cardozo in The Nature of the Judicial Process, have published their impressions. I discuss that literature in chapter 9. Most judicial self-descriptions turn out to be of pragmatic judges, though the word rarely appears. This does not mean that most judges are pragmatists. The judges who internalize the “official” line, which is legalism, take for granted what they do, so they feel no urgent need to explain and defend it. And of course it is perilous to infer behavior from protestation. But the self-declared pragmatists are a little more credible than the self-declared legalists. They are swimming against the tide, asserting the less respectable position and thereby courting controversy. They at least are demonstrating the courage of their convictions.
+
+This brings me last to the legalist theory of judging. Battered though it has been by legal realists and pragmatists, “crits” (that is, members of the Critical Legal Studies movement), political scientists, economic analysts of law, and other skeptics, it remains the judiciary’s “official” theory of judicial behavior. It is proclaimed most emphatically by Justices of the Supreme Court, since the Court is in fact a political court, especially in regard to constitutional law, and therefore especially in need of protective coloration.
+
+Legalism, considered as a positive theory of judicial behavior (it is more commonly a normative theory), hypothesizes that judicial decisions are determined by “the law,” conceived of as a body of preexisting rules found stated in canonical legal materials, such as constitutional and statutory texts and previous decisions of the same or a higher court, or derivable from those materials by logical operations.43 The treatment decisions of physicians are determined (most of them anyway) by the physicians’ understanding of the structure of the physical world, and the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting “the law” rather than by factors that are personal to judges, in the sense of varying among them, such as ideology, personality, and personal background. The ideal legalist decision is the product of a syllogism in which a rule of law supplies the major premise, the facts of the case supply the minor one, and the decision is the conclusion. The rule might have to be extracted from a statute or a constitutional provision, but the legalist model comes complete with a set of rules of interpretation (the “canons of construction”), so that interpretation too becomes a rule-bound activity, purging judicial discretion.
+
+The legalist slogan is “the rule of law.”44 But this, as we shall see in chapter 3, is an ambiguous term. Better (though still somewhat ambiguous, as we shall also see there) is a “government of laws not men.” Objectivity, as distinguished from neutrality or impartiality, implies observer independence. If you ask someone what is 2 + 2, you will get the same answer whether he is a Democrat or a Republican, a theosophist, a libertarian, a Holocaust denier, or a cannibal. And if legal questions are similarly susceptible to being answered by methods of exact inquiry, then it does not matter how different the “men” who administer the laws are, and it is really the “laws” that govern.45
+
+Legalism treats law as an autonomous discipline, a “limited domain.”46 Since the rules are given and have only to be applied, requiring only (besides fact-finding) reading legal materials and performing logical operations, the legalist judge is uninterested professionally in the social sciences, philosophy, or any other possible sources of guidance for making policy judgments, because he is not engaged, or at least he thinks he is not engaged, in making such judgments. It thus counts against legalism as a description of the behavior of American judges that the greater availability to them (for example, on the World Wide Web) of extralegal materials that a pragmatist might think relevant to a judicial decision has led to more frequent mention of those materials in judicial opinions.47 It also counts against the descriptive adequacy of legalism that judges are expected to have “good judgment,” to be wise, experienced, mature; none are qualities requisite in a logician.
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+The legalist theory makes a bookend with the pragmatist theory, but even more dramatically with the attitudinal theory. Judges like to justify their decisions as dictated by “the law,” so must not attitudinalists be contending that the judges are lying or deluded? Actually no, unless they believe that judicial decisions are never influenced by “the law.” Even in politically charged areas such as abortion, gay marriage, affirmative action, labor law, national security, election law, church and state, and voting rights, legalism can be expected to influence at least some judges some of the time. But neither would a legalist deny that judicial decisions are often influenced by the judges’ politics, though he would deplore the fact. At the level of positive analysis, therefore, there is ample room for a middle ground between legalism and attitudinalism, as in the following summary of the results of an empirical study of judges’ adherence to precedent:
+
+
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+Precedent appears to have a moderately constraining effect on judicial freedom. The associations of ideology and outcome in the cases provide measured support for the realist hypotheses, but the study of cases of first impression refute the most extreme claims of realism. Judicial decisionmaking is influenced by precedent, but also by ideology and other factors. The growth of precedent in an area does not appear to restrict judicial discretion; if anything, the development of the law may increase such discretion.48
+
+
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+The middle ground is not the idea that adjudication is part “law” and part “ideology.” When the authors of a study of political voting by federal appellate judges, finding areas of law in which the judges’ presumed political leanings do not seem to influence their votes, conclude that “perhaps [in those areas] the law is effectively controlling,”49 they are defining “law” too narrowly. Law is suffused with ideology. The true middle ground, as long ago explained by Roscoe Pound, is a tripartite conception of law as legal doctrines (rules and standards), techniques for deriving and applying doctrines (techniques such as stare decisis—decision according to precedent—which often means distinguishing or overruling a precedent), and social and ethical (in a word, policy) views.50
+
+To which should be added the exercise, in certain circumstances, of pure discretion. When a judge schedules the start of a trial for 9:00 A.M. rather than 9:30 A.M., he is not guided by law in any meaningful sense. He is making a discretionary determination. Yet it is not “lawless.” I am therefore led to embrace an adjectival rather than a substantive understanding of “law” in relation to judicial behavior. The analogy is to the proper understanding of “luck.” “Luck” is a noun but does not denote a property. To be lucky is to be the beneficiary of a random event, or more commonly of a series of such events (a “run”), rather than to possess something—“luck”—that alters the odds in one’s favor. In the expression “he made his own luck,” the word “luck” actually denotes its opposite; it denotes a reduction in randomness. Similarly, when we say that a judge’s decisions are in conformity with “the law,” we do not mean that we can put his decisions next to something called “law” and see whether they are the same. We mean that the determinants of the decisions were things that it is lawful for judges to take into account consciously or unconsciously. A judge is not acting lawlessly unless there is no authorized method by which he could deny some claim that a litigant was urging on him, yet he denied it nevertheless.
+
+But the fact that judges follow precedent regularly even though not invariably does not support the legalist theory as strongly as one might expect. The original precedent in a line of precedents could not have been based on precedent. At the origin of the line must be something else. It might well be a policy judgment or, what often will amount to the same thing, the interpretation of a vague statute or vague constitutional provision—and the policy judgment or the policy-laden interpretation might well be determined by ideology.51 To describe a case as “easy” because it is “governed” by some precedent52 is to ignore the possibility that the precedent (or its ultimate ancestor) was the nonlegalist decision of a difficult, perhaps an indeterminate, case and that the decision to adhere to that precedent is an explicit or implicit policy judgment balancing the costs and benefits of adherence, since judges can overrule the prior cases of their court and thus wipe precedents off the books. That is what makes some legalists suspicious of the doctrine of precedent.
+
+When a judge is following a precedent not of his own court but of the court to which his decisions can be appealed, he is not making a political judgment; he is in effect yielding to superior force. Even when a precedent is not binding (for it may not be a precedent of the higher court), it may be so deeply woven into the fabric of the law that its overruling would be unthinkable. (Holmes gave the example of the doctrine of consideration in contract law.) Most cases are not even appealed, because the outcome of the appeal is a forgone conclusion, usually because the case really is “controlled” by precedent or clear statutory language. For the same reason, many potential cases are never even filed. So legalism has considerable sway, and the lower the level at which a legal dispute is resolved, the greater that sway. The higher the level, however, and so the weaker the tug of legalism, the greater the impact of decisions on legal rights and duties. The higher levels of the judiciary, culminating in the Supreme Court, are where a great deal of law is made, to be administered (albeit with imperfect fidelity) in mostly legalist fashion by the lower courts.
+
+Often “following” precedent really means making a policy-based choice among competing precedents or a policy-influenced interpretation of a precedent’s scope. Because judges are reluctant to overrule decisions—their preference is for “distinguishing” them to death rather than explicitly overruling them, in order to preserve the appearance of the law’s continuity and stability—the landscape of case law is littered with inconsistent precedents among which current judges can pick and choose, resurrecting if need be a precedent that had died but had not been given a decent burial. (This may explain why ideology plays a greater role in judicial decision making the more precedents there are in an area of law.53) The problem is particularly serious in the Supreme Court. As a result of the Court’s long history and sharp ideological swings, there is a large stock of precedents that not having been formally overruled are available for opportunistic rehabilitation. For only when a court is dealing with a precedent of the court that has appellate jurisdiction over it is the legalist methodology actually enforced, and when it is not enforced it often is ignored or overridden. But not always. The risk of reversal by the Supreme Court is so slight these days that courts of appeals (and state supreme courts as well) could get away with a good deal more ignoring of Supreme Court precedent than they do. Lower-court judges follow Supreme Court precedent less out of fear of reversal if they do not than because (in my terms) adhering to precedents created by a higher court is one of the rules of the judicial “game” that judges internalize.54
+
+Frank Cross argues that the fact that there is a high affirmance rate of federal district court decisions by the courts of appeals, and that the rate is higher when the standard of appellate review is more deferential, shows that appellate judges are bowing to the commands of “the law.”55 All it really shows is that most cases are routine (and would not be litigated at all if lawyers were better at predicting judicial outcomes), rather than residing in that uncomfortable open region in which judges are at large. The routine case is dispatched with least fuss by legalist methods. It is in such a case that the virtues of such methods shine; feeling no need to go beyond those methods to decide the case satisfactorily, the judge can plume himself on his self-abnegation without surrendering discretion where it counts. It is also easier to write a convincing opinion affirming a decision after ruling that the lower court’s decision was entitled to deferential review, as it is easier to show that a decision is not clearly wrong than to show that it is right.
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+Cross finds that personal characteristics (including personal background characteristics, such as race and gender), as well as ideology, influence judicial decisions,56 but that such characteristics, especially personal experience, such as a judge’s having been a prosecutor before he became a judge, have much less influence than his ideology as proxied by the political identity of the President who appointed him. This follows, Cross argues, from Presidents’ being focused on ideology.57 If most female lawyers are liberal, a conservative President will still pick women to be judges. But he will be picking them from the minority of women who are conservative, and this will tend to wash out the effect of gender on a judge’s decisions. The strategy is consistent with female judges’ being on average more liberal than male judges, either in areas of law that may not be important to the appointing authorities58 or because it is easier for a liberal President to find qualified female judicial candidates who share his ideology than it is for a conservative President to do so.
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+The fact that ideology is correlated with personal characteristics suggests the possibility, examined in chapter 4, that such characteristics, along with psychological traits, influence the formation of a judge’s ideology and thus, at one remove, the judge’s decisions in the open area.
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+Attitudinalists and legalists disagree about the extent of political judging rather than about its existence. One source of that disagreement is that attitudinalists, who mostly are political scientists rather than lawyers, are positive theorists, while most legalists are lawyers, who—inveterately normative as most lawyers are—very much want, and are predisposed by their training and by the mores and understandings of the profession to expect, judges to conform to the legalist conception. Legalists’ normative project would be undermined if most judges, and not just an errant minority, turned out to be guided by politics or other factors that do not enter into legalists’ conception of “the law.” In contrast, since the subject of political science is politics, political scientists expect judging to be imbued with politics—and even want it to be, as demonstrating the power of political science to illuminate behavior.
+
+But what if attitudinalists and legalists alike are wrong about what the law is? What if law in the judicial setting is deeply, intrinsically political, in the sense of responsive to judges’ political preferences, but also deeply, intrinsically legalist, in the sense of heavily influenced by conventionally “legal” materials and techniques of decision making? Then strict legalists might be off base both as positive and as normative theorists, while political scientists’ positive theory might be off base because they exaggerated the degree to which judicial decisions are motivated by politics. I think both things are true, that legalists have too narrow a sense of what law (or doing law) is and that attitudinalists exaggerate the influence of politics, not only partisan politics but also ideological politics, on judicial behavior, at least below the level of the U.S. Supreme Court. I am not criticizing the attitudinalists’ empirical work, but merely trying to characterize accurately what they have found.
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+Legalists acknowledge that their methods cannot close the deal every time.59 That is an understatement. Legalist methods fail in many cases that reach appellate courts, and those are precisely the cases that most influence the further development of the law.60 There are too many vague statutes and even vaguer constitutional provisions, statutory gaps and inconsistencies, professedly discretionary domains, obsolete and conflicting precedents, and factual aporias.
+
+Some of the resulting uncertainties could be dispelled by the adoption of legalist meta-rules, such as that a statute should not be invalidated unless its unconstitutionality is clear beyond a reasonable doubt, that statutory exceptions are to be construed narrowly, that judges in interpreting statutory or constitutional provisions must never search beneath the surface meaning for the purpose of the provision, or that precedents can be overruled only by legislation. But these rules, though advocated by some legalists, cannot be derived by logical or quasi-logical means from agreed-upon premises; they are not themselves fruits or exemplars of legalistic reasoning. For example, nowhere does the Constitution say that constitutional interpretation must be strict. That rule must be posited; it cannot be deduced. The meta-rules represent policy choices, and policy choices so unsatisfactory that as a result there are no consistent legalists (recall my quotation from Justice Scalia in the introduction61) in the judiciary, as distinct from the academy, where reality does not constrain imagination. Nor, once having created a comprehensive system of meta-rules, could judges turn over a new leaf, as it were, and decide all cases in strict conformity with the rules. The rapidly changing social, economic, and political environment would soon knock the rules out of alignment with the circumstances in which they were being applied. New rounds of policy-flavored rule changes would be unavoidable.
+
+Legalists could meet pragmatists halfway, as by accepting the legitimacy of purposive interpretation of rules (see chapter 7). Such interpretation is policy oriented, but the policy need not be that of the interpreter; it may really be the policy that animates the statute—the policy the legislators wanted the statute to promote. So judicial discretion, though not eliminated, would be trimmed. Most legalists are already moderate in the sense of being willing to allow common law judges (and almost all American judges have a common law as well as a statutory and constitutional jurisdiction) to overrule and distinguish precedents and create new common law rules and standards. Legalists in regard to the interpretation of statutes and constitutions, originalists recognize a legitimate role for discretion when judges are wearing their common law hats. They are even willing to recognize a category of “common law statutes,” such as the Sherman Act, as I noted in the introduction. These are statutes that judges treat with the same freedom as they treat common law precedents, as when the Court said, again of the Sherman Act, that the Act “cannot mean what it says.”62 The Supreme Court’s conservative legalists joined Justice Kennedy’s opinion denominating the Sherman Act a common law statute, without a murmur.
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+Moderate legalists are matched by moderate pragmatists—pragmatists who believe that the institutional consequences of judicial decisions argue for a judicial approach heavily seasoned with respect for the language of contracts, statutes, and precedents. The two moderate judicial schools may come close enough to enable most cases in the open area to be disposed of with minimum disagreement.63 But a space will be left in which a legalist methodology might produce substantive policies that would make many pragmatist judges gag. Responsible pragmatists will be guided in interpreting a statute by what they think a legislature of thoughtful nonpartisan representatives of the people would have done had the decision been up to them (unless it is apparent that the legislature did not do this—that the governing statutory provision was the product of an unprincipled compromise). Legalists shudder at the thought, but are not themselves immune to the tug of their political ideology. Far from it, if only because legalism so often fails to yield a determinate result.
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+Yet the existence of a solid legalist core in judicial decision making even at the highest levels must not be overlooked. Thomas Hansford and James Spriggs point out that while “the [Supreme Court] justices interpret precedent with a keen eye toward moving existing policy closer to their preferred policies,”64 they also accord considerable weight even to precedents that do not conform to their ideology if the precedents have achieved what the authors call “precedent vitality” by virtue of having been favorably cited in many cases over a substantial period of time.65 Yet we shall see in chapter 10 that in a recent case a plurality of the Justices reinterpreted Brown v. Board of Education, one of the Supreme Court’s most hallowed precedents, to make it stand for a conservative principle (affirmative action is unconstitutional) remote from the decision’s original liberal meaning.
+
+The percentage of the Court’s decisions that are unanimous might seem to place an upper bound on legalism in the Court. Over the past decade an average of 36 percent of decisions in which the Court issued an opinion have been unanimous. Interestingly, as shown in Table 7, this is an increase over the two preceding decades. Does that mean the Court is becoming more legalist? Perhaps so. But an alternative hypothesis is that it is becoming more uniform. Today, unlike in 1975, all the Justices are former federal court of appeals judges. This is the culmination of a trend. In 1950 only one of the Justices was a former federal court of appeals judge (Sherman Minton). Since 1975 only one Justice has been appointed who was not a federal court of appeals judge—Justice O’Connor, and she was a state appellate judge. That all the current Justices are former judges with no political experience confirms the limitations of legalism at the Supreme Court level. For despite their lack of political experience and their having been inducted into the culture of judging, with its legalist traditions, before being appointed to the Court, the Justices are unable to attain the degree of consensus that should be attainable by judges engaged in an essentially logical enterprise, since logical proofs are observer independent.
+
+The percentages in Table 7 are at most only outer limits, because legalism and uniformity are different sources of judicial consensus. A case may present a pure issue of policy that legalist techniques cannot begin to resolve. But if the judges happen to have similar views, which might be based on similar professional experiences, they may reach unanimity as easily as they would in a case that could be formulated as a syllogism. Even as outer limits, however, the percentages are misleading. They ignore the petitions for certiorari that the Justices turn down because they are not minded to disturb a precedent for which they would not have voted in the first place, and the petitions that are never filed because the Court would be sure to deny them on the basis of established precedent or clear constitutional or statutory language.
+
+Table 7 Average Percentage of Unanimous Opinions in the Supreme Court, 1975–2005 (in percent)
+
+
+
+1975–1985
+
+
+
+21.8
+
+
+
+
+
+1985–1995
+
+
+
+27.5
+
+
+
+
+
+1995–2005
+
+
+
+36.0
+
+
+
+
+
+1975–2005
+
+
+
+28.4
+
+
+
+
+
+Source: Statistics published annually in the November issue of the Harvard Law Review.
+
+Because of dissent aversion, unanimity cannot be used to estimate consensus in the decisions of the lower courts (obviously not in the trial courts, where the judge sits by himself). The dissent rate is much lower than the amount of disagreement. But dissent aversion is very weak in the Supreme Court. The cases the Court hears tend to arouse strong emotions. And the Justices have a lighter workload than lower-court judges, are more in the public eye and therefore more concerned with projecting a coherent judicial philosophy, and are more likely to influence the law even when dissenting, because of the instability of Supreme Court precedent as a consequence of the greater stakes in the cases that the Court decides and the absence of review by a higher court. With their heavier but less momentous caseloads, the courts of appeals are more wedded to precedent than the Supreme Court is, and as a result a dissent in the court of appeals has less influence on the law; the benefits therefore are usually outweighed by the costs, discussed earlier, of dissenting. This may explain the surprising finding that, after adjustment for other factors (an essential qualification), Supreme Court Justices appointed from the courts of appeals are more liberal than other Supreme Court Justices.66 The former have been socialized by their lower-court judicial experience to be respectful of precedent, and the most controversial Supreme Court precedents are those created in the liberal Warren Court era.
+
+The place of legalism in the work of the Supreme Court is illustrated by Whitman v. American Trucking Associations,67 a unanimous decision though with multiple concurring opinions. Congress had directed the Environmental Protection Agency to prescribe national air quality standards “the attainment and maintenance of which . . . are requisite to protect the public health” with “an adequate margin of safety.”68 The Court held that this directive did not permit the agency to consider the cost of complying with a standard. The agency can consider only whether the standard is necessary to protect the public health with an adequate margin of safety. The “adequate margin” qualification implies that doubts are to be resolved in favor of finding that a possible standard is indeed “requisite,” an approach inconsistent with basing a decision on a comparison of costs and benefits. The majority opinion was by Justice Scalia, who is hardly an ardent environmentalist; had he been a member of Congress when the Clean Air Act was passed, he doubtless would have voted to allow the EPA to consider costs. As explained in Justice Breyer’s concurrence, the argument against allowing such consideration is that it lessens polluters’ incentive to press for technological innovations that would lower the cost of reducing pollution. Denial of a cost defense is thus “technology-forcing,”69 which is a shibboleth of environmentalists.
+
+The statutory language provided no handle for recognizing a cost defense. Nor did the legislative history, reviewed at length in Breyer’s opinion. Other provisions of the Clean Air Act require the EPA to consider compliance cost. It is unlikely that had Congress intended this to be the case with regard to national air quality standards as well, it would not have said so; it could not have overlooked the issue, a plank in the environmentalists’ platform and a salient concern of industry. Also, loopholes in the Act allow the cost of complying with the standards to be brought in by the back door, which minimizes the risk that the EPA will impose on the industry compliance costs absurdly disproportionate to the environmental benefits. This is significant because Justice Scalia acknowledges an “absurdity exception” to the literal interpretation of statutes—incidentally a sign that legalists flinch from embracing the full implications of their position.
+
+Scalia would have been hard-pressed to write a persuasive opinion in support of the opposite outcome. Congress had left little interpretive leeway. Such an opinion would have invited not only intense professional criticism but possible congressional retaliation, since environmentalism is politically popular and Congress does not like the courts to treat its statutes as first drafts that a judge is free to rewrite to promote his personal policy agenda. So here is an example in which a legalist approach (more precisely, an approximation to such an approach, as the Court’s analysis was not strictly an exercise in logical deduction) is implied not only by a judicial commitment to legalism but also by the strategic theory of judicial behavior. Such decisions are common even in the Supreme Court, though more so in nonconstitutional cases.
+
+Common but not typical. Consider Bell Atlantic Corp. v. Twombly.70 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires of a complaint or other pleading only that it contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This is what is called “notice pleading.” It supplanted the requirement (which prevailed before the civil rules were promulgated in 1938) that the complaint plead facts that would show that the plaintiff was entitled to the legal relief his suit was seeking. Bell Atlantic holds that a complaint charging that an agreement between firms not to compete, in violation of antitrust law, must contain “enough factual matter (taken as true) to suggest that an agreement was made . . . An allegation of parallel conduct and a bare assertion of conspiracy will not suffice.”71 The Court rejected the rule stated in a much-cited earlier decision, Conley v. Gibson, “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”72 The majority in Bell Atlantic was concerned that Conley’s heretofore canonical formula might force a defendant in an antitrust case to conduct expensive pretrial discovery in order to demonstrate the groundlessness of a plaintiff’s case.73 The dissent pointed out correctly that district judges have ample authority to prevent abusive discovery. But the majority said that the rules granting judges that authority “have been, and are doomed to be, hollow.”74
+
+I am not concerned with which faction had the better case. All that interests me is that nothing in the repertoire of legalism could have decided it, especially in favor of the position in the majority opinion (which nonetheless the four most conservative Justices, all votaries of “textualism-originalism,” the currently most influential school of legalism, joined without a peep). Rule 8(a)(2) does not say what the “short and plain statement” is supposed to contain; it does not mention facts. Precedent, as illustrated by the Conley case, supported the dissent. But the majority had a good argument, though not a legalist argument, that “notice” (in the term “notice pleading”) should be interpreted to require the pleading of some facts in an antitrust conspiracy case, as otherwise the defendant may have very little sense of what the plaintiff’s claim is. The lower courts had already made the point with reference to charges of conspiracy generally, owing to the vagueness of such charges.75 The effect of minimal pleading on discovery, and whether it might be outweighed by the difficulty of pleading details of a conspiracy without pretrial discovery (which follows rather than precedes the filing of the complaint), were issues of antitrust policy and case management policy rather than of the meaning of legal texts. Right or wrong, the decision in Bell Atlantic was pragmatic rather than legalist.
+
+Or consider once again Leegin Creative Leather Products, Inc. v. PSKS, Inc.,76 which overruled the almost century-old precedent of Dr. Miles Medical Co. v. John D. Park & Sons Co.77 The earlier case had held that agreements by which a manufacturer places a floor under his distributors’ resale price are a per se violation of the Sherman Act, on the ground that they have the same effect as if the retailers had gotten together and decided to fix a minimum price at which to sell the good. That was wrong as a matter of economics, because a manufacturer has no interest in allowing his distributors to cartelize distribution, thus restricting his access to his customers. If the manufacturer places a floor under his retailers’ prices, it is because the floor serves his interest in competing more effectively against other manufacturers, as by encouraging the retailers to provide presale services to customers for the manufacturer’s good.78 So Dr. Miles was rightly overruled. But the overruling, and its rightness, owed nothing to legalist thinking. A venerable precedent was overruled because it was bad economics. Leegin is a triumph of pragmatism.
+
+Leegin notwithstanding, it would be a mistake to think that precedent has no constraining effect on Supreme Court decision making, even in constitutional law. Consider Table 8, which lists Supreme Court appointments, and the Justices they replaced, since Nixon began the dismantling of the Warren Court, and notes the party of the appointing President.
+
+Table 8 Replacement of Supreme Court Justices, 1969–2006
+
+
+
+The fact that 5 of the 14 replaced Justices and only 2 of the Justices who replaced them were appointed by Democratic Presidents is less important than that, with the exception of Ginsburg’s replacement of White, every one of the replacements was more conservative than the Justice he or she replaced, though in some cases, notably Powell’s replacement by Kennedy, the difference was slight. Throughout the entire 37-year period the Court has been moving rightward from the Warren Court, and, as expected, its decisions have been more conservative than they would have been had all the replacements been as liberal as the average member of the Warren Court. Yet most of the landmark Warren Court decisions, in areas such as criminal procedure, legislative apportionment, freedom of speech and religion, racial discrimination, prisoner rights, substantive due process, and constitutional rights, and the Warrenesque decisions of the Burger Court, such as Roe v. Wade, have remained largely or entirely intact, even though most would have been decided differently by the present Court had they been given to it to decide. The expansion of rights brought about by the Warren Court, and to a more limited extent by the Burger Court, has ceased; retrenchment is in the air. But there is no indication of a wholesale rejection of precedents that most of the current Justices may wish had never been created. So even this most political of courts, in its most political domain, that of constitutional law, is, to a degree, legalistic.
+
+
+1. For reviews of the literature, see Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior, ch. 1 (2006); Barry Friedman, “The Politics of Judicial Review,” 84 Texas Law Review 257 (2005). For an anthology suggestive of the diversity of the literature, see Supreme Court Decision-Making: New Institutionalist Approaches (Cornell W. Clayton and Howard Gillman eds. 1999).
+
+2. See, for example, Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002); Robert A. Carp and Ronald Stidham, Judicial Process in America 294 (2001) (tab. 10–1); William N. Eskridge, Jr., and Lauren E. Baer, “The Supreme Court’s Deference Continuum: An Empirical Analysis (from Chevron to Hamdan)” (Yale Law School, May 11, 2007); Andrew D. Martin, Kevin M. Quinn, and Lee Epstein, “The Median Justice on the United States Supreme Court,” 83 North Carolina Law Review 1275 (2005); Micheal W. Giles, Virginia A. Hettinger, and Todd Peppers, “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” 54 Political Research Quarterly 623 (2001); Tracey E. George, “Developing a Positive Theory of Decision Making on U.S. Courts of Appeals,” 58 Ohio State Law Journal 1635, 1678 (1998). For criticism, see Frank B. Cross, “Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance,” 92 Northwestern Law Review 251 (1997); Barry Friedman, “Taking Law Seriously,” 4 Perspectives on Politics 261 (2006).
+
+3. Paul Brace, Laura Langer, and Melinda Gann Hall, “Measuring the Preferences of State Supreme Court Judges,” 62 Journal of Politics 387 (2000); Carp and Stidham, note 2 above, at 296–297.
+
+4. Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” 83 American Political Science Review 557 (1989); Segal et al., “Ideological Values and the Votes of U.S. Supreme Court Justices Revisited,” 57 Journal of Politics 812 (1995). See also Martin, Quinn, and Epstein, note 2 above, at 1285–1300.
+
+5. Nancy Scherer, “Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?” 35 Law and Society Review 191 (2001).
+
+6. Some of the classifications used in the data set from which the statistics in Tables 1 and 2 are drawn are erroneous, such as classifying all votes for plaintiffs in intellectual property cases as “liberal.” I have corrected such errors; for the details of the corrections and a fuller analysis of the data, see William M. Landes and Richard A. Posner, “Judicial Behavior: A Statistical Analysis” (University of Chicago Law School, Oct. 2007).
+
+7. Christina L. Boyd, Lee Epstein, and Andrew D. Martin, “Untangling the Causal Effects of Sex on Judging” (Northwestern University School of Law and Washington University School of Law and Department of Political Science, July 28, 2007); Cass R. Sunstein et al., Are Judges Political? An Empirical Analysis of the Federal Judiciary (2006); Thomas J. Miles and Cass R. Sunstein, “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron,” 73 University of Chicago Law Review 823 (2006); Ward Farnsworth, “The Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeals,” 86 Boston University Law Review 1083 (2006); Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh, The Supreme Court in the American Legal System 236–242 (2005); Daniel R. Pinello, Gay Rights and American Law (2003); Frank B. Cross, “Decision Making in the U.S. Circuit Courts of Appeals,” 91 California Law Review 1457, 1504–1509 (2003); David E. Klein, Making Law in the United States Court of Appeals (2002); Emerson H. Tiller and Frank B. Cross, “A Modest Proposal for Improving American Justice,” 99 Columbia Law Review 215, 218–226 (1999); George, note 2 above; Richard L. Revesz, “Environmental Regulation, Ideology, and the D.C. Circuit,” 83 Virginia Law Review 1717 (1997); Sheldon Goldman, “Voting Behavior on the United States Courts of Appeals Revisited,” 69 American Political Science Review 491 (1975). For an interesting case study of how the political preferences of court of appeals judges affect decisions, see Paul J. Wahlbeck, “The Development of a Legal Rule: The Federal Common Law of Public Nuisance,” 32 Law and Society Review 613 (1998).
+
+8. C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts (1996); Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, “Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning,” 73 New York University Law Review 1377 (1998); Ahmed E. Taha, “Judges’ Political Orientations and the Selection of Disputes for Litigation” (Wake Forest University School of Law, Jan. 2007), http://ssrn.com/abstract=963468 (visited Sept. 2, 2007).
+
+9. On which see, for example, Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments (2005); John R. Lott, Jr., “The Judicial Confirmation Process: The Difficulty with Being Smart,” 2 Journal of Empirical Legal Studies 407 (2005).
+
+10. Ross M. Stolzenberg and James Lindgren, “Politicized Departure from the United States Supreme Court” (University of Chicago and Northwestern University, Mar. 18, 2007); James F. Spriggs and Paul J. Wahlbeck, “Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893–1991,” 48 Political Research Quarterly 573 (1995); Deborah J. Barrow and Gary Zuk, “An Institutional Analysis of Turnover in the Lower Federal Courts, 1900–1987,” 52 Journal of Politics 457, 467–468 (1990). Another straw in the wind is the surprising finding in a recent study that Supreme Court law clerks’ self-described political identity (Democratic or Republican) influences the political valence of their Justices’ votes. Todd C. Peppers and Christopher Zorn, “Law Clerk Influence on Supreme Court Decision Making” (Roanoke College, Department of Public Affairs, and University of South Carolina, Department of Political Science, June 14, 2007).
+
+11. See Andrew D. Martin and Kevin M. Quinn, “Assessing Preference Change on the US Supreme Court,” 23 Journal of Law, Economics and Organization 365 (2007); Susan Haire, “Beyond the Gold Watch: Evaluating the Decision Making of Senior Judges on the U.S. Courts of Appeals” (University of Georgia, Department of Political Science, 2006).
+
+12. Andrew D. Martin et al., “Competing Approaches to Predicting Supreme Court Decision Making,” 2 Perspectives on Politics 761 (2004); Theodore W. Ruger et al., “The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking,” 104 Columbia Law Review 1150 (2004). The variables are “(1) circuit of origin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.); (4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court ruling; and (6) whether the petitioner argued that a law or practice is unconstitutional.” Id. at 1163.
+
+13. Ward Farnsworth, “Signatures of Ideology: The Case of the Supreme Court’s Criminal Docket,” 104 Michigan Law Review 67 (2005); Farnsworth, note 7 above.
+
+14. See, for example, Cross, note 7 above; Cross, note 2 above, at 285–311; Sunstein et al., note 7 above; Daniel R. Pinello, “Linking Party to Judicial Ideology in American Courts: A Meta-Analysis,” 20 Justice System Journal 219 (1999); C. Neal Tate and Roger Handberg, “Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior, 1916–88,” 35 American Journal of Political Science 460 (1991); Sheldon Goldman, “Voting Behavior on the United States Courts of Appeals Revisited,” 69 American Political Science Review 491 (1975).
+
+15. 245 U.S. 60 (1917).
+
+16. Id. at 79.
+
+17. Michael J. Klarman, Unfinished Business: Racial Equality in American Law 83–84 (2007).
+
+18. Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 187, 188 n. 22, 192 (2007).
+
+19. Michael Bailey and Kelly H. Chang, “Comparing Presidents, Senators, and Justices: Interinstitutional Preference Estimation,” 17 Journal of Law, Economics and Organization 477, 508 (2001).
+
+20. Mark A. Graber, “Constructing Judicial Review,” 8 Annual Review of Political Science 425, 427–428 (2005).
+
+21. See, for example, Daniel B. Rodriguez and Mathew D. McCubbins, “The Judiciary and the Role of Law: A Positive Political Theory Perspective” (forthcoming in Handbook on Political Economy); Symposium, “Positive Political Theory and the Law,” 15 Journal of Contemporary Legal Issues 1 (2006); Stephen J. Choi and G. Mitu Gulati, “Trading Votes for Reasoning: Covering in Judicial Opinions” (New York University School of Law and Duke University School of Law, Sept. 2007); Thomas H. Hammond, Chris W. Bonneau, and Reginald S. Sheenan, Strategic Behavior and Policy Choice on the U.S. Supreme Court (2005); Lee Epstein and Jack Knight, The Choices Justices Make (1998); Andrew F. Daughety and Jennifer F. Reinganum, “Speaking Up: A Model of Judicial Dissent and Discretionary Review,” 14 Supreme Court Economic Review 1 (2006); Forest Maltzman, James F. Spriggs II, and Paul J. Wahlbeck, Crafting Law on the Supreme Court: The Collegial Game (2000); McNollgast [Matthew D. McCubbins, Roger G. Noll, and Barry R. Weingast], “Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law,” 68 Southern California Law Review 1631 (1995); William N. Eskridge, Jr., “Overriding Supreme Court Statutory Interpretation Cases,” 101 Yale Law Journal 331 (1991).
+
+22. Charles Gardner Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (2006).
+
+23. See, for example, Lee Epstein, Jack Knight, and Andrew A. Martin, “The Supreme Court as a Strategic National Policymaker,” 50 Emory Law Journal 583 (2001); John A. Ferejohn and Barry R. Weingast, “A Positive Theory of Statutory Interpretation,” 12 International Review of Law and Economics 263 (1992); Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 Journal of Public Law 279 (1957).
+
+24. See George, note 2 above, at 1665–1696; Max M. Schanzenbach and Emerson H. Tiller, “Strategic Judging under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence,” 23 Journal of Law, Economics and Organization 24 (2007).
+
+25. 274 U.S. 200 (1927).
+
+26. See, for example, Sunstein et al., note 7 above; Thomas J. Miles and Cass R. Sunstein, “The Real World of Arbitrariness Review” (forthcoming in University of Chicago Law Review); Joshua B. Fischman, “Decision-Making under a Norm of Consensus: A Structural Analysis of Three-Judge Panels” (Tufts University, Department of Economics, May 2, 2007); Sean Farhang and Gregory Wawro, “Institutional Dynamics on the U.S. Court of Appeals: Minority Representation under Panel Decision Making,” 20 Journal of Law, Economics and Organization 299 (2004); Frank B. Cross and Emerson H. Tiller, “Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals,” 107 Yale Law Journal 2155, 2175–2176 (1998).
+
+27. Boyd, Epstein, and Martin, note 7 above.
+
+28. See Alice H. Eagly and Shelly Chaiken, The Psychology of Attitudes 655–659 (1993); references in Sunstein et al., note 7 above, at 75–77 nn. 26–30. The focus of the panel-composition literature on three-judge panels makes sense, incidentally, because the larger the panel (for example, the nine-judge panel in the U.S. Supreme Court), the less bargaining power a dissentient judge has.
+
+29. As proxied by the ideological “distance” between the dissenting judge and his majority colleagues with respect to the particular case. The greater the distance, the more likely a dissent. Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek, “Separate Opinion Writing on the United States Courts of Appeals,” 31 American Politics Research 215 (2003).
+
+30. See, for example, Collins J. Seitz, “Collegiality and the Court of Appeals: What Is Important to the Court as an Institution Is the Quality of the Working Relationship among Its Members,” 75 Judicature 26, 27 (1991). For evidence, see Stefanie A. Lindquist, “Bureaucratization and Balkanization: The Origins and Effects of Decision-Making Norms in the Federal Appellate Courts,” 41 University of Richmond Law Review 659, 695–696 and tab. 5 (2007). She finds that dissent is more frequent in federal courts of appeals the more judges the court has. This is what one expects if there is dissent aversion, because the larger the court, the less frequently any two of its judges will sit together, and so the less each will be motivated to invest in collegiality.
+
+31. On these “uniformity pressures,” see, for example, Rod Bond, “Group Size and Conformity,” 8 Group Processes and Intergroup Relations 331 (2005); Lee Ross and Richard E. Nisbett, The Person and the Situation: Perspectives on Social Psychology 27–46 (1991); Bibb Latané, “The Psychology of Social Impact,” 36 American Psychologist 343 (1981).
+
+32. See, for example, Rowland and Carp, note 8 above, ch. 7.
+
+33. See, for example, Richard A. Posner, “What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does),” 3 Supreme Court Economic Review 1 (1993); Posner, Overcoming Law, ch. 3 (1995); Richard S. Higgins and Paul H. Rubin, “Judicial Discretion,” 9 Journal of Legal Studies 129 (1980); Thomas J. Miceli and Metin M. Cosgel, “Reputation and Judicial Decision-Making,” 23 Journal of Economic Behavior and Organization 31 (1994); Christopher R. Drahozal, “Judicial Incentives and the Appeals Process,” 51 SMU Law Review 469 (1998); Andrew F. Daughety and Jennifer E. Reinganum, “Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts,” 1 American Law and Economics Review 158, 165–167 (1999); Susan B. Haire, Stefanie A. Lindquist, and Donald R. Songer, “Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective,” 37 Law and Society Review 143 (2003); Gordon Foxall, “What Judges Maximize: Toward an Economic Psychology of the Judicial Utility Function,” 25 Liverpool Law Review 177 (2005); Gilat Levy, “Careerist Judges and the Appeals Process,” 36 RAND Journal of Economics 275 (2005); Gillian K. Hadfield, “The Quality of Law: Judicial Incentives, Legal Human Capital and the Evolution of Law” (USC Center in Law, Economics and Organization Research Paper No. C07–3, Feb. 21, 2007), and references therein. For a first-rate contribution by a legal philosopher not associated with the “law and economics” movement, see Frederick Schauer, “Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior,” 68 University of Cincinnati Law Review 615 (2000).
+
+34. Daniel Klerman, “Jurisdictional Competition and the Evolution of the Common Law” (forthcoming in University of Chicago Law Review). See also Drahozal, note 33 above, at 472 n. 16; Todd J. Zywicki, “The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis,” 97 Northwestern University Law Review 1551 (2003).
+
+35. David R. Stras, “The Incentives Approach to Judicial Retirement,” 90 Minnesota Law Review 1417 (2006); Albert Yoon, “Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869–2002,” 8 American Law and Economics Review 143 (2006); Christopher J. W. Zorn and Steven R. Van Winkle, “A Competing Risks Model of Supreme Court Vacancies, 1789–1992,” 22 Political Behavior 145, 155 (2000); Barrow and Zuk, note 10 above. See also Stolzenberg and Lindgren, note 10 above, at 14.
+
+36. Ahmed E. Taha, “Publish or Paris? Evidence of How Judges Allocate Their Time,” 6 American Law and Economics Review 1, 25 (2004).
+
+37. The Chief Justice of the United States is separately appointed. But the chief judge of a federal court of appeals is simply whoever is the most senior judge of the court, in regular service (that is, not a “senior” judge in the sense of a judge who has taken senior status and is therefore entitled to work part-time), who is not yet 65 years old when the position becomes vacant.
+
+38. See generally Symposium, “Empirical Measures of Judicial Performance,” 32 Florida State University Law Review 1001 (2005), and further discussion of the issue in chapters 5 and 6 of this book.
+
+39. See Haire, Lindquist, and Songer, note 33 above; Donald R. Songer, Jeffrey A. Segal, and Charles M. Cameron, “The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court–Circuit Court Interactions,” 38 American Journal of Political Science 673 (1994); and chapter 5 of this book, which focuses on the organizational theory of judicial behavior. Jonathan Matthew Cohen, Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals (2002), analyzes how the court system solves problems of communication, coordination, and control within and between courts.
+
+40. Ethan Bueno de Mesquita and Matthew Stephenson, “Informative Precedent and Intra-judicial Communication,” 96 American Political Science Review 755 (2002).
+
+41. See Edward Rubin and Malcolm Feeley, “Creating Legal Doctrine,” 69 Southern California Law Review 1989 (1996); Duncan Kennedy, “Strategizing Strategic Behavior in Legal Interpretation,” 1996 Utah Law Review 785 (1996); Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology,” 36 Journal of Legal Education 518 (1986). Cf. Edward L. Rubin, “Putting Rational Actors in Their Place: Economics and Phenomenology,” 51 Vanderbilt Law Review 1705 (1998). I discuss Kennedy’s article “Freedom and Constraint in Adjudication” in chapter 8.
+
+42. For a lucid introduction to the phenomenology of judgment (not necessarily a legal judgment—the author’s principal example is the Judgment of Paris in Greek mythology), see Wayne M. Martin, Theories of Judgment: Psychology, Logic, Phenomenology, ch. 5 (2006).
+
+43. Frederick Schauer, “Formalism,” 97 Yale Law Journal 509 (1988).
+
+44. As in Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law 227–231 (2006); Tamanaha, “How an Instrumental View of Law Corrodes the Rule of Law,” 56 DePaul Law Review 469 (2007).
+
+45. This model of judicial objectivity is explicit in Friedrich A. Hayek, The Constitution of Liberty 153–154 (1960). See also Federalist No. 78 (1788) (Hamilton), in The Federalist Papers 226, 233 (Roy P. Fairfield ed., 2d ed. 1966), where we read that it is “indispensable that [the judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them” (emphasis added).
+
+46. Frederick Schauer, “The Limited Domain of the Law,” 90 Virginia Law Review 1909, 1914–1918, 1945 (2004).
+
+47. Frederick Schauer and Virginia J. Wise, “Legal Positivism as Legal Information,” 82 Cornell Law Review 1080, 1080–1082, 1093–1109 (1997).
+
+48. Stefanie A. Lindquist and Frank B. Cross, “Empirically Testing Dworkin’s Chain Novel Theory: Studying the Path of Precedent,” 80 New York University Law Review 1156, 1205–1206 (2005). For a particularly compelling articulation of the middle ground between the legalist and attitudinal models, see Klein, note 7 above, ch. 2.
+
+49. Sunstein et al., note 7 above, at 62.
+
+50. Roscoe Pound, “The Theory of Judicial Decision,” 36 Harvard Law Review 940, 945–46 (1923). See also Leon R. Yankwich, “The Art of Being a Judge,” 105 University of Pennsylvania Law Review 374, 378 (1957).
+
+51. For evidence, see Lindquist and Cross, note 48 above, at 1184 (tab. 1).
+
+52. Cross, note 2 above, at 286–287.
+
+53. Lindquist and Cross, note 48 above, at 1187–1200.
+
+54. Frank Cross, “Appellate Court Adherence to Precedent,” 2 Journal of Empirical Legal Studies 369 (2005). To the same effect, see David E. Klein and Robert J. Hume, “Fear of Reversal as an Explanation of Lower Court Compliance,” 37 Law and Society Review 579 (2003); James L. Gibson, “Judges’ Role Orientations, Attitudes, and Decisions: An Interactive Model,” 72 American Political Science Review 911 (1978).
+
+55. Frank B. Cross, Decision Making in the U.S. Courts of Appeals 48–53 (2007).
+
+56. Id., ch. 3.
+
+57. Id. at 92–93.
+
+58. Such as sex discrimination, which is strongly opposed by both political parties, and in which a significant effect of gender on decisions is found; see Boyd, Epstein, and Martin, note 7 above.
+
+59. Notably in Tamanaha’s book and article cited in note 44 above.
+
+60. This is the essential insight of legal realism. Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 20 and n. 25 (2007).
+
+61. I give further examples in chapter 9.
+
+62. National Society of Professional Engineers v. United States, 435 U.S. 679, 687 (1978).
+
+63. “It is, I think, the fact that most originalists are faint-hearted and most nonoriginalists are moderate . . . which accounts for the fact that the sharp divergence between the two philosophies does not produce an equivalently sharp divergence in judicial opinions.” Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 862 (1989).
+
+64. Thomas G. Hansford and James F. Spriggs II, The Politics of Precedent on the U.S. Supreme Court 126 (2006).
+
+65. Id. at 25, 126. See also Ronald Kahn, “Institutional Norms and Supreme Court Decision-Making: The Rehnquist Court on Privacy and Religion,” in Supreme Court Decision-Making: New Institutionalist Approaches 175 (Cornell W. Clayton and Howard Gillman eds. 1999).
+
+66. Landes and Posner, note 6 above.
+
+67. 531 U.S. 457 (2001).
+
+68. 42 U.S.C. § 7409(b)(1).
+
+69. 531 U.S. at 492 (concurring opinion).
+
+70. 127 S. Ct. 1955 (2007).
+
+71. Id. at 1965–1966.
+
+72. 355 U.S. 41, 45–46 (1957).
+
+73. 127 S. Ct. at 1967.
+
+74. Id. at 1967 n. 6.
+
+75. For example, in Loubser v. Thacker, 440 F.3d 439, 442–443 (7th Cir. 2006), the court remarked that “although conspiracy is not something that Rule 9(b) of the Federal Rules of Civil Procedure requires be proved with particularity, and so a plain and short statement will do, it differs from other claims in having a degree of vagueness that makes a bare claim of ‘conspiracy’ wholly uninformative to the defendant. Federal pleading entitles a defendant to notice of the plaintiff’s claim so that he can prepare responsive pleadings. That is why courts require the plaintiff to allege the parties, the general purpose, and the approximate date of the conspiracy” (citations omitted).
+
+76. 127 S. Ct. 2705 (2007).
+
+77. 220 U.S. 373 (1911).
+
+78. Richard A. Posner, Antitrust Law 171–189 (2d ed. 2001).
+
+
+
+
+
+2
+
+
+
+
+
+The Judge as Labor-Market Participant
+
+
+
+
+
+Nine overlapping, incomplete, but insightful theories of judicial behavior make for an unwieldy analytic apparatus. They can be integrated by conceiving of the judge as a worker, and thus a participant in a labor market—a rather unusual labor market, to be sure, but a labor market nevertheless.
+
+A market is two-sided—buyers and sellers. A labor market consists on the buying side of a set of employers who want to hire workers for a particular type of job and on the selling side of a set of workers who prefer that type of job to the alternatives open to them. In the federal court system, the President, with the approval of the Senate, hires persons to resolve the class of disputes that Article III of the Constitution places within the judicial power of the United States, mainly cases arising under federal law and cases between citizens of different states even if they do not arise under federal law. The appointing authorities have dual goals that are in tension. First, they want to appoint “good” judges, in the sense of judges who will enforce the legal norms found in the Constitution and federal statutes impartially, free from political interference by the appointing authorities. Not only is an independent judiciary a considerable social and economic good1 (though not always indispensable to rapid economic growth—witness China2), but it is recognized as such by the dominant groups in our society. And it is not merely a diffuse social and economic value, which might not be perceived clearly by the general public; it benefits the nonjudicial branches of government, and thus the politicians, by providing stability to political settlements.3 Judicial independence is therefore most likely to be valued when political competition is intense, as it is in the United States, because “by establishing an independent court, politicians currently in office make it more difficult for successors to alter the policies passed today.”4 Like Ulysses tied to the mast, independent judges do not hear (or at least hear more faintly) the siren song of the current political incumbents calling on them to unmake the constitutional and legislative deals of previous generations of politicians.5
+
+But second, the appointing authorities want the judges to tilt in favor of the political goals of the Administration (or of the Senate majority, when it is not in the control of the President’s party and refuses easy confirmation of his nominees). The political actors know, consistent with the attitudinal theory of judicial behavior, that federal judges have a large measure of discretion. This implies latitude to decide many cases in favor of the policies advocated by either of the political parties without being regarded as usurpative. Once appointed, however, a federal judge, being well insulated from both carrots and sticks, has no incentive to decide cases in such a way as to advance anyone’s political goals besides his own—if he has such goals. He does not have to flaunt his political leanings even if they coincide with those of his appointers, because once he is appointed, the President who nominated him and the Senators who confirmed him can do nothing to help or hurt his career. The exception is judges who are avid for promotion (and these, I shall argue, are relatively few), but their best way of signaling fealty is by their decisions; talk is cheap.
+
+Promotion seekers to one side, the best the appointing authorities can do to advance their political goals is to appoint judges who share those goals yet, because they can be expected to confine their political judging to cases in the open area (and perhaps their judging will be “political” in only the broadest sense), are not so political that they will be incompetent judges. This appointment policy preserves the independence of the judiciary but does not eliminate, and in fact confirms, the existence of a political component in judging.
+
+So we know what the buying side of the labor market is looking for and we must now consider what the would-be sellers of judicial labor—the judicial candidates themselves, especially those who succeed in becoming judges—are looking for. They want to be paid a salary for serving as a judge of course. But money is not the principal motivator, as they could command a higher salary in a law practice or even in teaching law. (The judicial wage is held down by monopsony, as explained in chapter 6.) One of the nonpecuniary compensations of a judgeship, for those whose next most attractive alternative would be private practice, is not having clients to kowtow to. Another—the obverse of that unattractive feature of private practice—is being kowtowed to by the lawyers who appear before the judge. Deference is a significant nonpecuniary reward of a judgeship.
+
+Power is one of the sources of the deference that judges receive, though legalists wish it otherwise—for they think that judges should be either transmitters of decisions made elsewhere in the political system or solvers of puzzles. The public executioner has no power because he has no discretion. But power is not the only source of the deference that judges receive; for they, and the legal profession generally, have had some success in “selling” judges to the general public as the very incarnation of the rule of law. So judges are respected. Power is also an independent source of job satisfaction. Many people enjoy exercising power over other people—man is a hierarchical species, like other primates.
+
+Most people who seek or accept a judgeship derive more utility from leisure and public recognition, relative to income, and are more risk averse, than the average practicing lawyer. For despite much self-serving complaining about heavy judicial workloads (judges have been complaining since judicial workloads were much lighter, giving the current complaints a crying-wolf quality), judges having a taste for leisure can indulge their taste more easily than they could as practicing lawyers. A federal judge cannot, as a practical matter, be fired, short of engaging in conduct gross enough to provoke impeachment by the House of Representatives and conviction by the Senate; his salary cannot be reduced (although it can be eroded by inflation—see chapter 6); and the retirement benefits are outstanding. A federal judge is entitled to retire at full pay at age 65 with only 15 years of service. If he prefers, he can take “senior status” rather than retire, and continue working indefinitely full-time or part-time, at his option, still at full pay.
+
+There are only about 800 Article III judges (district judges, circuit judges, and Supreme Court Justices, as distinct from lesser federal judicial officers, such as magistrate judges, bankruptcy judges, and countless administrative law judges)—about 1,200 if senior judges are included—out of a total of about a million lawyers in the United States. Because of their small number, and because they are engaged in conducting highly visible public business, Article III judges tend to be more prominent than even very successful practicing lawyers. Many of them achieve a celebrity status—albeit a very minor one, usually limited to the legal community and often just to the local legal community, except of course in the case of Supreme Court Justices—denied to their practitioner peers.
+
+Since no one is forced to become a judge and the job is not to everyone’s liking, there is self-selection—itself reflecting the play of incentives and constraints on behavior—into the judiciary. And so it is plausible that judges actually do have the tastes that I have just listed, and in addition that they have a taste for being a good judge. This is an intrinsic satisfaction but it is validated and reinforced by a judge’s reputation in the judicial and the broader legal community, and sometimes in other communities as well, such as the academic and political communities, and in the media. Most candidates for a federal judgeship have good enough job alternatives that they would not seek or accept a judgeship unless they thought it an important job, one to be taken seriously and performed conscientiously. Although politics almost always plays a role, and often a decisive one, in a judicial appointment, the elaborate screening of candidates by the FBI, the White House, interest groups, and the Senate Judiciary Committee tends to filter out irresponsible candidates. It might be different if the judicial salary were much higher, however, an issue that I discuss in chapter 6.
+
+To regard oneself and be regarded by others, especially one’s peers, as a good judge requires conformity to the accepted norms of judging. One cannot be regarded as a good judge if one takes bribes, decides cases by flipping a coin, falls asleep in the courtroom, ignores legal doctrine, cannot make up one’s mind, bases decisions on the personal attractiveness or unattractiveness of the litigants or their lawyers, or decides cases on the basis of “politics” (depending on how that slippery word is defined). Virtually all judges would be distressed to be regarded as politicians in robes, because if they thought of themselves in that light they could not regard themselves as being good judges, and this would deny them a major satisfaction of a judgeship and might well drive them into practice, teaching, or some other nonjudicial vocation.
+
+The hypothesis that judges are motivated by a desire to be good workers is supported by the superficially puzzling existence of a judicial work ethic. The judicial utility function is missing many of the arguments of other workers’ utility functions, but one that remains, as we know, is leisure. In the age of the law clerk (federal district judges are entitled to two law clerks, court of appeals judges to three, and Supreme Court Justices to four, and these numbers can sometimes be exceeded through bureaucratic maneuvers6), the opportunities for a leisured judicial life, especially at the appellate level, are abundant. Yet most federal judges work pretty hard, often well past the age at which they could retire at full pay—so if they continue to work, they are working for nothing.7 Many work very hard indeed—too hard, in a few instances; think of Harry Blackmun. What are they working hard for? Some work for celebrity, but most, below the level of the Supreme Court, are content to labor in obscurity. They are laboring to be good judges. Why else would they be working hard? They derive other satisfactions from being a judge, as I have said, such as wielding power, but the enjoyment of them does not require working hard.
+
+There is a parallel between the utility function of judges and that of serious artists, another unusual category of labor-market participants. Serious artists want a good income and some leisure, but they are not income or leisure maximizers. The intrinsic satisfaction of their work (which may be felt by them as compulsion or obsession) is a major argument in their utility function. But bound up with that in most cases is a desire to be able to regard themselves and be regarded by others as good artists. Most judges similarly derive considerable intrinsic satisfaction from their work and want to be able to regard themselves and be regarded by others8 as good judges. (The nonpecuniary rewards of judging are, as we shall see in chapter 6, a neglected factor in the movement to raise federal judicial salaries.) A difference between the judge and the artist, however, is that the judge exercises power, and with power comes responsibility; conscience should be a stronger motivator of the judge than of the artist. Another difference is that appellate judging is a collaborative enterprise. But we must not exaggerate this difference, for much artistic creation is collaborative too—think of drama, architecture, operas, musicals, films, the ateliers of the great Renaissance painters, and the jointly authored plays of Shakespeare’s time.
+
+Artists combine craftsmanship with creativity. But so do judges, displaying craftsmanship in the legalist phase of decision making and creativity in the legislative phase (the phase in which judges exercise discretion to make law, as distinct from passively applying preexisting law), and in both phases working through a legal problem or series of legal problems and wrapping the solutions in a rhetorical package pleasing to their colleagues as their primary audience but also, they hope, to a broader audience as well.
+
+“The mixture of disciplined structure and imaginative freedom, the reworking of traditions into a new idea, the ruthless elimination of dull, incongruous or surplus materials, and the creation of a dramatic narrative . . . —not to mention patience, stamina, and attentiveness”—is said to be what gardening and novel writing have in common,9 but it can serve as a description of judicial opinion writing as well. Novelists and judges further resemble each other in being to a great extent intuitive reasoners, in the sense (discussed at length in chapter 4) that much of their creative thinking is unconscious. A novelist writes a passage one way rather than another because it feels right; he may be unable to explain why it feels right. A judge often has a strong sense of which way a case should be decided, but when he tries to explain the decision in a judicial opinion the explanation will often turn out to be a rationalization of a result reached on inarticulable grounds, though sometimes the effort to explain will operate to refine and perhaps reverse the intuition that drove his vote.
+
+Norms govern the various art genres, just as norms govern judicial decisions—and in both cases the norms are contestable. Manet could not paint as well, in the conventional sense, as his teacher, Couture; but in the fullness of time Manet became regarded as much the greater painter. Holmes, Brandeis, Cardozo, and Hand are examples of judges who succeeded by their example in altering the norms of opinion writing.
+
+The comparison of judge and artist is more apt with respect to intermediate appellate judges than with respect to district judges (whose principal product is not the written opinion) or Supreme Court Justices. Justices have great power, though it is diluted by the fact that they hear and decide cases in a panel of nine. Intermediate appellate judges have some power, clearly over the litigants in the cases they decide but also over the development of the law (and thus over society at large). And their power is growing as the ratio of Supreme Court to court of appeals decisions falls,10 although it remains far less than the Justices’ power. The federal courts of appeals publish more than 100 times the number of opinions as the Supreme Court, but even if the average court of appeals opinion were one-hundredth as consequential as the average Supreme Court opinion (the percentage is surely lower), the average judge of those courts would have much less power than a Supreme Court Justice because the power of the courts of appeals is divided up among many more judges; there are more than 20 times as many court of appeals judges as there are Supreme Court Justices. Very few such judges besides Learned Hand have had the impact on the law that the average Justice has had, even though the average quality of Supreme Court Justices is only moderately greater than that of court of appeals judges; it is held down by the highly politicized character of the Supreme Court appointment process. Some federal court of appeals judges, such as Learned Hand and Henry Friendly, have been far abler than the average Supreme Court Justice (let alone the lower-quality Justices), but have been far less powerful, at least when weighted by years of judicial service. (Some Supreme Court Justices have served only briefly.) To those federal appellate judges can be added such state supreme court judges as Roger Traynor, Benjamin Kaplan, and Hans Linde, and of course Benjamin Cardozo and Lemuel Shaw—and Holmes when he was Chief Justice of the Supreme Judicial Court of Massachusetts.
+
+What the intermediate appellate judges have, if they are good, is influence over the development of law, just as good writers influence the development of literature. The two professions further resemble each other in the rhetorical cast of their written product (so different from that of a scientific article) and even in the presence of a political dimension, for there is that in literature too. We do not think of imaginative literature as political, but some of it is (though that is not all it is). Think of the politically inflected poetry of such great poets as Eliot and Yeats, and before them of Dante, Shakespeare, Milton, Pope, and Shelley, among countless others, and of novelists ranging from Swift and Dickens to Hemingway and Orwell.
+
+Rapid norm shifts are possible in both art and judging, because the products of these activities cannot be evaluated objectively. There are no crucial experiments, decisive observations, verifiable predictions, or rigorously logical processes for adjudging either a literary work or a judicial opinion great—nothing but the test of time. That is a clue to why recognition that judges are strongly motivated to be good judges does not undermine the attitudinal theory as long as the theorist avoids too narrow a view of the “political” (confining it to the activities and expressed beliefs of politicians and parties) and too crabbed a concept of “the law” as leaving out everything that legalists exclude from the concept. Because the norms of judging are unsettled, two judges can be equally celebrated even though the major decisions of one are better explained by ideology and those of the other by traditional legal craft norms.
+
+I do not mean to romanticize judging by comparing it to creative writing. The judge’s assured income is a major difference between him and the creative writer, and offers him a leisure-labor trade-off unavailable to most creative writers. Less able judges (and there is great variance in judges’ ability because judicial appointments often are based on political criteria rather than on merit) can be expected to substitute leisure for work because they can delegate much of their work to law clerks but would face high costs of obtaining distinction by working harder. Abler judges face lower costs in the mental effort exerted and leisure forgone of obtaining distinction by hard work and so they can be expected to work harder. The result is a tendency for two tiers of judges to emerge—leaders and followers. Of course, there are journeyman artists as well as journeyman judges, but they work as hard as the masters, which is less true of their judicial counterparts.
+
+A critical difference between the novelist and the judge might appear to be that the former is an independent contractor, rather than an employee of his publisher, while the judge is an employee. But by virtue of judicial independence, the judge (especially a federal judge) is more like an independent contractor than an employee. Not completely, of course; he is salaried; his decisions can be reversed; in extreme cases he can be removed from office. But he has much greater autonomy than an ordinary employee—or even an ordinary independent contractor.
+
+A second critical difference might appear to be that the novelist does not violate the norms of his art by having a political slant or otherwise rejecting the slogan “art for art’s sake,” but that a judge is supposed to be completely disinterested. How could a judge think himself a good judge if he thought his decisions seasoned with politics or personality? One answer is that he might be sophisticated enough to realize that this just is the nature of American judging. But a more interesting answer is that the nonlegalist influences on a judge are likely to operate subliminally.
+
+The second answer can be explored with the aid of Bayesian decision theory. A judge in a nonjury proceeding who has to decide whether to believe a witness’s testimony will often have formed before the witness begins to testify an estimate of the likelihood that the testimony will be truthful. The estimate might be based on previous experience with witnesses in similar cases (perhaps experience that the judge acquired as a practicing lawyer), on a general sense of the honesty of the class of persons to which the witness belongs, or even on the witness’s manner of striding to the witness box and swearing to tell the truth and the posture he assumes in the stand. This pre-inquiry estimate is what is called a “prior probability,” or just a “prior.” The judge might well be unconscious of his having such a prior, and he would be most unlikely to express it in quantitative terms. But it would be there, and it would affect his “posterior probability”—that is, the probability that he would assign to the witness’s having testified truthfully after the witness had testified and been cross-examined and after any evidence bearing on his truthfulness had been presented. Each bit of information the judge received that bore on that truthfulness would be likely to alter his prior probability, but not erase it; the prior probability would affect the posterior probability, as in Ω(H|x) = p(x|H)/p(x|~H) × Ω(H), the simplest version of Bayes’s theorem.
+
+Ω is odds; the left-hand side of the equation is the posterior odds that some hypothesis, H, is true; the last term on the right-hand side of the equation, Ω(H), is the prior odds; x is the new information obtained in the course of the inquiry; p is probability, and p(x|H)/p(x|~H), the first term on the right-hand side of the equation, is the ratio of the probability that x would have been observed if H was true to the probability that x would have been observed even if H was false (~H). (So if those two probabilities were the same, the new information would not alter the odds; it would be a case of multiplication by 1.) Suppose the hypothesis is that the witness—let us say the plaintiff in a sex discrimination suit—is testifying truthfully, and that before she begins to testify the judge sets (almost certainly unconsciously) the odds that she will be telling the truth at 1 to 3, which is equivalent to a probability of 25 percent (1 out of [1 + 3]). She testifies, producing new information, x. Suppose the probability that x would be observed if she was telling the truth is .6, while the probability that it would be observed if she was not telling the truth is .3, so that the ratio of the two probabilities is 2. When this “likelihood ratio” is multiplied by the prior odds of 1 to 3, the result is posterior odds of 2 to 3 (1:3 × 2 = 2:3), which is equivalent to a 40 percent probability (2 out of 5) that the witness is telling the truth.
+
+This is a subjective probability, personal to the particular judge. Another judge might have had different prior odds, resulting in different posterior odds even if both judges would assess the same information (x) the same way. They might of course assess it differently, for the same reason that their priors were different—because they had different “cognitive structure[s] of organized prior knowledge,”11 based on such things as temperament, personal background characteristics (such as race or sex), life experiences, and ideology; and ideology might in turn be shaped by temperament and other factors discussed in chapter 4.
+
+Suppose the second judge would have set the prior odds at 2 to 1 rather than 1 to 3. Then the posterior odds would be 4 to 1—that is, the judge would think there was an 80 percent probability that the witness was telling the truth. With the judge being the trier of fact (remember that I am speaking of nonjury proceedings) and thus the decider of witnesses’ credibility, the difference in subjective probabilities between the two judges might well spell the difference between the plaintiff’s winning and losing her case.
+
+Bayesian theory is a way of systematizing the elementary point that preconceptions play a role in rational thought. It is not only impossible as a psychological matter to purge ourselves of them, but it would be irrational to do so, since preconceptions impound information, though it is not always accurate. “Preconception” has a pejorative connotation, which is why I prefer to speak of Bayesian priors. They differ across persons because different persons have different information and also process it differently to form their beliefs.
+
+I used the example of a sex discrimination suit because it is the kind of suit in which judges’ priors are likely to differ along political lines or along racial, religious, or gender lines that are correlated with (and often influence) political leanings, or because of different personal or professional experiences or differences in personality. And these attributes might converge to form a general cast of mind that would in turn generate the specific preconceptions that a judge brings to a case. Our perceptions are produced by the interaction between sensory impressions—the impact of the external world on the organs of sense—and a classificatory apparatus in the brain. In Kant’s epistemology sensory impressions are made intelligible by being subjected to mind-generated categories such as causation and time. In Friedrich Hayek’s epistemology an individual’s classificatory apparatus is the product of idiosyncratic factors of personality and culture rather than just of basic hardwired features of the brain. (Presumably, as Kant in effect argued, the capacity to perceive two events as cause and effect is hardwired.) The apparatus not only differs among individuals but can be altered by experience, which obviously varies from individual to individual. In other words, people see (literally and figuratively) things differently, and the way in which they see things changes in response to changes in the environment.12 That is true of judges. As Cardozo said, “We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.”13 I assumed that judges’ priors are unconscious in order to illustrate how, acting in perfectly good faith, with no sense that they are being influenced by their political leanings, judges may nevertheless behave in conformity with the expectations of the attitudinal theorists. Bayesian theory reconciles judges’ behavior (how they vote in cases) with their conscious thinking.
+
+An example of the operation of the theory in judicial decision making is that judges are more likely to convict a criminal defendant than juries are.14 Through long experience with the criminal justice system, judges learn that prosecutors rarely file cases unless the evidence against the defendant is overwhelming. Prosecutors’ resources are very limited relative to the incidence of crime, and so they concentrate on cases in which guilt is clear (as such cases are easier to win without a heavy investment of prosecutorial resources), which are plentiful.
+
+Preconceptions matter even when the only thing the judge is doing is finding facts. That was my example of Bayesian decision making15 and it is consistent with the evidence cited in chapter 1 that district judges as well as appellate judges engage in political judging. The latitude that a trial judge has in making factual determinations is sometimes referred to as “fact discretion,” but that is a misleading term. It makes it seem as if the judge has a free choice whether to believe or disbelieve a witness, as he would if he were deciding whether to start a trial at 9:00 A.M. or 10:00 A.M., or even whether to accept or reject a legal proposition asserted by a court in another jurisdiction and hence not binding on him. One would like to think that belief in whether a witness is telling the truth is driven by whether he is telling the truth. It isn’t always. But when it isn’t, this is because of the difficulty of distinguishing between truth and falsity rather than because the judge has an option to believe or disbelieve as he wishes. You cannot will belief.
+
+Five phenomena that could be regarded as instances of bias in the finding of facts in a trial setting can be distinguished.
+
+1. Conscious falsification. This is rare in our system. If, as I believe, judges try to be good judges, they will not deliberately falsify the facts because that would be a serious violation of anyone’s idea of what a good judge does. What is true, however, is that at the appellate level judges have a tendency to report the facts in their opinion in such a way as to make them fit the legal conclusion smoothly or shape the precedent that the decision will create. The scope of a precedent is inferred by reading the court’s analysis in light of the facts recited in its opinion. A judge may decide to omit from his opinion a fact that he considers irrelevant even though a layperson might think it important to a complete picture of the factual situation out of which the case arose, because the judge does not want the court in a subsequent case to distinguish his case on the basis of that fact.
+
+2. Priors shaped by experience, temperament, ideology, or other personal, nonlegalist factors. These are ubiquitous and uneliminable. No one can ignore all his priors in making a decision. That would mean trying to think in a vacuum. If an arresting officer says one thing and the person he arrested says the opposite, the judge’s decision as to which one to believe is likely to be influenced by the judge’s background. Was he a prosecutor before he became a judge? A defense lawyer? What experiences has he or members of his family or friends had with police or prosecutors, or for that matter with criminals? Not that these experiences, which may be unrepresentative, are always reliable. But if they are the best data that the judge has to go on, maybe because the other indicators of the witness’s credibility are hopelessly inconclusive, it is rational and probably inevitable that he should rely on them as a tiebreaker.
+
+3. Cognitive illusions. Although there are various institutional mechanisms for minimizing the effect of cognitive illusions (such as hindsight bias) on fact-finding by judges (as by jurors), they are far from completely effective.16
+
+4. Priors shaped by irrelevant reactions, such as dislike of a lawyer or disapproval of a party’s religion or lifestyle—reactions that have no proper place in judicial decision making. This kind of thing is not too common in our system, for the same reason that deliberate falsification of facts is uncommon. An important rule of the judicial “game”—the game you have to play if you want to be considered a good judge—is judging “without respect to persons,” as the judicial oath has it. Reasonably self-disciplined people can set such reactions to one side when making a decision. But that is not true with respect to one’s rational pre-conceptions—nor would we want it to be true.
+
+Because it usually is impossible to compare the findings made by a judge or jury with the “true” facts bearing on the parties’ dispute, it usually is impossible to determine which judges’ priors are more accurate. So the appointing authorities tend to appoint judges whose priors resemble their own.
+
+5. Twisting the facts to minimize the likelihood of being reversed. Appellate review of findings of fact is supposed to be and generally is deferential, while review of abstract propositions of law is plenary. That is, no deference is given to the trial judge’s rulings on “pure” issues of law, as distinct not only from findings of fact but also from the application of legal doctrine to facts, as when the issue is whether the defendant was negligent. Since judges do not like to be reversed, both for career reasons (in the case of judges who aspire to promotion to the court of appeals) and for power reasons (reversal nullifies their decision), also for reasons of amour propre, trial judges are sometimes tempted to bend the facts so that they fit snugly into an uncontroversial legal category. For the reasons mentioned above, judges are unlikely to do this consciously, but it is undoubtedly an unconscious tendency.
+
+“Reversal aversion” creates a conflict for judges between role expectations and personal feelings. Suppose the best reading of the precedents is that a decision for the plaintiff will be affirmed, but a careful “nose count” suggests that the current appellate judges, who are known to have different views from the judges who created the precedents, will reverse a decision for the plaintiff. Reversal aversion will push the judge toward deciding for the defendant. But role expectation will push him the other way. He is supposed to decide cases in accordance with “the law,” and the law, as the word is usually understood, does not change when new judges are appointed, but only when their votes in a case change it.
+
+This point illustrates the complexity of the judicial utility function. The judge wants to be a good judge and thus decide cases in accordance with the law. He also does not want to be reversed. The balance is pretty even in the case just described. On the one hand the nose-counting judge is not offending deeply against the law, but on the other hand reversal aversion is rarely a very powerful motivator since a reversal usually imposes only a small cost on the judge who is reversed.
+
+An important task of trial judges is sentencing criminal defendants. Anyone who doubts the pervasiveness of judicial discretion, and hence the limitations of legalism as a description of what judges do, should think back to the extraordinary variance in federal sentences that prevailed before the promulgation of the federal sentencing guidelines and that is beginning to creep back into the sentencing process as a result of the Supreme Court’s demotion, in the Booker decision that I discuss in chapter 10, of the guidelines from mandatory to advisory status. Before the guidelines, the determinants of how severely to punish a convicted defendant within the usually broad limits fixed by Congress had almost nothing to do with legal analysis; they depended, rather, on the judge’s attitudes toward such large, contested, broadly ideological issues as personal versus social responsibility for misconduct, the morality of retribution, the feasibility of rehabilitation, and the deterrent effects of criminal punishment. No common law of federal sentencing had evolved to guide judges in deciding on a sentence within the statutory range. That decision had been left to the unchanneled discretion of the individual district judge.
+
+Yet the concern that motivated the creation of the guidelines was the variance in sentences under the system of discretionary sentencing (given the differences in priors across judges) rather than a sense that the system was “lawless” because it conferred so much discretion on judges. Even legalists are quite willing to see a class of rulings denominated “discretionary,” though logically such thinkers should consider discretionary rulings, and hence pre-guidelines criminal sentencing, lawless. Legalists have accepted what by their standards are lawless pockets in the law—some huge, such as pre-guidelines sentencing—because they would rather shrink the domain of the law than to subject fuzzy areas of the law to loose standards. In doing this, they unintentionally expand the influence of judges’ preconceptions on judicial decisions by expanding the scope of judicial discretion.
+
+What weight should we give to the fact that many, maybe most, judges would if asked deny that they bring preconceptions to their cases?17 Very little. That denial would reflect in some instances a lack of self-awareness and in others the rhetorical pull, or more bluntly the propaganda value, of the legalist model of judging. Judges want to deny the role of subjectivity in judicial decision making lest they undermine their claim to be a deservedly independent branch of government in which reason rules, obviating a need for political or other external constraints on the exercise of discretion. They want to convince people that they wear blinders that keep them from straying off the beaten path; that they are society’s dray horses. They also want to duck blame for unpopular decisions (“the law made me do it”). So they say—you will find this in almost every case involving the interpretation of a statute—that in interpreting statutes judges “start with the words of the statute” and usually end there, thus avoiding the treacherous shoals of purpose and policy, for in interpreting they are merely manipulating words (verbal symbols), like mathematicians. Actually they start with the name of the statute, or some general sense of what it is about, perhaps recollected from previous cases; or with the often tendentiously cropped excerpts from the statute quoted to them by the lawyers; or with the spin that the lawyers place on the statute’s words. There is always a context to reading, and it is given in advance of the encounter with the words themselves and shapes the reader’s interpretation.
+
+That judges are Bayesians18 is not the only reason their decisions in nonroutine cases often conform to the attitudinal model even when the judges are wholeheartedly committed to the judicial norm of apolitical adjudication. Another reason is the motivations of the people who hire judges, the President and the members of the Senate. (For remember that like any labor market, the judicial labor market is two-sided.) They want, I said earlier, a judge who will be competent but also will decide cases in the open area in conformity with the President’s and the Senators’ political preferences. So, apart from the play of unconscious influences, we cannot expect federal judges to be complete political eunuchs, their decisions never influenced by politics because they have no politics. Such political neuters are unlikely to be appointed.
+
+But I remind the reader that partisan politics is not the only politics; and politics shades into ideology, which in turn shades into common sense, moral insight, notions of sound policy, and other common and ineradicable elements of judicial decision making. Politics in these extended senses is the core of the attitudinal model, sensibly construed; the party of the President who appointed the judge is merely a crude proxy for ideology. Nor can the independent interests of the Senators who must confirm the President’s nominees be neglected, even when the Senators belong to the same party as the President; for they have a tendency to place patronage above ideology as a judicial qualification.19
+
+But even with the model thus qualified, judicial decisions cannot be expected to conform to it perfectly, and in many cases not even closely. Political inclinations, even in the loosest sense of “political,” are not the only things that determine a judge’s priors. A judge’s personal background characteristics, such as race and sex, and his personal and professional experiences are among the nonpolitical, nonlegalist factors that have been found to influence his decisions.20 A judge might, for example, tend to decide for the government in close cases regardless of what policy the government (local, state, or federal) is trying to enforce in the case before him. Maybe he had worked for the Justice Department in his youth, had been impressed by the competence and disinterest of the department’s staff, and had taken away from the experience a warm glow that continues to influence his thinking, all unconsciously. But this example illustrates the difficulty of disentangling the factors that influence judges. For the judge’s progovernment leaning may have been what made him go to work for the Justice Department in the first place, rather than being the consequence of that work.
+
+To take another example, judges whose background is law teaching rather than private practice tend to be harder on the lawyers who appear before them because such judges have less insight into the constraints on a lawyer’s performance that are imposed by time, money, and client pressures than do judges who come out of private practice. The less forgiving attitude of the ex-academic may affect the strictness with which he enforces deadlines and other procedural rules as well as his attitude toward sanctioning lawyers for mistakes.
+
+Appellate judges promoted from the trial court may be more likely than other appellate judges to vote to affirm a trial judge. They are more sensitive to the advantages that the trial judge has over the appellate court in gaining a deep understanding of a case—especially a case that is actually tried, for then the trial judge will have spent much more time on it than the appellate judges who review his ruling. In addition, having become accustomed to resolving cases without too much concern for creating a bad precedent (the decisions of trial courts are not precedents—that is, they are not authority for deciding a similar case the same way in the future), a former trial judge promoted to the court of appeals may be more likely to focus more on the “equities” of the individual case—the aspects of the case that tug at the heartstrings—and less on its precedential significance than would his colleagues who had never been trial judges.
+
+Personal characteristics not only differ from political leanings but also can work at cross-purposes with, and sometimes overcome, them. Hence the conservative woman who votes for the plaintiff in a sex discrimination suit, the conservative black Republican who favors aggressive enforcement of the Voting Rights Act, and the liberal former prosecutor who sides with the government in criminal cases.
+
+Another reason suggested by Bayesian theory for not expecting judicial behavior to conform perfectly to the attitudinal model even in the open area of judging is that judges differ with respect to the strength of their priors. Judges we call “detached” operate with weaker priors than other judges, whether because of intellectual insecurity and a resulting lack of conviction, a skeptical outlook, or a cool temperament. Learned Hand was a skeptic with a “hot” temper; Holmes a “cool,” some think a rather glacial, skeptic—someone who gazed at his fellow human beings through the wrong end of the telescope and saw an anthill. Skepticism might seem paradoxical: how can one be confident about not being confident; equivalently, how can a skeptic fail to be skeptical about skepticism? But the paradox is a challenge only to philosophical skepticism.21 One can be skeptical about particular claims without being skeptical in general—without doubting, for example, that there is an external world.
+
+That personal background and previous experiences (often correlated—a woman is more likely to have had the experience of being discriminated against on the basis of sex than a man) have an effect on judicial decisions that is independent of politics even in the broadest sense22 underscores the breadth of judicial discretion arising from the limited guidance that rules or norms of judging provide. Personal background and experience are unreliable grounds for many of the determinations that judges have to make. That a judge is a woman and has had experiences typical of women is a very small part of the information required to decide a sex discrimination case involving a different woman in different circumstances. So the fact that gender, like other personal factors, has been found to play a significant role (even after correction for correlated factors such as ideology) in judicial decisions suggests that often judges lack good information about the merits of a case they have to decide and so are forced to grasp at straws. This injects a disquieting amount of randomness into the judicial process. But the difference between male and female responses to discrimination cases need not reflect prejudice; few judges would consciously allow their judgment to be affected by whether they are of the same sex, race, or religion of a litigant or lawyer—that would be a gross violation of the rules of the judicial game. The difference in response is the unavoidable consequence of having to rely on personal experiences to decide a case where there is nothing better to go on.
+
+The point that underlies these examples is that the weaker the incentives and constraints that influence a worker’s performance, the wider the range of influences on that performance, especially in the presence of uncertainty, which indeed is one of the things that makes those incentives and constraints bear only weakly on judicial decision making. Yet the existence of a wide range of influences on job performance is not inconsistent with a person’s being a good, a loyal, worker. Often in private firms as well as in public institutions some employees will have a great deal of leeway in performing their jobs—and everyone is at the mercy, to some degree, of his preconceptions. But employees of a commercial firm have less discretion than judges. Their performance is easier to evaluate because there is less uncertainty about its quality. For their employer has a financial bottom line and has only to determine (not that that is always easy) the employee’s contribution to it. A firm also has tools that have been withheld from the judges’ employer for shaping its workers’ behavior, even if they belong to a union (as few workers do these days, however).
+
+A corollary is that we can expect greater variance in skills, effort, and other dimensions of performance among judges than among executives of firms. Even if the screening of judicial aspirants were not influenced by politics, and even though the screened judicial candidate is bound to have a longer work history than a young new hire in a commercial firm, the federal judge’s freedom from the usual external constraints, coupled with the difficulty of objectively evaluating judicial performance, results in greater variance in the performance of judges than in most private-sector employment.
+
+There is another difference between judges and other workers. Most organizations follow the practice of “management by exception.” Routine matters are handled by the workers at the bottom of the organization, but when a nonroutine matter arises the first-line worker refers it to his immediate supervisor, who may in turn, if it exceeds his ability to resolve it, refer it to his supervisor, and so on up. In this way the employer economizes on the cost of skilled labor. The judiciary is hierarchical too, but judges at all levels handle both routine and nonroutine matters. The routine cases are those that can be decided by legalist techniques. When cases can be so decided, judges are committed to using those techniques and usually do so. Oddly, perhaps, nothing in their training equips them to deal with the nonroutine cases. The reason may be a desire by the judicial establishment to maintain the pretense that judges just do legalist analysis, that they are entirely rule-bound. But the result is to leave them not only at large but at sea when confronted with a case that cannot be decided by such analysis.
+
+It might seem that leisure preference would lead judges to decide as many cases as possible (or more!) by legalist techniques. Not only are those the techniques the judge knows best and is most comfortable with; but by excluding from the decision-making process a range of often recalcitrant material (such as legislative history, public policy, and the consequences of his decision), legalism demands less of the judge in the way of research. The other side of this coin, however, is that a judgment based on nonlegalist factors may require no research at all—may require no more than knowing who the parties are and which side of the case conforms to the judge’s untheorized concept of what is “just” or “fair.”
+
+This point suggests that judicial performance in the open area might be improved by training judges in economics. In areas such as antitrust, contract law, public utility and common carrier regulation, corporate, pension, and financial law, intellectual property, procedure and remedies, large swatches of environmental law, and smaller swatches of tort, criminal, and family law, the courts have adopted an economic approach to the resolution of those issues that are not governed by a rule sufficiently hard-edged to be applicable to the facts of a case without need to consider the social consequences of the decision. Questions such as how much unauthorized copying of copyrighted material should be permitted under the “fair use” doctrine; whether a manufacturer should be allowed to forbid his distributors to cut the resale price of his goods below a level specified by him (the issue in the Leegin case discussed in chapter 1); when “loyalty rebates” (end-of-year rebates to consumers who buy multiple lines of a seller’s products) should be considered anticompetitive; or whether an injured worker can recover damages even though his injury was caused by an “open and obvious” hazard cannot be answered by legalist techniques and should not be answered by untutored intuition. But they perhaps can be answered with a fair degree of objectivity by judges armed with basic economic skills and insights. Objectivity is one of the main aims of legalists. It can sometimes be achieved by methods other than those of legalism.
+
+
+1. A major theme in Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (2006). See also Daniel M. Klerman, “Legal Infrastructure, Judicial Independence, and Economic Development,” 19 Pacific McGeorge Global Business and Development Law Journal 427 (2007); Klerman and Paul G. Mahoney, “The Value of Judicial Independence: Evidence from Eighteenth Century England,” 7 American Law and Economics Review 1 (2005); Rafael La Porta et al., “Judicial Checks and Balances,” 112 Journal of Political Economy 445 (2004); Lars P. Feld and Stefan Voigt, “Economic Growth and Judicial Independence: Cross-Country Evidence Using a New Set of Indicators,” 19 European Journal of Political Economy 497 (2003).
+
+2. Dam, note 1 above, ch. 11. As Dam points out, however, only in poor countries may an independent judiciary not be indispensable to economic growth.
+
+3. William M. Landes and Richard A. Posner, “The Independent Judiciary in an Interest-Group Perspective,” 18 Journal of Law and Economics 875 (1975); Gary M. Anderson, William F. Shughart II, and Robert D. Tollison, “On the Incentives of Judges to Enforce Legislative Wealth Transfers,” 32 Journal of Law and Economics 215 (1989).
+
+4. F. Andrew Hanssen, “Is There a Politically Optimal Level of Judicial Independence?” 94 American Economic Review 712, 726 (2004). See also J. Mark Ramseyer, “The Puzzling (In)Dependence of Courts: A Comparative Approach,” 23 Journal of Legal Studies 721 (1994).
+
+5. “Although politicians in countries that keep courts off limits lower their ability to earn political points while in office, they limit their losses while out of office.” J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan 171 (2003).
+
+6. For example, federal court of appeals judges are allotted five “slots,” which they can use for any combination of law clerks and secretaries. Most of the judges used to have three law clerks and two secretaries, but with the automation of most secretarial work an increasing number of judges have four law clerks and one secretary. In addition, the courts of appeals now employ staff law clerks (sometimes called staff attorneys), who are not assigned to particular judges but are available to help them. Many judges also have interns and externs. And an increasing number of judges (mainly but not only district judges) have career law clerks, who sometimes function as assistant judges. In short, the federal courts are generously staffed.
+
+7. This is consistent with rational behavior and even with leisure preference. As David R. Stras, “The Incentives Approach to Judicial Retirement,” 90 Minnesota Law Review 1417 (2006), finds, most judges take senior status shortly after eligibility, so they continue judging but have more leisure—yet could have still more leisure by retiring, and without sacrificing pay.
+
+8. The importance to judges of the opinion in which they are held by others is emphasized in Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior, ch. 1 (2006).
+
+9. Hermione Lee, Edith Wharton 563 (2007).
+
+10. See chapter 10. Cf. Benjamin Kaplan, “Do Intermediate Appellate Courts Have a Law-making Function?” 70 Massachusetts Law Review 10 (1985).
+
+11. C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts 165 (1996).
+
+12. See Richard A. Posner, “Cognitive Theory as the Ground of Political Theory in Plato, Popper, Dewey, and Hayek,” in Cognition and Economics 253, 263–264 (Elisabeth Krecké, Carine Krecké, and Roger G. Koppl eds. 2007).
+
+13. Benjamin N. Cardozo, The Nature of the Judicial Process 13 (1921). See also Andrew J. Wistrich, Chris Guthrie, and Jeffrey J. Rachlinski, “Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding,” 153 University of Pennsylvania Law Review 1251 (2005).
+
+14. Theodore Eisenberg et al., “Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven and Zeisel’s The American Jury,” 2 Journal of Empirical Legal Studies 171 (2005).
+
+15. The scholarly literature on judicial fact-finding as a Bayesian process is extensive. See Richard A. Posner, Frontiers of Legal Theory, ch. 11 (2001), and references cited there.
+
+16. Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Inside the Judicial Mind,” 86 Cornell Law Review 777 (2001). See generally Heuristics and the Law (G. Gigerenzer and C. Engel eds. 2006).
+
+17. For a notable exception, see Henry J. Friendly, “Reactions of a Lawyer-Newly-Become-Judge,” in Friendly, Benchmarks 1, 14–21 (1967), though his term for preconceptions was “convictions,” by which he meant conscious rather than unconscious leanings.
+
+18. In a loose sense. I am not suggesting that they actually apply Bayes’s theorem (which most of them have never heard of) or that they typically have the information that would be required to apply it.
+
+19. See Micheal W. Giles, Virginia A. Hettinger, and Todd Peppers, “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” 54 Political Research Quarterly 623 (2001); Donald R. Songer, Reginald S. Sheehan, and Susan B. Haire, Continuity and Change on the United States Courts of Appeals 137 (2000).
+
+20. Besides references in chapter 1, see James J. Brudney, Sara Schiavoni, and Deborah J. Merritt, “Judicial Hostility toward Labor Unions? Applying the Social Background Model to a Celebrated Concern,” 60 Ohio State Law Journal 1675 (1999); Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, “Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning,” 73 New York University Law Review 1377, 1451–1465, 1470–1480 (1998).
+
+21. On which see M. F. Burnyeat, “Can the Skeptic Live His Skepticism?” in The Skeptical Tradition 117 (Myles Burnyeat ed. 1983); David Hume, An Enquiry concerning Human Understanding, § 12 (1748).
+
+22. As shown in Christina L. Boyd, Lee Epstein, and Andrew D. Martin, “Untangling the Causal Effects of Sex on Judging” (Northwestern University School of Law and Washington University School of Law and Department of Political Science, July 28, 2007), who carefully correct for ideological differences yet still find an independent effect of gender. See also David R. Songer, Sue Davis, and Susan Haire, “A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals,” 56 Journal of Politics 425 (1994).
+
+
+
+
+
+3
+
+
+
+
+
+The Judge as Occasional Legislator
+
+
+
+
+
+Judges’ motivations would be uninteresting were judges legalists in the extreme sense endorsed by John Roberts at his hearing for confirmation as Chief Justice. He said that a judge, even if he is a Justice of the Supreme Court, is merely an umpire calling balls and strikes.1 Roberts was updating for a sports-crazed era Alexander Hamilton’s description of a judge as the government official who, unlike an official of the executive or legislative branch of government, exercises judgment but not will,2 and Blackstone’s description of judges as the oracles of the law,3 implying (if taken literally) an even greater passivity than Hamilton’s and Roberts’s definitions.
+
+In offering the umpireal analogy, Roberts was trying to navigate the treacherous shoals of a Senate confirmation hearing. And having had a very successful career as an advocate—the batter, not the umpire—it was natural for him to exalt the former’s role. (When he became Chief Justice, his perspective quickly changed.) Neither he nor any other knowledgeable person actually believed or believes that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires. We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will. Suppose some umpires thought that pitchers were too powerful and so they decided that instead of three strikes and the batter is out it is six strikes and he’s out, but other umpires were very protective of pitchers and thought there were too many hits and therefore decreed that a batter would be allowed only one strike.
+
+There is a less obvious mistake in Roberts’s baseball analogy. Until recently, different umpires defined the strike zone differently, so that pitchers had to adjust their tactics to the particular umpire. The analogy is to the way in which different judges interpret the Constitution differently. The interpretive freedom of umpires was deemed intolerable, and beginning with the 2002 season Major League Baseball installed cameras (the Umpire Information System) to photograph all pitches so that it could be determined objectively whether umpires were calling balls and strikes according to a uniform standard. When the system detects a significant error rate on the part of an umpire, he is disciplined.4
+
+If the judiciary had a similar system for evaluating judicial decisions, Roberts’s analogy would be spot-on. But of course it does not. As is usually true of “reasoning by analogy,” what is interesting about the comparison between umpires and judges is not the similarities but the differences.
+
+Roberts knows that when legalist methods of judicial decision making fall short, judges draw on beliefs and intuitions that may have a political hue, though usually it is not a partisan one5 and a judge may be unaware that his decision is influenced by his political leanings. He will draw on these intuitions and beliefs in the legalistically indeterminate cases because the judicial imperative is to decide cases, with reasonable dispatch, as best one can. The judge cannot throw up his hands, or stew indefinitely, just because he is confronted with a case in which the orthodox materials of judicial decision making, honestly deployed, will not produce an acceptable result. They may not produce any result, as in a case in which two canons of statutory construction are applicable and they point to different results.
+
+“To decide” and “to conclude” are interestingly different modes of resolution. It would be odd to speak of a “duty to conclude” or “to reach a conclusion.” A decision is an action; a conclusion is a rumination; and in the distinction we can begin to sense the tension explored in chapter 8 between the judiciary and the academy.
+
+There are only a few exceptions to the imperative duty of judges to decide. The “political questions” doctrine is one.6 The nonreviewability of some administrative rulings where the reviewing court has no law to apply is another.7 And of course there are cases that are outside a court’s jurisdiction, so that, in effect, the only decision the court can make is a decision not to decide. But a case cannot be left undecided just because it is a toss-up from a legalist standpoint. A convicted defendant cannot be left unsentenced.
+
+A judge’s political preferences do not break the tie every time. Sometimes they are tempered by other concerns—not only case-specific ones but also such institutional concerns of a sort especially prized by legalists as the feasibility of a particular judicial intervention given the limited knowledge and powers of courts, or the effect on the law’s stability and a court’s standing of too cavalier a view of precedent and statutory text. The weaker the judge’s political preference for a particular outcome in a case, the stronger will be the tug of legalist considerations the other way.8 In this example, as in most routine cases, where legalist analysis promotes the valuable social good of legal predictability, legalism can be understood as a special case of legal pragmatism. It is even possible to imagine legal systems in which a thoroughgoing rather than an intermittent legalism might be the best pragmatic strategy.9 But even in our system it will sometimes be difficult to distinguish a pragmatist judge from a legalist one. Suppose the pragmatist sees enormous value in rules compared to standards. He will push for rules, and to the extent successful the push will increase the scope for legalism. From the outside he may look just like a legalist judge who thinks law is only law when it involves the application of clear rules. The analogy is to “rule utilitarians,” who believe that utility can often be more effectively promoted by means of rules that do not require a comparison of utilities than by trying to evaluate the effect on utility of every act.10
+
+Against Roberts’s umpireal analogy, therefore, I set the story of the three umpires asked to explain the epistemology of balls and strikes. The first umpire explains that he calls them as they are, the second that he calls them as he sees them, and the third that there are no balls or strikes until he calls them. The first umpire is the legalist. The second umpire is the pragmatic trial judge (as he sees them). The third is the appellate judge deciding cases in the open area. His activity is creation rather than discovery.
+
+Roberts may have made a tactical error. His confirmation did not turn on convincing Senators that a Supreme Court Justice is like a baseball umpire. In the spring of 2007, less than two years after his confirmation, he demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law. The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.
+
+Appellate judges are occasional legislators.11 In their legislative capacity they labor under constraints that do not bind the official legislators—rules of standing, for example, and limitations on whom judges may consult and more generally on what methods of inquiry they may employ. An important function of the esoteric (to nonlawyers) distinction between the holding of a case and its dicta (roughly, statements inessential to the outcome)—with only the former having precedential effect—is to limit judges’ legislative power by preventing them from promulgating, in the form of judicial opinions, treatises that would have the force of law.12 But judges also enjoy leeways that official legislators do not. Transaction costs are low (for there are many fewer judges on a panel, even in a supreme court, than there are members of a legislative body at the federal or state level) and constituent pressures usually nonexistent. When deciding constitutional cases Supreme Court Justices are like legislators in a system in which there is no judicial power to invalidate statutes and legislators once elected cannot be removed. And some of the constraints on judges actually are liberating: the fact that they cannot sit in cases in which they have a financial or personal stake enlarges their decisional freedom, just as not being answerable to an electorate does.
+
+Judges may have as many degrees of legislative freedom, albeit only in the subset of legalistically indeterminate cases, as formal legislators do, though unlike them judges cannot as a practical matter tell the government what to do—the lesson of regulatory decrees, for example those requiring school busing, now largely abandoned because judges have learned from painful experience that they do not have control of enough of the levers of power to be able to administer government programs effectively. Judges can tell the other branches of government only what not to do. Still, the legislative power that judges do have, though negative, is considerable, especially when the other branches are stopped in their tracks by the Supreme Court in the name of the Constitution, which is so difficult to amend.
+
+The desire of legislators for reelection, combined with the pressures that interest groups exert on electoral politics and legislative activity, goes some distance toward explaining their votes. But federal judges do not have to worry about election, reelection, fund-raising, interest groups, and the like. As a result, the springs of their behavior are mysterious, and we must go beyond the suggestions in the preceding chapters to unravel the mystery.
+
+Judges’ legislative power is usually thought to reach its zenith in common law fields. Since common law is explicitly judge created, one might think it would be bound to be even more “lawless” than constitutional adjudication. In fact it is more stable, more objective, more lawlike, and less like “real” legislation than constitutional law is. It deals with subjects on which there is usually a high degree of consensus in both society at large and the judiciary, enabling judges of diverse backgrounds and political commitments to reason from common premises to conclusions that command broad support within the judiciary and the larger political community. That persons of diverse backgrounds, values, and so forth can be brought to agree on a matter is the practical meaning of “objective.”
+
+Also there is a kind of competitive process at work in the common law to discipline the exercise of judicial discretion. The same issues arise under the common law of each of the states, and often there are divergent resolutions at first. But gradually consensus emerges as uncommitted judges compare the different resolutions on offer. And in the background is the threat of legislative override to check judicial power to make and remake common law. The Supreme Court, moreover, decides so few cases relative to the lower courts (see chapter 10) that in an effort to control those courts it tends to lay down flat rules (such as the Miranda warning, Roe v. Wade’s trimester rule, or the rule that due process requires a probable-cause hearing within 48 hours of arrest), like a legislature. It does not proceed tentatively from case to case, gradually narrowing broad standards by distinguishing earlier cases, as common law courts do.
+
+We must not confuse “common law” with “case law.” Ours is a case law system that includes but is not exhausted in common law. Not only constitutional law (obviously), but also to a considerable extent statutory law, is shaped by judicial decisions, with occasional intervention from the “real” legislators. The open-ended character of common law reasoning (see the quotation from Brian Simpson in the next paragraph) is equally characteristic of American case law that is not common law. But the regularizing features of the common law that I have mentioned are missing from the other areas of case law, constitutional law being only the most conspicuous example. Think not only of antitrust law but also of intellectual property law, pension law, labor law, corporation law, and numerous other fields that have been shaped to a great extent by case law. One is led to wonder how the legalist can regard case law, though it is the bulk of American law, as law at all. How can he defend the overruling of a precedent except in the rare case in which the precedent can be shown to have been based on a logical error? If the precedent just does not conform to modern conditions, its overruling is a legislative act.
+
+Even with its stabilizing features, the common law should make a legalist uncomfortable. As Frederick Schauer explains, “The common law does not view the wrong answer as the inevitable price of invariably crude generalizations. Rather, it treats all generalizations as contingent and perfectible.”13 That does not sound like a “law of rules.” Furthermore, as Brian Simpson explains,
+
+
+
+at no period in common law history has there existed a crisply defined form of legal opinion, or a closed canon of justificatory material, or a convention that effectively depersonalizes the court’s opinion, as is the case, for example, in France . . . It is of course commonplace to contrast law with policy, or legal rules or precedents with principles, and so forth, but common law reasoning has never been controlled by conventions that insist on these distinctions, or require the presentation of justificatory rhetoric in terms of them.14
+
+
+
+It might seem that judges would legislate only after they had tried and failed to decide a case by reference to the orthodox materials of legislative text and precedent. Some judges do proceed in that way. But others reverse the sequence. They start by making the legislative judgment, that is, by asking themselves what outcome—not just who wins and who loses, but what rule or standard or principle enunciated in their judicial opinion—would have the best consequences. Only then do they consider whether that outcome is blocked by the orthodox materials of legal decision making, or, more precisely, whether the benefits of that outcome are offset by the costs that it would impose in impairing legalist values such as legal stability. An equally pragmatic judge might start the other way around, by asking himself whether the issue in the case was ruled by statutory language, precedent, or some other orthodox source of law that it would be a mistake to disregard. The lawyers in the case would have hurled at him general statements, drawn from cases and statutes, that covered the case as a matter of semantics. But he would want to determine whether the authors of those statements had been referring to the kind of issue confronting him in this case. If not, he would have to make a legislative judgment.
+
+Most judges blend the two inquiries, the legalist and the legislative,15 rather than addressing them in sequence. Their response to a case is generated by legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case, all mixed together and all mediated by temperament, experience, ambition, and other personal factors. A judge does not reach a point in a difficult case at which he says, “The law has run out and now I must do some legislating.” He knows that he has to decide and that whatever he does decide will (within the broadest of limits) be law; for the judge as occasional legislator is still a judge.
+
+The phenomenology of judgment provides useful insights into judicial motivation and thinking. Wayne Martin points out that in making a judgment (it does not have to be a legal judgment) one is conscious of both freedom and constraint.16 Freedom because to make a judgment is to make a choice, constraint because judgment is a matter of deliberation (not necessarily collective—a trial judge must deliberate), of weighing alternatives; flipping a coin is an escape from judgment. The consciousness of constrained freedom is the same whether one is making an algorithmic judgment or a nonalgorithmic one.17 The sense of constraint will be stronger in the former case, hence stronger when a judge is deciding a case that lends itself to a legalist analysis than when he is making a legislative judgment. But it will be present in the latter case as well.
+
+That the judge is unconscious of a sharp break between his legalistic and his legislative activity on the bench produces leakage between his consideration of routine and of nonroutine cases. Accustomed to making nonlegalist judgments in the latter, the judge is likely to allow nonlegalist considerations to seep into his consideration of the former. This is especially likely because the case that can be decided by pure logic and the case that can be decided only by making a legislative judgment represent the ends of a continuum and are rarely encountered in the actual work of a court. Often, to decide a case the judges first derive a rule by free rather than literal interpretation of a statute and then apply the rule mechanically to the facts to determine the outcome: a legislative judgment precedes a legalist judgment. And the reverse happens too: the rule may be extracted by a literal interpretation of a statute, or of a precedent laid down by a higher court, yet its application may require a legislative judgment (perhaps the creation of an exception to the rule) if the rule, though it is the only one that could apply to the facts of the case, does not quite fit them.
+
+The combination of legalist and legislative elements in many cases further blunts the judge’s sense that he wears two hats—that sometimes he is a “real” judge and sometimes really a legislator—and so helps show why few judges think of themselves as occasional or any other kind of legislators. Think of the skier who is taught the rules of skiing—such as that in turning you should shift your weight to your uphill ski, unweight the downhill ski, and make the skis parallel—but who when he starts down the ski slope sets his mind not on following the rules (which if he does he will do by force of habit) but on getting to the bottom in one piece. The busy judge wants to decide the case sensibly and with reasonable dispatch. He does not have the time, the inclination, or the habit of introspection that would make him wonder about the nature of the judgments that he was making en route to his decision, although if he thought about it he might realize that he had not been following the orthodox methodology of judicial decision making at every step.
+
+The amount of legislating that a judge does depends on the breadth of his “zone of reasonableness”—the area within which he has discretion to decide a case either way without disgracing himself. The zone varies from judiciary to judiciary and from judge to judge. Among institutional factors that influence the breadth of the zone is the judge’s rank in the judicial hierarchy. The higher it is, the greater his discretionary authority is likely, though not certain, to be. The reason for my hedging is that a judge’s authority is diluted by the presence of other judges (if any). A federal district judge sits by himself, a federal court of appeals judge normally with two other judges, and a Supreme Court Justice with eight others. The higher the court, the greater its power, but also the more its power is shared among the judges who decide each case, which limits the individual judge’s power.
+
+A judge’s zone of reasonableness is likely to widen with experience, as he becomes more knowledgeable and more realistic about the judicial process. But I conjecture that it has a U-shaped relation to intellectual ability. Both the most able and the least able appellate judges are likely to stretch the zone—the most able because they will be quick to see, behind the general statement of a rule, the rule’s purpose and context, which limit the extent to which the general statement should control a new case; the least able because of difficulty in understanding the orthodox materials and a resulting susceptibility to emotional appeals by counsel, or, what is closely related, difficulty in grasping the abstract virtues of the systemic considerations that limit idiosyncratic judging, such as the value of the law’s being predictable.
+
+The breadth of the zone varies with the field of law. It is narrower in fields of ideological consensus, which at present is the approximate situation in, for example, contract law. In such fields judges share common premises of decision, such as belief in freedom of contract and in the importance of the written contract as a protection against the vagaries of a jury’s determination of contractual liability. Shared premises enable judges to reason together to an agreed result. The value of predictability in contract law, hence in judicial convergence on the rules and principles of that law, is obvious. Most contract rules are default rules—that is, rules the parties can contract around. They have to know what the rules are so that they can draft accordingly. Most judges in this most commercial of societies agree on all this. In fields, again illustrated by contract law, in which economic analysis is an accepted tool of judicial decision making, judicial discretion is curtailed by an analytic method distinct from the methods of legalism but not necessarily any less effective in generating outcomes felt as objective, as dictated by methodology rather than left to free choice.
+
+The zone of reasonableness is widest in those constitutional cases in which the judges’ emotions are engaged, because the constitutional text provides so little guidance and because emotion can override the systemic factors that induce judges to curb their own exercise of discretion. Rather than thinking that judges can be bludgeoned into agreeing to adopt one of the constitutional theories to channel their discretion, the body politic should bow to the inevitable and, if it is troubled by the exercise of a freewheeling legislative discretion by Supreme Court Justices, insist on greater diversity in appointments in order to make the Court more representative, so that its occasional legislating will tend to track the preferences of the official legislators.
+
+But now to say that appellate judges in many cases are legislators, or even to identify those cases, tells us nothing about their legislative preferences, the policies they enact. Nor is it enough to say, as I did in the preceding chapter, that judges are motivated by a desire to be thought, not least by themselves, “good” judges. That leaves the matter too vague. For what is a “good” judge exactly, especially when he is legislating?
+
+The key to answering this question is that the extrinsic satisfactions of a judgeship—money, power, deference, celebrity—are so meager (except, insofar as extrinsic satisfactions other than money are concerned, in the case of Supreme Court Justices) as to make the intrinsic satisfactions ordinarily crucial in the decision to become and remain a judge. All the more so now that the confirmation process is so protracted and potentially unpleasant and the financial opportunity costs of a judgeship are so great.
+
+One intrinsic satisfaction of judging is the utility that some people derive from public service. But that would be insufficient by itself to attract enough highly competent lawyers to staff the courts; zeal for public service just is not that great in the United States. You have to expect to enjoy judging (the activity, not just the post) to agree to become a judge, and to enjoy judging you have to enjoy a process, a protocol, that includes (for an appellate judge) reading briefs and listening to oral arguments (many judges greatly enjoy the give-and-take with the lawyers), negotiating with other judges, formulating rules and standards, recognizing the political and institutional limitations and opportunities of adjudication, enjoying the human comedy revealed by cases, and writing (though today more commonly supervising the writing of, and editing) judicial opinions. And the opinions have to conform to certain rhetorical principles, primarily involving the selection and narration of facts, the handling (sometimes manhandling) of orthodox legal materials, and the unobtrusive weaving into them of policy concerns while perhaps giving the reader an occasional glimpse of the judge’s personality.
+
+A defining element of the judicial protocol is what Aristotle called “corrective justice.” That means judging the case rather than the parties,18 an aspiration that is given symbolic expression in statues of Justice as a blindfolded goddess—blindfolded because she is not seeing the individual characteristics of the parties and their lawyers: their party affiliation, standing in the community, family, personal attractiveness, record of achievement, social class, ethnicity, and so forth. In the judicial oath corrective justice is called deciding “without respect to persons.”
+
+Corrective justice is also one meaning of the term “rule of law.” Another meaning of that multifaceted term is “a government of laws not men”—that is, that law is the ruler of the nation rather than officials being the rulers. The term “rule of law” is also used to designate a political system in which all public officials are, just like private persons, fully subject to legal process rather than being above it. So the United States is an entire nation under law.
+
+When “rule of law” is used in either of the two senses of “a government of laws not men,” the word “law” has to be bulked up a bit; it has to achieve some level of generality, predictability, and publicity, as otherwise it would collapse into raw political power.19 If judges are not constrained at all, there is no rule of law but only rule by judges. But this is an unsatisfactory dichotomy. We actually want judges to “rule,” though only to a degree. Judicial independence empowers judges—licenses and indeed encourages the exercise of judicial discretion—and by doing so weakens the constraints of the formal law on judges and thus undermines the rule of law.20 Because judicial independence is a great social value, the rule of law cannot be the only guiding light of a judicial system, unless we fuzz it up, as legalists do when they use the term in a vague, encompassing, aspirational Law Day sense to denote an idealized legal justice.
+
+“Corrective justice” is more meaningful than “rule of law” if used just to denote abstracting from the personal characteristics of the litigants and seeing them instead as representatives of interests that have acknowledged significance for the allocation of rights and duties—the careless victim, the reckless driver, the unauthorized copier of copyrighted work, and so forth. In Roberts’s metaphor, the judge, like the umpire, does not have preferences between contenders. Where the metaphor misleads is in denying that judges have and implement preferences between rules, or between litigants viewed as representative parties (the prosecutor, not Mr. X; the criminal defendant, not Mr. Y), as umpires cannot do, at least since the advent of the Umpire Information System.
+
+Yet even corrective justice in this “without respect to persons” sense cannot be regarded as an unqualified good, or at least is not so regarded in our legal culture. In criminal sentencing—all the more now that the federal sentencing guidelines have been (as we shall see in chapter 10) demoted to advisory status—considerations that would be deemed improper in a civil case, such as the defendant’s honorable war record, are admissible to influence the length of the defendant’s sentence. Such considerations also play a role in civil jury cases. These are further illustrations of the inadequacy of conventional conceptions of how the judicial system operates.
+
+A residual confusion in the term “corrective justice” is the implication that there is a legal duty to provide a remedy for wrongs. A modern view held by some scholars,21 it is not what Aristotle, the originator and still the authoritative expositor of the phrase, said or implied. Corrective justice is the doctrine that the function of the adjudicative process is to correct wrongs rather than to play favorites among the litigants.
+
+A lawyer who does not like the protocol that I have described, or is believed by the Senate not to like it, is unlikely to become a federal judge. Weeding out candidates unwilling to play by the rules is thus one function of the confirmation process. But there is a second function that is of growing importance because, as we glimpsed in the contrast between Tables 1 and 2 in chapter 1, political factors play a bigger role in federal judicial appointments today than they did a generation ago. The rise of the Federalist Society, which has groomed many a conservative lawyer for the bench, is one indicator of the trend, and another is the decreasing percentage of federal judges who are appointed from the ranks of private practitioners (see chapter 6).
+
+The causes are various. One is that the two major political parties have become more national and as a result more focused on ideology and less on patronage.22 For example, since the Reagan Administration the role of patronage has taken second place to ideology in court of appeals appointments. Another factor has been the Supreme Court’s insistence on injecting itself into highly emotional controversies, such as those over abortion, homosexuality, the regulation of campaign financing and the electoral process generally, and capital punishment, and doing so provocatively, with aggressive rhetoric, intemperate dissents, and, lately, promiscuous citation of foreign decisions (see chapter 12).
+
+In this environment the confirmation process operates to lop off the ideological extremes in the pool of judicial aspirants. A politicized confirmation process has the paradoxical effect of trimming the political dimension of judging by excluding the aspirants who would be most prone to politicize the judicial process. But the effect is limited. At any moment a court is composed of judges appointed at different times and therefore often in different political circumstances. The mainstream changes over time and this tends to expand the ideological distance between the most extreme judges on a court; each may have been well within the mainstream when appointed yet may be outside the current mainstream.
+
+What I am calling a “protocol” could equally be called a “game.” You do not play chess unless you are prepared to play by the rules. The rules of the game of which I am speaking with reference to the judicial process are not legal rules; I am not echoing Roberts. They are rules of articulation, awareness of boundaries and role, process values, a professional culture. Wholehearted compliance with the rules cannot be guaranteed, given judges’ freedom from the kind of external constraints that operate on other game players. If you do not play chess by the rules, you are not doing anything. If you do not play judging by the rules, but instead act the politician in robes, you are doing something, and it may be something you value more than you do the game of judging as it is supposed to be played. The distinction is blurred by the fact that the judicial game has a legislative component. Having to make an occasional legislative determination is as we know a correlate of one of the judging game’s most important rules—the duty to decide. But the rule that requires occasional legislating jostles uneasily with the other rules, which seek to distinguish the judicial role from the legislative on the basis of a distinctive judicial protocol. As a result, many judges hesitate to acknowledge, even to themselves, as one of the rules of their game a duty to legislate, albeit only occasionally.
+
+The judge’s legislative decisions are likely to be determined by two sorts of preference. One is systemic, the other case or issue specific, though not personal or (narrowly) political. The systemic preference is the judge’s desire to follow his overall judicial approach, his bent—more grandly, his judicial philosophy (originalism, liberal activism, states’ rights, natural law, strict construction, judicial self-restraint, fundamental rights, and so on, it seems, ad infinitum)—if he has one. Not all judges do, but some judges who do not want to be called willful or “result oriented” pride themselves on being guided by a judicial philosophy that overrides their reactions to the equities of the individual case. (In the cliché “Hard cases make bad law,” “hard” does not mean difficult; it means tugs at the heartstrings.) Those overall approaches are so malleable, as we shall see in subsequent chapters, that they are little better than rationalizations of decisions reached on other, unacknowledged grounds, such as sympathy for the class to which a litigant belongs, which might consist of people who have lost their jobs, or of drug addicts, prosecutors, accident victims, fraud victims, small businessmen, big businessmen, immigrants, police officers, physicians, members of the executive branch, American Indians, or farmers. These are systemic preferences because they relate to entire classes of litigant. Often they are the product of some general political (not legal) philosophy or outlook—usually a variant of “liberalism” or “conservatism.” But a judge is likely also to be influenced by the particulars of the individual case—he may be confronted by a litigant who straddles two litigant classes, one of which the judge looks upon with favor, the other not; examples are the physician who cheats on his taxes and the white supervisor who discriminates against her black underlings. Or the litigant may have characteristics that challenge the judge’s stereotypical view of the class to which the litigant belongs.
+
+These are the types of preference that shape a judge’s legislative decisions; it remains to consider the forces that influence the formation of a particular judge’s preferences.
+
+
+1. Hearing on the Nomination of John Roberts to Be Chief Justice of the Supreme Court before the Senate Judiciary Committee, 109th Cong., 1st Sess. 56 (Sept. 12, 2005).
+
+2. Federalist No. 78 (1788), in The Federalist Papers 226, 227 (Roy P. Fairfield ed., 2d ed. 1966).
+
+3. William Blackstone, Commentaries on the Laws of England, vol. 1, p. 69 (1765).
+
+4. David Gassko, “The Outside Corner,” Hardball Times, Feb. 1, 2007, www.hardballtimes.com/main/article/the-outside-corner/ (visited June 27, 2007); Tom Verducci, “Man vs. Machine,” SI (Sports Illustrated).com, June 4, 2004, http://sportsillustrated.cnn.com/si_online/news/2003/06/03/sc/ (visited June 27, 2007).
+
+5. Bush v. Gore, 531 U.S. 98 (2000), may be an exception.
+
+6. See Luther v. Borden, 48 U.S. (7 How.) 1, 46–47 (1849).
+
+7. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971). See also 5 U.S.C. § 701(a)(2).
+
+8. For evidence, see H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 273–275 (1991).
+
+9. Richard A. Posner, Frontiers of Legal Theory 219–220 (2001).
+
+10. The analogy (“rule pragmatism”) is explored further in chapter 9 of this book.
+
+11. Not a new idea, but it still grates. “The principle of the Swiss Civil Code that where the law is silent or unclear the judge must decide the case as if he were a legislator, still sounds strange to us, even after a century of demonstration, from Bentham through Holmes to Professor Pound and Cardozo and Lord Wright, that this is what in fact happens daily in our courts.” Julius Stone, The Province and Function of Law: Law as Logic, Justice, and Social Control; A Study in Jurisprudence 500 (2d ed. 1950).
+
+12. Eric Rasmusen, “Judicial Legitimacy as a Repeated Game, 10 Journal of Law, Economics and Organization 63, 75 (1994).
+
+13. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 178 (1991).
+
+14. A. W. B. Simpson, “Legal Reasoning Anatomized: On Steiner’s Moral Argument and Social Vision in the Courts,” 13 Law and Social Inquiry 637, 638 (1988) (emphasis added).
+
+15. A notable example is Holmes. See Thomas C. Grey, “Holmes on the Logic of the Law,” in The Path of the Law and Its Influence 133 (Steven J. Burton ed. 2000).
+
+16. Wayne M. Martin, Theories of Judgment: Psychology, Logic, Phenomenology, ch. 5 (2006).
+
+17. “Most human reasoning is not algorithmic. That is, it does not (overtly at least) proceed in accordance with rules of logic and/or mathematics and/or probability, or any other rules that could be incorporated into a computer program.” David Hodgson, “Partly Free: The Responsibility for Our Actions beyond the Physical Processes of Our Brains,” Times Literary Supplement, July 6, 2007, p. 15.
+
+18. That is all it means in Aristotle. Richard A. Posner, Law, Pragmatism, and Democracy 284–286 (2003). Efforts to give corrective justice a substantive meaning, as in suggesting that it requires or is exemplified by the award of damages to tort victims, are recent and in my view unsuccessful. I return to this issue in chapter 7.
+
+19. See Joseph Raz, “The Rule of Law and Its Virtue,” in Raz, The Authority of Law: Essays on Law and Morality 210 (1979).
+
+20. Lydia Brashear Tiede, “Judicial Independence: Often Cited, Rarely Understood,” 15 Journal of Contemporary Legal Issues 129, 159–160 (2006).
+
+21. See, for example, Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatic Approach to Legal Theory, pt. 1 (2001); Richard A. Epstein, “Nuisance Law: Corrective Justice and Its Utilitarian Constraints,” 8 Journal of Legal Studies 49 (1979); also references in Gregory Mitchell and Philip E. Tetlock, “An Empirical Inquiry into the Relation of Corrective Justice to Distributive Justice,” 3 Journal of Empirical Legal Studies 421 (2006).
+
+22. Herbert M. Kritzer, “Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-First Century,” 56 DePaul Law Review 423, 425–428 (2007).
+
+
+
+
+
+4
+
+
+
+
+
+The Mind of the Legislating Judge
+
+
+
+
+
+We have narrowed our inquiry into judicial mentation to cases in which the judge’s vote, in cases fairly described as legislative, is determined not by some declared judicial philosophy and not by the orthodox materials of legal decision making either but by—what? By “politics,” that slippery word? Jeremy Waldron slips on that banana peel when he says that
+
+
+
+as a citizen, a judge is Republican or Democrat, liberal or conservative, security-minded or liberty-minded, a Bush supporter or an opponent. We work on the assumption that it is wrong for a judge to decide cases simply on the basis of his or her political views. It happens of course, but we want to prevent it. The principles I have been talking about are supposed to be ways of disciplining oneself in this regard. One figures out a way of interpreting the Constitution precisely so that one’s decision in a particular case is not simply at the mercy of one’s political instincts. And the trouble with repudiating all such principles as “legalistic,” the problem with allowing justices to pursue whatever compromises and strategies seem sensible, is that it seems to undermine this discipline.1
+
+
+
+To be a “Republican or Democrat,” a “Bush supporter or an opponent,” is to be a political partisan. But to be “liberal or conservative, security-minded or liberty-minded,” is to be political in a quite different sense—in fact in two quite different senses, because a judge might be liberal or conservative in national security cases but not in other cases. Waldron does not mark these distinctions (I also wonder about the intended force of “simply” in the second sentence of the quoted passage and of “seems” in the last), but they are important. Our principal political parties are coalitions; they lack coherent ideologies. A judge may lean more toward the set of policies associated with the Democratic Party or more toward those associated with the Republican Party, but because neither party is ideologically uniform, party affiliation has only limited value in predicting judicial decisions even in the open area, where judges are legislators. A judge might have a view about the relative weight that should be accorded security and liberty in those national security cases to which the orthodox legal materials do not speak clearly, and he might think his view relevant to deciding such cases. That would not make him a political partisan even if he could not defend his weightings of the competing considerations by reference to an impartial study of the subject that he or others had made. Nor would he be a partisan if, rather than or besides having “retail” political views—views on particular issues—he had a “wholesale” view, a general political orientation, or in short an “ideology”—a body of more or less coherent bedrock beliefs about social, economic, and political questions, a worldview that shaped his answers to those questions when they arose in cases in the open area.
+
+Ideology is not the only recourse of judges in the open area. But it is a major one, as the attitudinal literature suggests, and so let us consider the sources of judges’ ideologies—a fascinating and understudied question. Moral and religious values are among those sources and are in turn the products of upbringing, education, salient life experiences, occupational experiences, and personal characteristics that may determine what experiences a person seeks. Personal characteristics include race, sex, ethnicity, and other innate identifiers of a person, but also temperament, which shapes not only values but also dispositions such as timidity and boldness that influence a person’s response to situations.
+
+The role of schooling both formal and informal in the formation of a judge’s outlook was emphasized years ago by Yale law professor Jan Deutsch under the rubric of political socialization. He was speaking of the Justices of the Supreme Court but his observations apply to other judges as well.
+
+
+
+The Court, unlike Congress, is not a social system; the task of a Justice is far more an individual than a group endeavor; and the influence of other Justices and of the institution on a new member of the Court is correspondingly limited. To a far greater extent than is true in the case of a Congressman, therefore, the search for factors that effectively impose restraints on the discretion of the individual Justice must be carried beyond the realm of his work experience to that of his schooling, both formal and informal. Such an investigation, a branch of the study of political ‘socialization,’ might profitably begin with an examination of the impact of their professional training on given Justices. For example, to what extent can a particular Justice’s perception of the range of discretion he can legitimately exercise be ascribed to a professional training that was primarily ‘policy-oriented’?
+
+
+
+As the decisions of the Court increasingly lose the appearance of ‘logic’ that has historically constituted the basis for their public acceptability, studies of the institutional differences between Congress and the Court and of the extent to which the Justices have internalized the constraints on their power implicit in those institutional differences could thus gradually serve to replace appearance with reality, could in time make possible the discarding of those symbols in terms of which the Court’s authority has historically been accepted by the public.2
+
+
+
+Experience, like training, can inculcate values that influence judicial behavior. A judge’s professional experiences before he became a judge may have convinced him that labor unions are bad for most workers, for consumers, and for the economy as a whole, or alternatively that a significant fraction of corporate executives are greedy, mendacious, and shortsighted. Such interpreted experiences could congeal into (though could also be formed by) a general antiunion or antibusiness ideology that would influence the judge’s vote in close cases involving unions accused of unfair labor practices or corporate executives accused of fraud. And we recall that personal characteristics and professional experience may be entwined—the former may determine the choice of career.
+
+It is no surprise that empirical studies do better at predicting the votes of Supreme Court Justices by including, besides a Justice’s presumed political affiliation, such additional explanatory variables as the prestige of his college, his prosecutorial experience or lack thereof, and his prior judicial experience if any.3 We learn that in the period 1916 to 1988 a Justice was more likely to favor civil rights plaintiffs if he was from the North, if he was from an urban area, if his father had not been a government official, or if he had never worked as a prosecutor; and he was more likely to vote the liberal side of economic issues if he was from an urban area, had long judicial experience,4 or had never worked as a prosecutor.5 Race, religion, and gender have also been found, as we know, to be significant predictors of judges’ votes in cases that raise issues relating to those characteristics.6 These correlations identify differences in judicial behavior that come from differences in the background knowledge that judges bring to their judging, but also, in the case of northern, religious, and urban backgrounds, in the values they are likely to have absorbed from their social environment.
+
+The correlations omit psychological variables. Yet psychological factors, including emotions that influence religious belief and give salience to particular experiences, play a large role in ideological formation, at least in societies such as ours in which freedom and mobility expose people to a range of ideological positions. Emotion exerts a huge influence on how people translate their experiences into beliefs,7 and so on the weights (critical to the balancing tests so widely used in American law) that judges assign to the probable consequences of deciding a case one way or the other.
+
+The role of emotions is related to the fact that belief systems that are called ideologies—“clusters or configurations of attitudes and beliefs that are interdependent or organized around a dominant societal theme such as liberalism or conservatism”8—are
+
+
+
+extremely ‘hypothesis-driven’ rather than ‘data driven.’ The ideolog is apt to find evidence even in the most commonplace events for the predicted workings of his enemies . . . Belief systems which are less than totally ideologized, while they may not use the same single core account for everything, nevertheless often have the ‘top-down’ character of imposing abstract and possibly gratuitous interpretations on the ambiguous data presented by the world of events.9
+
+
+
+For it is implausible that people are libertarians, or socialists, or originalists because libertarianism, or socialism, or originalism is “correct.” They can’t all be, and probably none is, except in severely qualified form. These isms, like religious beliefs, are indeed hypothesis-driven rather than fact-driven. Nothing is more common than for different people of equal competence in reasoning to form different beliefs from the same information. Think of how sophisticated people reacted to student riots protesting the Vietnam War in the late 1960s and early 1970s: some with horror, fearing social disintegration; others with exhilaration, hoping for transformative social change. They were seeing the same thing but interpreting it in opposite ways. Alternatively they were reacting differently to the same information because of different intuitions, a kind of buried knowledge. Moral psychology is intuitionist and diverse, rather than rationalistic. It includes—besides such traditional liberal values as care for others’ suffering and the duty to reciprocate benefits received—group loyalty, respect for authority, and defense of purity or sanctity.10 This diversity helps to explain the moral intensity with which many people, including many judges, embrace liberal or conservative ideologies. I will take up intuition as a factor in judicial decision making shortly, along with its cousins common sense and good judgment. Another cousin, preconception, was discussed in chapter 2. Ideology is preconception writ large—a lens that colors a judge’s initial reaction to a case.
+
+Among the intuitions that shape ideology and make ideological differences impossible to bridge by reasoned argument are metaphysical presuppositions, such as free will versus determinism, natural equality versus natural inequality, man as ensouled versus man as big-brained monkey, and original sin versus the original goodness of Rousseau’s “noble savage.” These presuppositions influence a person’s evaluation of severe punishments, welfare programs, high taxes, national security, and paternalistic government. For such an evaluation is likely to depend on whether one thinks a crime a willed evil or an accident of the genes or of upbringing, whether one thinks poverty a deserved state of irresponsible people or a failure of society, whether one thinks altruism a trustworthy motivator of public officials or a false pretense. Metaphysical disputes cannot be resolved to the satisfaction of the disputants, and this is a clue to the existence of unbridgeable disagreements at the core of American law.
+
+Intuition, emotion, and preconception are all forms of telescoped or tacit thinking, as contrasted with explicit, logical, step-by-step reasoning,11 and all are influenced not only by such obvious factors as upbringing, education, the beliefs of peers, and reigning social beliefs but also by personality. More than half a century ago, influential books by Theodor Adorno (and colleagues—the Berkeley study, as it is known) and by Gordon Allport distinguished between the authoritarian and the nonauthoritarian personality,12 spawning an extensive literature in social psychology.13 Adorno and Allport were curious whether racial prejudice had psychological causes. They concluded that it did—that it was a product of psychological maladjustment. Even earlier, Jerome Frank, an American lawyer of legal realist persuasion and later a federal appellate judge, had in his 1930 book Law and the Modern Mind attributed legal formalism to arrested psychological development. Adorno, Allport, and Frank were as one in believing that rigid, dichotomous, “inside the box” thinking—the sort associated with hierarchical attitudes toward political and other forms of authority—was rooted in infantile troubles with one’s parents. An authoritarian personality formed in childhood predisposed a person either to irrational prejudices (Adorno and Allport) or to an unwillingness to interpret law flexibly so that it would keep pace with changing social conditions and understandings (Frank). So legalists had authoritarian personalities.
+
+After decades of further research, the belief that an authoritarian personality is a product of maladjustment has dwindled,14 though one still encounters claims that such a personality is formed when parents are overprotective and excessively controlling and as a result prevent a child from developing mechanisms for coping with frightening situations.15 The child becomes fearful, and later in life intolerant of challenges to accepted modes of thought or structures of authority.
+
+People do vary in their attitudes toward authority, even though the variance is not well correlated with differences in mental health or an infant’s relations with his parents. Social psychologists believe that the variance reflects differences in beliefs, which in turn reflect different learning—from parents, teachers, peers, personal experiences, and the larger society.16 But this “social learning” approach is not fully convincing either. People exposed to similar information and arguments often react differently. How else to explain diversity of religious beliefs within the same community? It would not be surprising if personality, rather than just different learned beliefs, influences where along the liberal-conservative spectrum a judge will be found, especially since genetic factors appear to be important in predisposing a person to develop an authoritarian personality.17
+
+What I shall continue to call the authoritarian personality, but without pejorative intent and without attributing it to a psychological deformity, has been found to cause a person to react particularly strongly to threats that seem aimed at society at large—to its dominant beliefs and values, such as marriage and patriotism—as distinguished from merely personal threats. Such a person seeks security through association with a group and its beliefs,18 sensing that individual resistance would be ineffectual against a society-wide threat. More generally, the authoritarian personality is repelled by disorder, prizes hierarchy and hence fears loss of control, and dislikes ambiguity and ambiguous relationships, such as families that depart from the conventional nuclear-family model.
+
+We can begin to sense the political valence of the authoritarian personality. A study by John Jost and his colleagues lists the core elements of conservative ideology as resistance to change and acceptance of inequality, and the peripheral elements as “desire for order and stability, preference for gradual rather than revolutionary change (if any), adherence to preexisting social norms, idealization of authority figures, punishment of deviants, and endorsement of social and economic inequality.”19 The study finds the following personality traits to be positively correlated with conservatism so understood: dogmatism, intolerance of ambiguity, not being open to experience, fear of death, fear of threat in general, and need for order, structure, and closure.20 Those are hallmarks of the authoritarian personality.
+
+Suppose a judge was at an impressionable stage in his development during the disorders of the Vietnam War era. If he has an authoritarian personality, the disorders appalled him and probably drove him into the Republican camp. That would not commit him to all the planks of today’s Republican platform, but he is likely to be a conservative judge. If on the contrary he is a natural rebel—hates authority whether intellectual or political, and thus is a skeptic in the everyday sense of the word, reveling in contingency and ambiguity—then he is probably a liberal judge.
+
+I am depicting extremes exaggerated to the point of caricature, as well as ignoring the liberal bias of the literature on authoritarian personality, the authoritarianism of communists and other extreme left-wingers,21 and the other ideological axes—besides “liberal” and “conservative” in their usual modern meaning—along which judges might fall. Libertarian free marketers are unlikely to be authoritarian; zealots for political correctness, animal liberationists, and ecoterrorists and other radical Greens are quite likely to be so.
+
+I know no actual judge who “presents” as authoritarian. Authoritarianism appears to be a normally distributed (that is, bell-shaped) personality characteristic; each of us has more or less of it. Some liberals have more of it than some conservatives. Liberals have prejudices, like conservatives—just different prejudices. Liberals too want to take sides, want to belong, to be part of an in-group—this is very important to people22—that defines itself in part by opposition to a dangerous other. They too at times succumb to the anxious and rigid thinking patterns that they ascribe to conservatives.
+
+Yet, important as these qualifications are, I think that there is a correlation between personality and politics, that most American judges can probably be located along the spectrum that runs from authoritarian/conservative on the right to nonauthoritarian/liberal on the left, and that a judge’s location should have some value in predicting his votes in legalistically indeterminate cases that present issues relating to authority, the family, religion, equality, human nature, and other matters in which belief tends to be entangled with strong emotions.23
+
+But emphasis must fall on some predictive value. An authoritarian judge’s ideological convictions might be overridden by concern for institutional values, such as the desirability of crisp rules, which ought to be attractive to a person who has an authoritarian personality. Or he might have weak ideological convictions but a high degree of skepticism concerning the efficacy of the orthodox tools of legal reasoning; this might make him a pragmatic judge difficult to classify politically. His ideology might be incoherent; it might be in conflict with strong personal emotions, rooted in background or experiences, that would sometimes dominate his ideological commitments. He might have no ideology. There are judges who do not have an authoritarian personality yet have many of the beliefs that authoritarians are expected to have. Holmes (he of “three generations of imbeciles are enough” and many other “tough-minded” dicta that made his not infrequent liberal judicial and personal views all the more striking) is a notable example.
+
+The authoritarian/conservative judge in particular confronts a dilemma that may moderate his ideologically driven legislative enthusiasms. To the extent that his temperament and (closely related to or determined by it) his political ideology predispose him to value order, a desire to promote the conventional rules of the judicial game may vie with his desire to conform the law to his ideology. The judge who wants people to genuflect to the authority of “the law” may feel himself drawn to accepting, indeed to celebrating, the authority of text and precedent even when they block otherwise ideologically appealing results. Intolerance of ambiguity makes a particularly plausible match with preferring rules over standards and strict over loose construction. In chapter 10 we shall see Justice Scalia’s fondness for rules overcoming his conservative hostility to the burning of the American flag.
+
+But the kind of dilemma illustrated by the flag-burning cases is usually solved by a judge’s elevating constitutional text to the supreme principle of order, corresponding to the Bible or the Koran, with all these sacred texts sharing the fortunate property, to the ideologically ambitious, of profound ambiguity. This ambiguity is due in part to their antiquity, as a result of which they often fit modern conditions poorly, requiring aggressive “interpretation” represented as obedience.
+
+This politically conservative response (“originalism” or “textualism-originalism”)—which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today—illustrates a more general tendency of judges to reach backward for the grounds of their decisions. By doing so they can if challenged claim to be employing a different methodology from that of the legislator, who is forward-looking, a methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different possible outcomes. But the backward orientation actually enlarges a judge’s legislative scope, and not only by concealing that he is legislating. A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional text) that he can describe as the bedrock, the authentic Ur text that should guide decision. And the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archeology. You cannot, for example, just by staring at the language of the due process clauses of the Fifth and Fourteenth Amendments, determine whether they authorize judges to create abortion rights. You can adopt an interpretive rule that constitutional rights cannot be created by implication but must be stated expressly in the Constitution—more precisely, that specific constitutional rights, such as the right to an abortion, cannot be derived from constitutional rights expressed in general terms, such as the right not to be deprived of liberty without due process of law. But the choice of that interpretive rule is not something that can be derived by reasoning from agreed-upon premises.
+
+The originalist’s pretense that it can be makes originalism an example of bad faith in Sartre’s sense—bad faith as the denial of freedom to choose, and so the shirking of personal responsibility. Similar examples abound at the liberal end of the ideological spectrum. An example is Justice Breyer’s claim in his book Active Liberty24 that liberal judges, too, are interpreters, not creators. The articulation of judicial philosophies by judges is prone to hypocrisy because of the strategic attractiveness of a rhetoric of judicial certitude that declares an opposing view not merely opposed or even mistaken, but “lawless.” Jeremy Waldron, who is not an American lawyer, has been taken in by that rhetoric. He believes that good judges really do discipline themselves by submitting to “principles” that rule out politically motivated decisions; and he instances Scalia without considering the possible political motivations of the Justice’s adoption of those principles.
+
+Sartrean bad faith need not be conscious. Judges are not villains, and even a villain, according to advice given actors who play villains, is not a villain in his own eyes. The authoritarian judge may have a compelling sense that the only legitimate judicial decision is one generated by legalist analysis. He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of a political ideology. His legalist leanings will bite in his effort to control future cases by what he says in his opinion. Rather than decide the case on a narrow ground he will be inclined to declare a rule that will confer a broad precedential scope on the decision so that the next case, at least, can be decided deductively. The effort may fail, however, because the scope of a precedent is determined by decisions in subsequent cases that may bring to light considerations that cause the judges in those cases to narrow the rule declared in the earlier case.
+
+Judge Michael McConnell argues that originalism “is not an ideological position, but one that safeguards the distinction between law and politics. Textualist and originalist judges, at least in principle, will on occasion vote to uphold laws they deeply disagree with, or to strike down laws they would favor, because the basis for constitutional judging (text, history, tradition, and settled precedents) is independent of their own preferences.”25 The phrases that I have italicized give the game away. Interpreting an antique text, discerning tradition, and deciding which precedents should be deemed “settled” (why was Plessy v. Ferguson not a “settled” precedent?) and what exactly the “settled” precedents mean are tasks so fraught with uncertainty that the judge’s preferences as to outcome will not only shape his theory but also determine its application to specific cases. The moderate legalist will admit the propriety of seeking interpretive guidance in a statute’s purpose, but textualists-originalists are not purposivists; consider Justice Scalia’s campaign against resorting to legislative history to help determine statutory meaning.
+
+Often when impartial analysis does not yield a definite answer to an urgent question, emotion takes over and the role of the conscious intellect is reduced to that of rationalization. A poem by Rudyard Kipling says derisively of people who despise soldiers and police that they make “mock o’ uniforms that guard you while you sleep.”26 You are likely to have a strong reaction pro or con to this sentiment and how Kipling expressed it, but you will not be able to defend your view with arguments that would convince someone who has the opposite reaction. If you are intellectually sophisticated you may recognize that your conviction, however strong, cannot be shown to be “right,” but at most reasonable. Yet that recognition will not weaken the strength of your conviction or its influence on your behavior. A judge is likely to set some emotional reactions to one side, such as a personal liking for a litigant or his lawyer, because they are forbidden moves in the judicial game, because sophisticated people are aware of the perils of basing judgments on likeability, and because decisions so motivated will not advance one’s political goals—a litigant’s likeability is not correlated with the politics of his case. The emotional reactions triggered by seeing the parties as representatives of groups and therefore focused on their actions rather than on who they are may be just as intense. But acting on those reactions is consistent with deciding cases without respect to persons. Indignation at a wrong is consistent with corrective justice; sympathy for a litigant is not.
+
+The character of an emotional reaction, at once gripping and inarticulable, does not make emotion always an illegitimate or even a bad ground for a judicial decision. The judge has to decide the case even if unable, because he is facing irreducible uncertainty, to reach a decision by algorithmic means. Emotion can be a form of thought, though compressed and inarticulate. It is triggered by, and more often than not produces rational responses to, information.27 A child runs in front of your car and you swerve without conscious thought. That is more rational than pausing to weigh the pros and cons of running the child down.
+
+The epistemic significance of emotion depends on which emotion is engaged. Some emotions, such as anger, disgust, and happiness, increase a person’s certitude. Others, such as uncertainty, hope, surprise, fear, and worry, have the opposite effect. A person who feels certain about an issue will be disinclined to engage in systematic analysis, especially of a taxing sort (in other words, he will substitute emotion for analysis), while when he is uncertain he will have the opposite inclination.28 This point underscores the importance of our adversary system, which forces a judge to give a hearing to someone who will challenge the judge’s intuition. It also suggests the suite of emotions that one should look for in a judge.
+
+Intuition plays a major role in judicial as in most decision making. The faculty of intuition that enables a judge, a businessman, or an army commander to make a quick judgment without a conscious weighting and comparison of the pros and cons of the possible courses of action29 is best understood as a capability for reaching down into a subconscious repository of knowledge acquired from one’s education and particularly one’s experiences30 (as in “practice to the point of automaticity”31). Intuition in this sense is related to “judgment,”32 as in the proposition that experienced people tend to have “good judgment” because their experiences, though largely forgotten, remain accessible sources of knowledge for coping with challenges that despite being new are not novel, because they resemble previous challenges. Most judges in the American system are highly experienced; most are middle-aged or older, have been judges for a long time, and before becoming judges were engaged in a related activity such as private practice or law teaching. Their experiences nourish their intuitions. Unconscious preconceptions, which play so large a role in the judicial process and are the key to reconciling the attitudinal literature with what judges think they are doing, are products of intuition. This implies incidentally that the more experienced a judge is, the less his decision in a new case will be influenced by the evidence and arguments in that case—which infuriates lawyers.
+
+The choice, which is usually unconscious, between intuitive and conscious problem solving involves a trade-off between the amount of available knowledge, including long-buried knowledge that nonetheless can be recovered as intuition,33 and the precision with which whatever knowledge one has can be applied to solving the problem. Because the unconscious mind has greater capacity than the conscious mind,34 the knowledge accessible to intuition is likely to be vast. The alternative to drawing on that knowledge by means of intuition is to apply explicit, step-by-step reasoning to one’s smaller stock of conscious knowledge. That is often the inferior choice even when time is not pressing, though it is in many judicial settings. When a decision depends on several factors, you may do better by using your intuition than by trying to evaluate consciously each factor separately and combining the evaluations to form an ultimate conclusion.35 The costs of consciously processing the information may be so high that intuition will enable a more accurate as well as a speedier decision than analytical reasoning would.36 This often is true in the open area in law because what makes it open may be the number of factors that are relevant to making a decision. But intuition is important in the disposition of routine cases as well. Judges gain experience in deciding on legalist grounds the cases that can be decided on those grounds, and that experience enables them to decide more rapidly than a novice could, thereby economizing on information-processing costs.
+
+Thus, the more experienced the judge, the more confidence he is apt to repose in his intuitive reactions37 and the less likely he is to be attracted to a systematic decision-making methodology, perhaps involving Bayes’s theorem or other complex algorithms, decision trees, artificial intelligence, debiasing techniques, and so forth. Not only would decision making by means of a rigorous methodology be more difficult and time-consuming than intuitive decision making, but its advantages would be obscure because the preconditions for using such a methodology would so often be absent. It is not only that judges do not quantify relevant probabilities, as Bayes’s theorem requires; it is that many judicial decisions are made under conditions of uncertainty, precluding quantification of the relevant variables. Thus the very term “decision under uncertainty” is misleading, because the methods that decision theorists use generally require assigning probabilities. When that cannot be done we have “uncertainty” in the sense in which statisticians distinguish “uncertainty” from “risk,” and then the use of algorithmic methods of decision making becomes impossible, or desperately difficult.38 I use Bayes’s theorem to dramatize the importance of preconceptions in judicial decision making, not to offer judges the key to making objectively correct decisions.
+
+Even though judges’ decision-making methods are often and inevitably opaque because they involve telescoped rather than step-by-step thinking, it might be possible to declare the methods good or bad if it could be determined how often they misfire. Particular decisions, findings, and so forth can sometimes be adjudged right or wrong with a fair degree of confidence. But computing an overall judicial error rate, correlating judicial errors with particular methods of judicial decision making, and determining whether the error rate is “too high” (compared to what?) and would be lower if algorithmic decision making (with all its limitations) were substituted for intuitive decision making are impossible in the present state of our knowledge. Unsound methods of making decisions will be abandoned if they are known to lead to bad decisions. But if the goodness or badness of a decision cannot be determined, there will be no pressure to change the existing methods.39
+
+So judicial intuitionism is here to stay for the foreseeable future, and for the further reason that it is compelled by the institutional structure of adjudication. Judges cast a great many votes in the course of a year and do not have time to engage in elaborate analytical procedures before each vote is cast, or afterward for that matter. Typically, appellate judges read the briefs in advance of oral argument; discuss the case with their law clerks, also in advance; listen to the argument; and afterward, usually right afterward, discuss the case briefly with their colleagues and take a vote that is tentative but usually turns out to be final. At every stage the judge’s reasoning process is primarily intuitive. Given the constraints of time, it could not be otherwise; for intuition is a great economizer on conscious attention.40
+
+The role of the unconscious in judicial decision making is obscured by the convention that requires a judge to explain his decision in an opinion. The judicial opinion can best be understood as an attempt to explain how the decision, even if (as is most likely) arrived at on the basis of intuition, could have been arrived at on the basis of logical, step-by-step reasoning.41 That is a check on the errors to which intuitive reasoning is prone because of its compressed, inarticulate character; hence the value of a judge’s having a suite of emotions that does not cut him off from considering challenges to his intuitive take on a case. Beware the happy or the angry judge!
+
+It is an imperfect check, however, because the vote on how the case shall be decided precedes the opinion; and though it might be otherwise, most judges do not treat a vote, though nominally tentative, as a hypothesis to be tested by the further research conducted at the opinion-writing stage. That research is mainly a search for supporting arguments and evidence. Justificatory rather than exploratory, it is distorted by confirmation bias—the well-documented tendency, once one has made up one’s mind, to search harder for evidence that confirms rather than contradicts one’s initial judgment.42 But since it is a public document, it can be scrutinized for conformity to the norms of the judicial process, and in particular for the degree to which it gives legalism its due.
+
+That is something, but it is not everything, because the law is not exhausted in legalism. The published opinion often conceals the true reasons for a judicial decision by leaving them buried in the judicial unconscious. Had the intuitive judgment that underlies the decision been different, perhaps an equally plausible opinion in support of it could have been written. If so, the reasoning in the opinion is not the real cause of the decision, but a rationalization. This is not to denigrate the social value of published opinions but merely to indicate their limitations. They not only aid in catching the errors that are inevitable in intuitive reasoning about complex issues; they not only flag, if only by omission, any gap between the outcome and the capacity of a legalist analysis to generate it; they also facilitate the consistent decision of future cases. The first decision in a line of cases may be the product of inarticulable emotion or hunch. But once it is given articulate form, that form will take on a life of its own—a valuable life that may include binding the author and the other judges of his court (along with lower-court judges) and thus imparting needed stability to law through the doctrine of precedent, though a death grip if judges ignore changed circumstances that make a decision no longer a sound guide. Opinions create, extend, and fine-tune rules; they are supplements to constitutional and other legislative rules.
+
+The opinion provides a rare opportunity, moreover, for judges to make creative use of decision theory, one element of which is recognition of option value. An option is a method of postponing a decision; to buy an option on the purchase of a house that must be exercised within 30 days is to delay by that length of time having to decide whether to buy the house. To write a narrow opinion because one is uncertain about the implications of one’s decision is to acquire an option to decide in some future case how broadly or narrowly to interpret the decision.
+
+The role of intuition in judicial decision making was one of the scandals of legal realism, as in the article by Judge Joseph Hutcheson from which I quoted in the introduction. One interpretation of legal realism is that it is the recognition of the “thinness of the law’s propositional content—the inability of the linguistic meanings within the law to tell judges what to do in future cases.”43 In other words, the realists saw through the exaggerated pretensions of legalism. Another interpretation is that judges in a case law system such as ours have a repertoire of interpretive methods that enables them to skirt in many cases the apparent dictates of legal doctrine, including clear statements in statutes and precedents.44 Judges do not ignore legal doctrine, but they are not strait-jacketed by it.
+
+Two things fatally undermined legal realism in the eyes of the professional legal community and later killed off critical legal studies, legal realism’s radical grandchild. The first was that the realists exaggerated the open area, sometimes implying that all cases are indeterminate. The second was that the noisier realists imputed willfulness, whether in the form of politics or prejudice or sheer orneriness, to judges. This was not only resented but implausible, because willful judging is such a clear-cut violation of the rules of the judicial game. It is more plausible that judges, like other people who have to make decisions under uncertainty, act in good faith but rely heavily on intuition, and also on emotion both as shaping intuition and as an independent influence on decision making. As a result, judges are not fully conscious of the beliefs that determine their judicial votes. But Jerome Frank’s suggestion that judges needed psychotherapy to discipline their intuitions was hardly welcomed by judges and their backers in the professional legal community, even though it implicitly acquitted the judges of conscious bad faith.
+
+Law is a methodologically conservative profession, and “bad boy” rhetoric such as Frank’s advocacy of psychotherapy for judges or Fred Rodell’s proposal that the practice of law be made a crime and courts be replaced with administrative agencies including a “Killing Commission to apply its laws about what are now called murder and manslaughter,”45 like the antics of the “crits,” ensured that these scholars would not receive a fair hearing. That the only avowed legal realist to become a Supreme Court Justice—William O. Douglas—flouted perfectly sensible norms of judging46 also helped to give realism a bad name.
+
+A subtler rhetorical mistake of legal realism was Hutcheson’s equating intuition to “hunch.” A hunch sounds like a guess, a shot in the dark, and there is that element in judging. But “hunch” is a misleading as well as a belittling description of interpretation and appellate review. Both are areas where intuition reigns, but not in the form of guesswork. Interpretation is an innate, universal, and quintessentially intuitive human faculty. It is field-specific, in the sense that one’s being good at interpreting, say, faces or pictures or modern poetry does not guarantee success at interpreting contracts or statutes. It is not a rule-bound activity, and the reason a judge is likely to be a better interpreter of a statute than of a poem, and a literary critic a better interpreter of a poem than of a statute, is that experience creates a repository of buried knowledge on which intuition can draw when one is faced with a new interpretandum. The “canons” of statutory interpretation belong to the ex post rationalizing function of the judicial opinion.
+
+Appellate review is likewise intuitive, though judges pretend otherwise. Opinions recite a variety of standards of review—plenary, clearly erroneous, substantial evidence, some evidence, a modicum of evidence, reasonableness, arbitrary and capricious, abuse of discretion, Chevron, Skidmore, and so forth—but the gradations of deference that these distinctions mark are finer than judges want, can discern, or need.47 The only distinction the judicial intellect actually makes is between deferential and nondeferential review. Deferential review implies that the opposite ruling by the lower court probably would also have been upheld, and thus is inappropriate for reviewing a ruling on a question of law (for example, whether contributory or comparative negligence should be the standard for determining the effect of a victim’s negligence on a negligent injurer’s tort liability), as that would make the law vary according to which trial judge one happened to be before. But other rulings, such as deciding whether the plaintiff in a particular case was negligent, can vary among judges without unsettling the law. So those rulings are not reversed unless the appellate court is pretty confident that they are wrong, and that confidence—and hence how searching appellate review will be—will vary with the court’s assessment of its own competence relative to that of the lower court or agency that made the ruling.48 If, as in the case of a scheduling decision, there really is no standard for evaluating the correctness of a ruling, or if the ruling resolved a highly technical issue that is the bread and butter of the agency that made it, the appellate court will be strongly inclined to defer, swallowing any doubts it might have.
+
+So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person’s decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest cases, but it is not mindless guesswork either.
+
+Emphasis on the role of the unconscious in judicial decision making exposes the efforts to eliminate or compress judicial discretion by means of comprehensive theories as quixotic. In a study of Lochner-era jurisprudence we read that “the Justices were by and large motivated by a principled commitment to the application of a constitutional ideology of state neutrality” as opposed to “basing decisions on a blind adherence to laissez-faire or on a desire to see members of their class win specific lawsuits or on an interest in imposing their idiosyncratic policy preferences on the country.”49 If those are the choices, then “a principled commitment to the application of a constitutional ideology of state neutrality” is indeed attractive, even though it is a political ideology unanchored in the text of the Constitution. But if unconscious forces, perhaps heavily salted with class bias, are likely to be the motivation for the “principled commitment,” and if the alternative is not willful judging but an honest if unself-conscious and not entirely successful effort to play the judicial game by its rules, “principled commitment” begins to lose its luster, perhaps even its meaning, and the “constitutional ideology of state neutrality” begins to seem like a rationalization for small-government conservatism.
+
+Notice how the approach that I have just been sketching inverts the normative evaluation of the unconscious offered by Adorno, Allport, and Frank, all of whom thought it a malign influence on people’s behavior, necessitating psychiatric therapy. But we must not go to the opposite extreme and suppose intuition always a reliable guide to sound decision making, ignoring the value of algorithmic techniques in pushing a decision maker to bring to the conscious level and integrate the full range of factors relevant to a sound decision.50 Judges already have, however, if not formal algorithms designed to prevent blindsiding, at least crude surrogates in the form of the adversary process and the right of dissent.51 The lawyer on each side of a case has a strong incentive to bring to the court’s attention any consideration that favors his side—and likewise a dissentient judge.
+
+The danger of blindsiding remains, however, and is an argument for a diverse judiciary. The broader the range of experiences found in an appellate panel, the less likely it is that relevant considerations will be overlooked. Conversely, the more homogeneous the judiciary, the more likely it is that the judges’ intuitions will coincide. That will impart stability to the law, at the price of epistemic weakness, as the judges’ intuitions will rest on a narrower base of unconscious knowledge. Yet disagreement in even a heterogeneous judiciary will usually be kept within tolerable bounds by a combination of voting and hierarchy: majority vote decides cases at each level, with majority vote at the highest level controlling the lower levels. Unlike intellectual diversity, hierarchy is not an epistemic merit; it is the opposite. Voting and superiors’ orders are ways of overcoming disagreement, not dispelling it by reasoning to an agreed-upon conclusion. With voting, a minority does not have to be convinced that it is wrong, but only that it is indeed a minority. The rather rigid structure of the judiciary, with its reliance on votes and seniority, presupposes persistent disagreement that is unresolvable by “rational” means such as logical demonstration or experimentation—and so presupposes the inadequacy of legalism.
+
+The kind of telescoped reasoning that I have been discussing is called by Dan Kahan and Donald Braman “cultural cognition.” They point out that “cultural commitments are prior to factual beliefs on highly charged political issues . . . Based on a variety of overlapping psychological mechanisms, individuals accept or reject empirical claims about the consequences of controversial policies based on their vision of a good society.”52 These mechanisms (political preconceptions by a different name) are powerful in the case of educated people such as judges only when empirical claims cannot be verified or falsified by objective data. But the empirical claims made in judicial proceedings—for example, claims concerning the deterrent effect of capital punishment or the risk to national security of allowing suspected terrorists to obtain habeas corpus—often are unverified. So judges fall back on their intuitions, because the empirical challenges to their intuitions do not have the force required to dislodge those intuitions.
+
+Cultural cognition includes common sense, which resembles intuition. Common sense is what “everyone knows” without having to think hard about a subject. So it is elliptical, like intuition.53 And it is culturally specific. But within a culture it is a valid though flawed source of knowledge. It operates in judicial decision making as a set of policy judgments that everyone agrees on and so are not thought political at all. A lawyer’s position in a case in the open area that violates common sense is a strong candidate for rejection. The doctrine that a literal reading of a statute is to be rejected when it would lead to an absurd result illustrates the use of common sense as a judicial technique.
+
+Appeals to common sense are a familiar rhetorical technique, which should remind us that “rhetoric” has a meaning other than windy oratory. In Aristotle’s conception, rhetoric is the set of rational methods used to persuade in situations in which the techniques of logic and other methods of exact inquiry are unusable. Cases in the open area present such situations, and the methods to which lawyers and judges resort in such cases are rhetorical in Aristotle’s sense; they do not define a distinctive method of legal reasoning that can make a plausible claim to intellectual rigor.
+
+Another cousin of intuition and another major factor in judicial decisions in the open area is “good judgment,” an elusive faculty best understood as a compound of empathy, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a sense of reality, and common sense.54 It is different, despite my reference to maturity, from experience, because some highly experienced people have poor judgment and some young and inexperienced people have excellent judgment. It is another of the means that people have for maneuvering in situations of uncertainty. If law were logical, “good judgment” would not be an admired quality in judges—as it is even by legalists. Not that good judgment is a guarantor of good decisions, any more than intuition, common sense, or emotion (including righteous indignation) is. As much as any human being, a judge is merely “a choosing organism of limited knowledge and ability.”55
+
+Let me bring this chapter to a close by adverting briefly to its implications for the training of judges and the practice of law. Apart from brief orientation sessions and occasional continuing legal education seminars, judges in our system are not actually “trained,” which is an interesting commentary on the methodological rigor, or rather the lack thereof, of judging. Judicial “training” is learning by doing—a further clue to the largely tacit character of judicial reasoning.
+
+There are occasional proposals to subject judges to formal training of one kind or another. Jerome Frank’s proposal that judges undergo psychoanalysis, as he had done, was of that character, though ridiculous. Apart from the time and expense involved, there is no basis for the claim that psychoanalysis has nontherapeutic value—for example, that it can improve the judgment of a normal person. But Frank’s underlying emphasis on the psychological dimension of judging was not ridiculous. As Frederick Schauer explains, Frank’s version of legal realism can be understood as “an attempt to lessen the distance, descriptively and prescriptively, between how a judge as a human being and that same human being clothed in judicial robes would resolve a controversy.”56
+
+Dan Simon suggests, more sensibly than Frank, applying techniques of debiasing to judges.57 But they sound a little ominous, like brainwashing, and would be strongly resisted by judges. Here is a simpler suggestion, directed at the trial and appellate bar: since judges in our system are legislators as well as adjudicators, lawyers should make a greater effort to present facts to judges—not so much the facts of the case, the adjudicative facts, which most lawyers do emphasize, but rather the background or general facts that influence a legislative decision (“legislative facts,” in the conventional and in this instance useful terminology). I have pointed to life experiences as a factor shaping judicial choices in what I call the open area. Those experiences include encounters with large, brute facts. Who would deny the impact on judicial thinking of such unignorable facts as the civil rights and women’s movements, the ignominious collapse of communism, the spread of free markets, deregulation and privatization, the increased menace of terrorism, and the emergence of homosexuals from the closet and the resulting discovery that they are really quite like other people? More attention to legislative facts, such as what economists have learned about competition and labor markets and what criminologists have learned about criminal behavior and punishment, would influence judicial decisions for the good. Rather than beating appellate judges over the head with cases, which is the standard technique of appellate advocacy, appellate lawyers would be more effective if, recognizing the essentially legislative character of much appellate adjudication and the essentially pragmatic disposition of most American judges, they emphasized instead the practical stakes in their cases and how the stakes would be affected by the court’s deciding those cases one way rather than another.58
+
+We need not worry that such background facts are bound to be pallid compared to the equities of the individual case, so that the nonlegalist judge will find himself rendering shortsighted justice. One value of a system of precedent is that it invites judges to think about the impact of their decisions on future litigants. (Notice that by doing this it fosters pragmatic thinking by directing judges’ attention to the consequences of their decisions.) Moreover, most judges are (surprisingly to nonjudges) unmoved by the equities of the individual case, as most legal realists, other than Jerome Frank, realized.59 Of course there are exceptions; Justices Douglas and Blackmun come first to mind. And perhaps few judges are fully inoculated against the siren song of an emotionally compelling case. Nevertheless, as Hamlet said, “The hand of little employment hath the daintier sense.”60 Just as doctors tend to be callous about sick people, judges tend to be callous about pathetic litigants because they have seen so many of them. This is true of liberal as well as conservative judges, because setting aside one’s natural sympathies is a big part of playing the judicial game. Judges really do internalize the slogan “Hard cases make bad law,” and they do not want to make bad law.
+
+Jerome Frank pronounced Oliver Wendell Holmes the “completely adult jurist.”61 He meant by this that Holmes recognized, as the Justice himself put it, that “certitude is not the test of certainty.”62 This was his famous detachment, thought callous by his detractors. He may have been callous. Indifference, lack of passion or even of empathy, may be positively correlated with detachment. But the relevant personality trait of Holmes may be different. I conjecture that Holmes—surprisingly given his distinguished lineage, his professional success, his commanding presence, and his wartime prowess—did not take himself very seriously. He was a wit, and wit implies a sense of incongruity, including the incongruity between one’s pretensions and one’s achievements. If you do not take yourself very seriously you are unlikely to fool yourself into thinking that you have all the answers. A judge who, like Holmes, does not think he has all the answers is less likely to challenge the decisions of the other branches of government than a know-it-all judge. Frank, writing at a time when the Supreme Court was quick to invalidate just the kind of social legislation that he favored, wanted judges to be more deferential, more modest he thought, more adult, but I am content to say more self-aware. He probably was right to sense that overweening confidence in the correctness of one’s beliefs (as in the phrase “often in error, never in doubt”) goes along with the embrace of a thoroughgoing legalism, and that such a joinder is most attractive to an authoritarian personality. But overconfidence is an occupational risk of all judges, because one doesn’t have to be an authoritarian to derive utility from believing that one is right; it is a general human trait.63 Overconfidence is related to the possession of preconceptions, which, especially when unconscious, generate a sense of rightness even when the evidence gathered in inquiry is weak, and a tendency to interpret the evidence as confirming the inquirer’s priors.64
+
+Greater recognition of the role of the personal, the emotional, and the intuitive in judicial decisions would not weaken the force of these factors in judicial decision making, because there are no adequate alternatives and judges have to decide their cases with the tools at hand. But I disagree with Scott Altman that introspection would make judges feel free to vote their prejudices because they would no longer think themselves penned in by “the law.”65 They would keep on playing the judicial game as they have always done. A few might become more hesitant to impose their views on the community in the name of law, realizing the tenuous foundations of some of those views. But only a few. For one cannot preach introspection with much success. Nor is introspection the same thing as self-knowledge. We use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others.66 We are predisposed to an exaggerated confidence in the soundness and coherence of our beliefs even when we cannot defend them.67 To paraphrase the criticism of King Lear by one of his bad daughters, most judges have ever but slenderly known themselves.68 That is unlikely to change.
+
+
+1. Jeremy Waldron, “Temperamental Justice,” New York Review of Books, May 10, 2007, pp. 15, 17.
+
+2. Jan G. Deutsch, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections between Law and Political Science,” 20 Stanford Law Review 169, 260–261 (1968).
+
+3. See C. Neal Tate and Roger Handberg, “Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior, 1916–88,” 35 American Journal of Political Science 460 (1991); Tate, “Personal Attribute Models of the Voting Behavior of U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economics Decisions, 1946–1978,” 75 American Political Science Review 355 (1981); S. Sidney Ulmer, “Dissent Behavior and the Social Background of Supreme Court Justices,” 32 Journal of Politics 580 (1970); Ulmer, “Social Background as an Indicator of the Votes of Supreme Court Justices in Criminal Cases: 1947–1956 Terms,” 17 American Journal of Political Science 622 (1973); Ulmer, “Are Social Background Models Time-Bound?” 80 American Political Science Review 957 (1986).
+
+4. Notice that the four liberal Justices on the Supreme Court (Stevens, Souter, Ginsburg, and Breyer) have in the aggregate significantly more judicial experience than the four conservative Justices (Roberts, Scalia, Thomas, and Alito). The relation still holds, though it is weakened, if the remaining Justice, the moderate conservative Kennedy, is grouped with the conservatives.
+
+5. Tate and Handberg, note 3 above, at 473–475.
+
+6. See, besides references in chapter 1, David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan, “Do Judges Vary in Their Treatment of Race?” (University of Chicago, 2007); Darrell Steffensmeier and Chestler L. Britt, “Judges’ Race and Judicial Decision Making: Do Black Judges Sentence Differently?” 82 Social Science Quarterly 749 (2001); Orley Ashenfelter, Theodore Eisenberg, and Stewart J. Schwab, “Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes,” 24 Journal of Legal Studies 257 (1995); Gerald S. Gryski, Eleanor C. Main, and William J. Dixon, “Models of State High Court Decision Making in Sex Discrimination Cases,” 48 Journal of Politics 143 (1986).
+
+7. For illuminating discussions of the relation among emotion, belief formation, and decision making, see Alain Berthoz, Emotion and Reason: The Cognitive Neuroscience of Decision Making, ch. 2 (2006); Mary Douglas and Aaron B. Wildavsky, Risk and Culture: An Essay on the Selection of Technical and Environmental Dangers (1982).
+
+8. Alice H. Eagly and Shelly Chaiken, The Psychology of Attitudes 145 (1993).
+
+9. Robert P. Abelson, “Concepts for Representing Mundane Reality in Plans,” in Representation and Understanding: Studies in Cognitive Science 273, 274 (Daniel G. Bobrow and Allan Collins eds. 1975).
+
+10. See Jonathan Haidt and Jesse Graham, “When Morality Opposes Justice: Conservatives Have Moral Intuitions That Liberals May Not Recognize,” 20 Social Justice Research 98 (2007); Haidt, “The New Synthesis in Moral Psychology,” 316 Science 998 (2007); Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” 108 Psychological Review 814 (2001).
+
+11. On the myriad ways in which actual human thinking departs from the ideal of rigorous, conscious, algorithmic reasoning, see Philip N. Johnson-Laird, How We Reason (2006); Miriam Solomon, “Social Cognition,” in Philosophy of Psychology and Cognitive Science 413 (Paul Thagard ed. 2007). And this includes judicial thinking. See Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Inside the Judicial Mind,” 86 Cornell Law Review 777 (2001); Jeffrey J. Rachlinski, Chris Guthrie, and Andrew J. Wistrich, “Inside the Bankruptcy Judge’s Mind,” 86 Boston University Law Review 1227 (2006).
+
+12. Theodor W. Adorno et al., The Authoritarian Personality (1950); Gordon W. Allport, The Nature of Prejudice (1954). For a comprehensive recent analysis of the relationship between personality and ideology, see John T. Jost et al., “Political Conservatism as Motivated Social Cognition,” 129 Psychological Bulletin 359 (2003).
+
+13. See, for example, On the Nature of Prejudice: Fifty Years after Allport (John F. Dovidio, Peter Glick, and Laurie A. Rudman eds. 2005); Strength and Weakness: The Authoritarian Personality Today (William F. Stone, Gerda Lederer, and Richard Christie eds. 1993); The Psychological Basis of Ideology (Hans J. Eysenck and Glenn D. Wilson eds. 1978); Stanley Feldman and Karen Stenner, “Perceived Threat and Authoritarianism,” 18 Political Psychology 741 (1997).
+
+14. John Duckitt, “Personality and Prejudice,” in On the Nature of Prejudice, note 13, at 395, 401–402; Robert A. Altemeyer, Right-Wing Authoritarianism 112–115 (1981).
+
+15. Detlef Oesterreich, “Flight into Security: A New Approach and Measure of the Authoritarian Personality,” 26 Political Psychology 275, 282–286 (2005). See also Christel Hopf, “Authoritarians and Their Families: Qualitative Studies on the Origins of Authoritarian Dispositions,” in Strength and Weakness, note 13 above, ch. 6.
+
+16. Robert A. Altemeyer, The Authoritarian Specter 76–92 and ch. 6 (1996). See also Hans J. Eysenck, The Psychology of Politics, chs. 8 and 9 (1998 [1954]). And on the fundamental point—the unconscious influences of the entire “social surround” in determining attitudes and beliefs—see John A. Bargh and Erin L. Williams, “The Automaticity of Social Life,” 15 Current Directions in Psychological Science 1 (2006); R. W. Connell, “Political Socialization in the American Family: The Evidence Re-examined,” 36 Public Opinion Quarterly 323 (1972). And note the parallel to the passage I quoted earlier from Jan Deutsch, discussing the “political socialization” of judges.
+
+17. Kathryn McCourt et al., “Authoritarianism Revisited: Familial Influences Examined in Twins Reared Apart and Together,” 27 Personality and Individual Differences 985, 1008 (1999); Amy C. Abrahamson, Laura A. Baker, and Avshalom Caspi, “Rebellious Teens? Genetic and Environmental Influences on the Social Attitudes of Adolescents,” 83 Journal of Personality and Social Psychology 1392 (2002). These findings were anticipated by Private Willis in Act II of Iolanthe:
+
+I often think it’s comical . . .
+
+How Nature always does contrive . . .
+
+That every boy and every gal
+
+That’s born into the world alive
+
+Is either a little Liberal
+
+Or else a little Conservative!
+
+18. Feldman and Stenner, note 13 above.
+
+19. Jost et al., note 12 above, at 342–343. In the parallel formulation by Christopher Weber and Christopher M. Federico, “Interpersonal Attachment and Patterns of Ideological Belief,” 28 Political Psychology 389 (2007), “right-wing authoritarianism . . . is defined by a constellation of three social attitudes: conventionalism, submission to authority, and aggression against outgroups, which covary to form a highly unitary attitudinal dimension.” The authors identify another political psychology that they call “social dominance orientation”: “We thus hypothesized that individuals with an anxious attachment style would perceive the world as dangerous and threatening and would in turn endorse the social and cultural aspects of conservatism—in the form of RWA [right-wing authoritarianism]—in order to reduce threat. In contrast, attachment avoidance is marked by interpersonal distrust and by the desire to control others. We thus hypothesized that individuals with an avoidant attachment style would tend to see the world as an uncaring, competitive jungle in which people maximize personal utility and would in turn endorse the economic aspects of conservatism—in the form of SDO [social dominance orientation]—in order to exert control.” Id. at 405. An axis related to both RWA and SDO is the “tough-minded”–“tender-minded” axis, on which see Eysenck, note 16 above, at 147.
+
+20. Jost et al., note 12 above, at 366.
+
+21. Jeff Greenberg and Eva Jonas, “Psychological Motivations and Political Orientation—The Left, the Right, and the Rigid: Comment on Jost et al. (2003),” 129 Psychological Bulletin 376 (2003); Eysenck, note 16 above; Milton Rokeach, The Open and Closed Mind: Investigations into the Nature of Belief Systems (1960). Greenberg and Jonas argue that the relevant polarity is not liberal-conservative but ideological rigidity versus ideological flexibility. Jost et al. respond that although indeed there is left authoritarianism, in the American political culture (with communism and other left radicalism deader than a doornail) there is a strong positive correlation between conservatism and authoritarian personality traits, and that although conservatives do frequently support change, it is generally change back to some previous status quo. John T. Jost et al., “Exceptions That Prove the Rule—Using a Theory of Motivated Social Cognition to Account for Ideological Incongruities and Political Anomalies: Reply to Greenberg and Jonas,” 129 Psychological Bulletin 383 (2003).
+
+22. Solomon E. Asch, Social Psychology 605–606 (1952).
+
+23. See Johnson-Laird, note 11 above, at 334–335.
+
+24. I discuss the book in chapter 11.
+
+25. Michael W. McConnell, “Book Review [of Breyer’s book],” 119 Harvard Law Review 2387, 2415 (2006) (emphasis added).
+
+26. Rudyard Kipling, “Tommy,” in Kipling, Barrack-Room Ballads: And Other Verses 6, 7 (1892).
+
+27. I stress the difference between emotion as a useful cognitive shortcut and emotion as a nonrational influence on belief or behavior (“emotionalism”), citing an extensive literature, in my book Frontiers of Legal Theory, ch. 7 (2001). See also Johnson-Laird, note 11 above, ch. 6.
+
+28. Norbert Schwarz, “Feelings as Information: Moods Influence Judgments and Processing Strategies,” in Heuristics and Biases: The Psychology of Intuitive Judgment 534, 539 (Thomas Gilovich, Dale Griffin, and Daniel Kahneman eds. 2002); Larissa Z. Tiedens and Susan Linton, “Judgment under Emotional Certainty and Uncertainty: The Effects of Specific Emotions on Information Processing,” 81 Journal of Personality and Social Psychology 973, 985 (2001) (“certainty-associated emotions result in more heuristic processing than do uncertainty-associated emotions, which promote systematic processing”).
+
+29. There are other meanings of “intuition”—see Lisa M. Osbeck, “Conceptual Problems in the Development of a Psychological Notion of ‘Intuition,’” 29 Journal for the Theory of Social Behavior 229 (1999)—but they are not germane to my concerns.
+
+30. See, for example, Robin M. Hogarth, Educating Intuition (2001); Roger Frantz, “Herbert Simon: Artificial Intelligence as a Framework for Understanding Intuition,” 24 Journal of Economic Psychology 265, 273–275 (2003).
+
+31. S. Farnham-Diggory, “Paradigms of Knowledge and Instruction,” 64 Review of Educational Research 463, 468 (1994).
+
+32. Margaret E. Brooks and Scott Highhouse, “Can Good Judgment Be Measured?” in Situational Judgment Tests: Theory, Measurement and Application 39 (Jeff A. Weekley and Robert Ployhard eds. 2006).
+
+33. See, for example, “The Logic of Tacit Inference,” in Michael Polanyi, Knowing and Being: Essays 138 (Marjorie Grene ed. 1969); Richard N. Langlois and Müfit M. Sabooglu, “Knowledge and Meliorism in the Evolutionary Theory of F. A. Hayek,” in Evolutionary Economics: Program and Scope 231 (Kurt Dopfer ed. 2001).
+
+34. Ap Dijksterhuis et al., “On Making the Right Choice: The Deliberation-without-Attention Effect,” 311 Science 1005 (2006).
+
+35. Brooks and Highhouse, note 32 above, at 43; Timothy D. Wilson and Jonathan W. Schooler, “Thinking Too Much: Introspection Can Reduce the Quality of Preferences and Decisions,” 60 Journal of Personality and Social Psychology 181 (1991); Pawel Lewicki, Maria Czyzewska, and Hunter Hoffman, “Unconscious Acquisition of Complex Procedural Knowledge,” 13 Journal of Experimental Psychology: Learning, Memory and Cognition 523 (1987).
+
+36. See, for example, Lewicki, Czyzewska, and Hoffman, note 35 above; Adrianus Dingeman de Groot and Fernand Gobet, Perception and Memory in Chess: Studies in the Heuristics of the Professional Eye 4 (1996); Arthur S. Reber, Implicit Learning and Tacit Knowledge: An Essay on the Cognitive Unconscious (1993); Baljinder Sahdra and Paul Thagard, “Procedural Knowledge in Molecular Biology,” 16 Philosophical Psychology 477 (2003); Ido Erev, Gary Bornstein, and Thomas S. Wallsten, “The Negative Effect of Probability Assessments on Decision Quality,” 55 Organizational Behavior and Human Decision Processes 78, 92 (1993).
+
+37. See Michael R. P. Dougherty, Scott D. Gronlund, and Charles F. Gettys, “Memory as a Fundamental Heuristic for Decision Making,” in Emerging Perspectives on Judgment and Decision Research 125, 144–149 (Sandra L. Schneider and James Shanteau eds. 2003).
+
+38. See, for example, Richard A. Posner, Catastrophe: Risk and Response, ch. 3 (2004); Martin L. Weitzman, “Structural Uncertainty and the Value of Statistical Life in the Economics of Catastrophic Climate Change” (Harvard University, Department of Economics, Oct. 31, 2007). A good way to think about the distinction is in terms of insurance. To be able to compute an insurance premium, an insurance company has to be able to make a quantitative estimate of the risk that the loss to be insured against will occur. When the risk is unknown, insurance against it is a form of gambling because the premium that would compensate an insurer for bearing the risk cannot be computed.
+
+39. J. Frank Yates, Elizabeth S. Veinott, and Andrea L. Patalano, “Hard Decisions, Bad Decisions: On Decision Quality and Decision Aiding,” in Emerging Perspectives on Judgment and Decision Research 13 (Sandra L. Schneider and James Shanteau eds. 2003).
+
+40. Hogarth, note 30 above, at 138. My discussion is focused on appellate judges, but trial judges of course are under comparable—indeed greater—time pressure to make rulings and findings and decide their cases.
+
+41. Another way to put this is that intuition belongs to the logic of discovery rather than to that of justification. See Kenneth S. Bowers et al., “Intuition in the Context of Discovery,” 22 Cognitive Psychology 72 (1990).
+
+42. See, for example, Ziva Kunda, “The Case for Motivated Reasoning,” 108 Psychological Bulletin 480 (1990); Frank B. Cross and Stefanie A. Lindquist, “The Scientific Study of Judicial Activism,” 91 Minnesota Law Review 1752, 1767–1768 (2007).
+
+43. Michael Steven Green, “Legal Realism as Theory of Law,” 46 William and Mary Law Review 1915, 1978 (2005).
+
+44. Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, ch. 1 (2007). For a sense of the variety of legal realism, see the anthology American Legal Realism (William W. Fisher III, Morton J. Horwitz, and Thomas A. Reed eds. 1993). For an interesting recent attempt to cast legal realism in a constructive, as distinct from the more common oppositional, role, see Hanoch Dagan, “The Realist Conception of Law,” 57 University of Toronto Law Journal 607 (2007).
+
+45. Fred Rodell, Woe unto You, Lawyers! 176, 182 (1939). The book was reissued in 1957 with a new preface, in which Rodell said that he stood by everything he had said in it.
+
+46. Here is a sampling of criticisms of Douglas—none by conservatives. “His [Douglas’s] opinions were not models; they appear to be hastily written; and they are easy to ignore.” L. A. Powe, Jr., “Justice Douglas after Fifty Years: The First Amendment, McCarthyism and Rights,” 6 Constitutional Commentary 267, 269 (1989). The carelessness of Douglas’s opinions was rooted in his “indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role.” Yosal Rogat, “Mr. Justice Pangloss,” New York Review of Books, Oct. 22, 1964, p. 5. “Douglas was the foremost anti-judge of his time.” G. Edward White, “The Anti-Judge: William O. Douglas and the Ambiguities of Individuality,” 74 Virginia Law Review 17, 80 (1988). Douglas “refus[ed] to judge in tax cases.” Bernard Wolfman, Jonathan L. F. Silver, and Marjorie A. Silver, “The Behavior of Justice Douglas in Federal Tax Cases,” 122 University of Pennsylvania Law Review 235, 330 (1973).
+
+47. See, for example, William N. Eskridge, Jr., and Lauren E. Baer, “The Supreme Court’s Deference Continuum: An Empirical Analysis (from Chevron to Hamdan)” (forthcoming in Georgetown Law Journal).
+
+48. Id.
+
+49. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 199 (1993).
+
+50. See, for example, Dawn Lamond and Carl Thompson, “Intuition and Analysis in Decision Making and Choice,” 32 Journal of Nursing Scholarship 411 (2000); Willard Zangwill and Michael Lowenthal, “Decision Breakthrough Technology” (University of Chicago, Graduate School of Business, May 2006). Lamond and Thompson, above, at 413, explain that “for ill-structured tasks, with a large number of cues and very little time, intuition is the most appropriate cognitive mode to use. In well-structured tasks, with few cues and a lot of time, then analysis is the favoured cognitive mode. However, most tasks are a mixture of ill and well structured.”
+
+51. Cf. Paul Woodruff, “Paideia and Good Judgment,” in The Proceedings of the Twentieth World Congress of Philosophy 63, 73 (David M. Steiner ed. 1999), noting that “the best defense against error is to give full play to opposing arguments and to sift them carefully for potential defeaters of the conclusion you are inclined to accept. A person of good judgment . . . should be capable of constructing arguments on both sides of an issue.”
+
+52. Dan M. Kahan and Donald Braman, “Cultural Cognition and Public Policy,” 24 Yale Law and Policy Review 149, 150 (2006). See also Douglas and Wildavsky, note 7 above.
+
+53. Charles Antaki, “Commonsense Reasoning: Arriving at Conclusions or Traveling towards Them?” in The Status of Common Sense in Psychology 169 (Jürg Siegfried ed. 1994).
+
+54. See Michael Boudin, “Common Sense in Law Practice (or, Was John Brown a Man of Sound Judgment?),” 34 Harvard Law School Bulletin, Spring 1983, p. 22.
+
+55. Herbert A. Simon, “A Behavioral Model of Rational Choice,” 69 Quarterly Journal of Economics 99, 114 (1955).
+
+56. Frederick Schauer, “The Limited Domain of the Law,” 90 Virginia Law Review 1909, 1923 (2004). See also Andrew S. Watson, “Some Psychological Aspects of the Trial Judge’s Decision-Making,” 39 Mercer Law Review 937 (1988).
+
+57. Dan Simon, “A Psychological Model of Judicial Decision Making,” 30 Rutgers Law Journal 1, 138–140 (1998).
+
+58. See, for example, Matthew A. Edwards, “Posner’s Pragmatism and Payton Home Arrests,” 77 Washington Law Review 299 (2002), or any issue of the Journal of Empirical Legal Studies.
+
+59. Leiter, note 44 above, at 21–30.
+
+60. William Shakespeare, Hamlet, act 5, sc. 1, l. 66.
+
+61. Jerome Frank, Law and the Modern Mind 270–277 (1930).
+
+62. Oliver Wendell Holmes, “Natural Law,” 32 Harvard Law Review 40 (1918).
+
+63. Kfir Eliaz and Andrew Schotter, “Experimental Testing of Intrinsic Preferences for Noninstrumental Information,” 97 American Economic Review Papers and Proceedings 166 (May 2007). On the egocentric biases of judges, see Guthrie, Rachlinski, and Wistrich, note 11 above.
+
+64. See, for example, Charles G. Lord, Lee Ross, and Mark R. Lepper, “Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence,” 37 Journal of Personality and Social Psychology 2098 (1979).
+
+65. Scott Altman, “Beyond Candor,” 89 Michigan Law Review 296 (1990). The issue of introspection is related to the much-debated issue of whether judges should be candid with their public. See Micah Schwartzman, “The Principle of Judicial Sincerity” (University of Virginia Law School Public Law and Legal Theory Working Paper Series, Paper No. 69, 2007), http://law.bepress.com/uvalwps/uva_publiclaw/art69 (visited June 25, 2007), and references therein. If judges are not introspective, their candor will not illuminate the actual springs of their decisions.
+
+66. Joyce Ehrlinger, Thomas Gilovich, and Lee Ross, “Peering into the Bias Blind Spot: People’s Assessments of Bias in Themselves and Others,” 31 Personality and Social Psychology Bulletin 680 (2005). See also Emily Pronin, Jonah Berger, and Sarah Malouki, “Alone in a Crowd of Sheep: Asymmetric Perceptions of Conformity and Their Roots in an Introspection Illusion,” 92 Journal of Personality and Social Psychology 585 (2007).
+
+67. That is the theme of Dan Simon’s article, note 57 above.
+
+68. William Shakespeare, King Lear, act 1, sc. 1, ll. 295–296.
+
+
+
+
+
+II
+
+
+
+
+
+The Model Elaborated
+
+
+
+
+
+5
+
+
+
+
+
+The Judicial Environment: External Constraints on Judging
+
+
+
+
+
+I have argued that even judges who have more or less complete freedom to decide a case any way they want are constrained by concerns for their reputation among people whom they respect but even more by their having internalized the norms and usages of the judicial “game.” We might think of these as “internal” constraints on judicial willfulness or errancy. But even in our legal system there are external constraints as well, though fewer than in most other legal systems. The external constraints are the subject of this and the next chapter.
+
+The felt need for such constraints is illuminated by the economic concept of “agency costs,” which is fundamental to understanding labor markets, including the judicial labor market. A principal hires an agent to do a job that the principal could not do as well or as cheaply himself. The principal wants the agent to do the best possible job at the lowest possible cost. In other words, he wants the agent’s incentives to coincide with his own. But the agent is a self-interested person, just like the principal. Unless the principal can accurately evaluate the agent’s performance and adjust his compensation accordingly, and if need be fire him for underperforming, the agent is unlikely to be perfectly faithful.
+
+When the principal is the government and the agent a judge employed by it, the problem of agency costs is acute because the government lacks the usual levers by which to procure an agent’s fidelity to the principal’s interests. Judicial performance is difficult to evaluate, and trying to proportion compensation to it would undermine the independence of the judiciary (for who would be making the evaluations, and what criteria would they use?), which as we know is a valuable social asset. The judge must be guaranteed unusually strong job security.
+
+A related question is who a federal judge’s principal is, or indeed whether there is one in a meaningful sense. Is it the judges of a higher court—but then who are the principals of the judges of the highest court? If the principals are not other judges, are they the members of Congress? The President who appointed the judges? The current President? The American people? The framers of the Constitution? The Constitution itself, or statutes and precedents? But can documents be principals? “The law”?
+
+Whatever the answers, no society leaves its judges completely at large. But there are major differences in the external constraints imposed in different judicial systems, and we can expect judicial behavior to differ across judicial systems accordingly, and also within systems that impose different constraints on different classes of judge. We can also expect the criteria of judicial performance to vary with the constraints on judicial behavior. In some judicial systems a judge’s reversal rate might be a critical performance criterion, while in another more weight might be placed on how often a judge’s opinions are cited by other courts or even on the political acumen exhibited by the judge in his opinions.
+
+But though correlated, judicial discretion and agency costs are not identical. The studies that find that the political party of the appointing President is a good predictor of a judge’s votes are consistent with the judge’s being a faithful agent of the President who appointed him and even, to the extent that political preferences are legitimate factors in adjudication, with his being a faithful agent of “the law.” The problem of judicial agency costs arises only when the looseness of the principal’s control over the judge enables the latter to base his decisions on a preference that is too personal, too idiosyncratic, to be acceptable.
+
+Similarly, the fact that judicial decisions are sometimes influenced by the race, religion, gender, or other personal characteristics of the judge need not be a consequence of disloyalty. It may just reflect the fact that people of different backgrounds bring different priors to their resolution of factual issues and have different policy preferences. Agency costs are triggered not only by disloyalty but also, and perhaps especially in the case of American judges, by uncertainty. When the agents are judges and the principal is the United States, the agents have trouble figuring out what their principal wants them to do.
+
+The problem of agency costs is acute in many other domains besides judging, and employers’ responses involve a mixture of inducing and enhancing internal constraints and imposing external ones. Take medicine. Because patients have difficulty evaluating medical services, a variety of mechanisms have evolved for nevertheless constraining doctors to be loyal and competent agents of their patients. These mechanisms include ethical rules (such as the Hippocratic oath), board certification, malpractice liability, monitoring by liability insurers, limits on sharing fees, and, of particular interest, the excessively demanding character of medical training, which has aspects of hazing. The training is an effective filter, screening out of the medical profession persons who may have the skills to be good doctors but lack the passion for becoming a doctor that is required to overcome the hardships of the training. Apart from its effect as a filter, arduous training builds commitment to the institution; an external constraint creates an internal one (a standard objective of hazing—think of Marine training or even fraternity hazing). Legal education has similar but, especially with the decline in professorial bullying and the abandonment of public ranking of students by grades, much weaker effects. The filtration at the judicial appointment stage is particularly weak, though it has grown stronger as the process of appointment and confirmation has become increasingly arduous as a result of increased paperwork requirements and more frequent confirmation battles.
+
+I want to consider how judges are likely to respond to several familiar packages of external constraints. I begin with private judges (that is, arbitrators) and continue with judges in career judiciaries such as one finds in most countries other than those whose legal systems derive ultimately from England; elected judges, as one finds in most state courts in the United States; and federal trial judges, federal intermediate appellate judges, and finally U.S. Supreme Court Justices. In the next chapter I consider the likely effects of altering the judicial environment of federal judges by imposing term limits or raising salaries.
+
+Arbitrators are selected by or with the consent of the litigants. An arbitrator who gets a reputation for favoring one side in a class of cases—such as cases of employment termination, or disputes between investors and brokers or between management and unions—will be unacceptable to one of the parties in any future such dispute, and so the demand for his services will wither. We can therefore expect arbitrators to tend to “split the difference” in their awards—that is, to try to give each side a partial victory (and therefore a partial defeat).1 For this makes it difficult for parties on either side to infer a pattern of favoritism. Risk-averse disputants like the split-the-difference approach because it truncates both the upside and the downside risks of the dispute-resolution process and thus helps to differentiate arbitration from adjudication. Differentiation is essential to the demand for arbitration as an alternative to adjudication because adjudication is subsidized by the government and arbitration is not; the arbitrators’ fees, expenses, and facilities must be paid for by the disputants. The public subsidy of the courts places arbitrators at a cost disadvantage. One way to overcome it is to offer a service unavailable from the courts, and split-the-difference decision making is such a service.
+
+Arbitration may seem to offer something else attractive to risk-averse disputants: a lower error rate than trial by jury. Arbitrators, when they are not lawyers, are businesspeople who have experience relevant to the case at hand. And arbitrators who get a reputation for making mistakes will find it hard to get selected for future cases. This is not because disputants care about the competence of the dispute resolver as such but because the disputant with the stronger case will always veto the selection of an incompetent arbitrator, since an incompetent arbitrator is more likely than a competent one to rule for the party with the weaker case.
+
+The arbitrator’s accuracy advantage is at least partially offset, however, by the fact that arbitration awards are not appealable. The reasons are to reduce the cost of arbitration and thus the cost advantage of the courts, and to accelerate the final resolution of the dispute and thus create another advantage of arbitration over judicial dispute resolution. Arbitration awards can, however, be challenged in court, albeit on narrow grounds. This is another reason to think arbitrators more accurate than judges or jurors. Arbitrators whose awards are repeatedly vacated by the courts will lose business because judicial invalidation of an award creates added delay, uncertainty, and expense for the parties, who, remember, bear the entire cost of arbitration. Besides the absence of the normal right of appeal, the accuracy of arbitration is compromised by the fact that arbitrators usually do not write an opinion and so arbitration lacks that check on the errors to which intuitive decision making can be prone. Because the net accuracy advantage of arbitration over adjudication is unclear and may indeed be nonexistent,2 I am inclined to stress the split-the-difference character of arbitration in explaining the attractiveness of this adjudication substitute, as well as in elucidating the behavioral effects of privatizing judging.
+
+At the opposite end of what might be called the spectrum of judicial professionalism from arbitration are the career judiciaries found in almost all countries whose legal systems do not have an English origin. As the term “career judiciary” implies, they are systems manned by lawyers who make an entire career of being a judge.3 In contrast, most Anglo-American judges become judges only after a career in another branch of the legal profession. The average age of appointment to the federal district court has, since Harry Truman’s Presidency, varied from 49 to 53, and to the circuit court from 50 to 56.4 Obviously a lawyer first appointed to a judgeship in his 40s or 50s is embarking on a second career. Unlike our lateral-entry, second-career judiciary, a career judiciary is a part of a nation’s civil service. Appointment and promotion are by merit. Promotion is a critical feature of a career judiciary because a fresh law school graduate will naturally occupy the lowest rung of the judicial ladder and want to progress to more responsible positions as he gains experience. There is so little difference between a career judiciary and other professional civil services that the analysis of judicial behavior in a career judiciary should be like that of public bureaucratic behavior in general, which should in turn resemble, though not be identical to, the behavior of employees in a large business firm.
+
+The economic difference between an employee and an entrepreneur, in the sense of an independent businessperson, is that the employee does not sell his output; instead he rents his labor to the employer. The employer tries to value each employee’s output in order to make decisions on compensation and retention; but because the output of a firm is a team effort, only rough estimates are possible. That roughness gives rise to agency costs. (Those costs can also be a serious problem when the agent is an independent contractor, rather than an employer, of his principal, as in the doctor-patient setting.) The more costly it is to evaluate an employee’s output, the more inclined the employer will be to substitute evaluation of the employee’s inputs, such as credentials (as indicative of ability), hours, and care. It is a costly as well as an imperfect substitute, and on both accounts one expects there to be agency costs, for example in the form of shirking. Leisure and avoidance of hard work are common personal objectives, and an employer unable to monitor his employees’ performance must gamble that his criteria for hiring have succeeded in distinguishing between applicants who have a work ethic and those who do not.
+
+Because it is much harder to value the output of a public bureaucracy than that of a business firm and therefore to determine the value contributed by an individual bureaucrat, bureaucrats have a greater scope for pursuing their private objectives than employees of business firms have, and so agency costs are likely to be higher. Another difference arises from the ideological character of the missions of many government agencies, in contrast to the business firm’s single goal of profit maximization. The result is that agency costs in a government bureaucracy take the form not only of shirking but also of sabotage in the form of employees’ attempting to redefine the agency’s mission to coincide with their own ideology or, more commonly, to resist a redefinition of that mission. Many people hold “intense preferences” concerning the role of government in controversial areas, and “professionals seeking employment with the government are often attracted to a particular agency because of its stated mission.”5 Once ensconced in the agency, they may become powerful opponents of efforts to change the mission. Judges may have the same tendency, given the ideological dimension of adjudication—particularly career judges. Like any civil service, a career judiciary is, to an extent anyway, a self-perpetuating oligarchy, because promotion to the higher ranks in the judiciary will largely be determined by the judges currently occupying those ranks. This will make mission change more difficult than in a judiciary in which there is lateral entry (“fresh blood”) at high levels.
+
+Government is not wholly bereft of means for checking judicial agency costs, especially when dealing with a career judiciary. On the input side, credentials are one thing the government can look at in deciding whom to hire as a judge. Grades in law school are a proxy, though an imperfect one, for ability to perform well as a judge, which is one factor in the likelihood of a judge’s actually performing well, because people who have shown themselves able to do well at a particular type of work are likely to want to do that work. But note that those who ace tests of the skills important to the legalist dimension of judging may actually subvert legalism. Their skills will enable them to perceive its limitations and circumvent them through imaginative distinguishing of precedents and imaginative interpretation of statutory and constitutional texts.
+
+On the output side, some monitoring of judicial performance is possible. The quality of a judge’s performance is reflected, if often only dimly, by such observables as backlog, reversal rate (the monitoring of which limits a judge’s ability to minimize his backlog by excessive haste in deciding cases), judicial demeanor, and complaints by litigants and lawyers; we shall consider methods of judicial evaluation later in this chapter. Importantly, in a career judiciary the quality of a judge’s rulings is evaluated by his superiors in the judicial bureaucracy as a basis for deciding whether or how fast to promote him. Even when individual performance is difficult to measure, an ordinal ranking may be feasible—it may be obvious that Judge X is better than Judge Y, though how much better, and indeed whether either is good, may be unknowable.
+
+Bureaucracies minimize agency costs by laying down detailed rules for the bureaucrats to follow, since conformity to a rule is easier to verify than whether the bureaucrat is creative, imaginative, energetic, flexible, or forward-looking. Being able to verify compliance with performance norms is important not only for minimizing agency costs directly but also for enabling promotions to be based on objective criteria, which has an indirect effect on agency costs: judges compete for promotion by trying to please their superiors. It is no accident that legal systems that have career judiciaries and therefore rely on promotion decisions as a management tool tend also to rely on detailed legal codes to guide judges rather than on the looser standards characteristic of common law systems. (I do not know whether codification precedes, follows, or coevolves with a career judiciary.) A code that sets forth a legal rule with specificity makes it easy to determine whether the judge is applying the rule correctly. And the more precise and detailed the code, the less scope the judge has to indulge his political or other personal preferences. So sabotage is less of a danger, and the injection of politics into the evaluation and promotion of judges is also less likely.
+
+Another device found more in career judiciaries than in a U.S.-style judiciary is specialization, which enables a legal system to have more judges. This enables more of the responsibility for litigation to be shifted to judges from lawyers, because as specialists the judges know (almost) as much as the lawyers. Our generalist judges know less about any given field of law than they would if they were specialists (if they were labor judges, antitrust judges, etc.) and thus more naturally adopt an umpireal role. Specialization preserves variety in the long judicial careers found in career judiciaries (because the judges rotate among the specialized courts) but also facilitates evaluation of judges by their superiors because of each specialist judge’s narrower range. Specialization is thus a natural adaptation of a career judiciary.
+
+Emphasis on following rules as the condition for being promoted is a reason to expect a career judiciary to be legalist rather than pragmatic. Another reason is that promotion in a career judiciary, as in any other branch of the civil service, depends ultimately on performing to the satisfaction of one’s superiors, and it is difficult to see how the supervisors in a career judiciary would benefit in their own careers from having bold, intellectually challenging, experimentally inclined subordinates. A career judiciary is not like a business firm. There a division head’s hard-driving, innovative subordinates may produce increases in revenues and profits that will redound to his credit for having selected and encouraged those subordinates. A junior judge who discovered a new way of minimizing judicial backlogs would be commended, but that would probably be the limit of tolerated nonconformity. Yet no legal code, however detailed, can anticipate and provide for all the cases that arise; and so there is plenty of interest-balancing—which is to say, policy-oriented, legislative-type—adjudication even in civil law systems.6
+
+No doubt, as in any large organization, career judiciaries are rife with office politics (“influence activities,” as the organizational economists say). It would be naïve to think all promotions based strictly on merit. But office politics is likely to reinforce the inherent tendency toward conformist behavior as judges move up the career ladder.
+
+Because of these factors, the output of a career judiciary can be expected to exhibit low variance, to be of acceptably professional quality, and to be uncreative.7 One consequence is that law professors in nations that have career judiciaries tend to be regarded not merely as commentators on the law, as in Anglo-American legal systems, but as actual sources of law,8 the judges being impeded by the structure of their career from playing that role. We should also expect that with judges’ legislative role diminished in such systems, legislatures perform the legislative chores that judges perform in a common law system. Indeed, there is a deep incompatibility between common law decision making and a career judiciary. To entrust judges in a career system with common law rulemaking responsibilities would disrupt the system’s smooth operation by making the design and implementation of objective promotion criteria much more difficult. In addition, career judges, living a cloistered professional life, tend to be insufficiently worldly to be effective as occasional legislators. They know more about their specialized fields, but what they know is the legal doctrines, not the relation of those doctrines to the activities that the doctrines regulate.
+
+In contrast to the effect of promotion in constraining the behavior of judges in career judiciaries, promotion (as carrot, denial of promotion as stick) is of limited significance in an Anglo-American lateral-entry judiciary. Partly because judges in such a system are appointed at a mature age, partly because there are very few rungs on the judicial ladder in most Anglo-American judiciaries, and partly because previous judicial experience is not required for appointment to even the highest rung, most judges are not promoted at all. In the 1990s, the probability that a federal district judge would be promoted to the court of appeals was only 6 percent.9 And the salary and prestige differences between federal trial and appellate judges are modest, though the workload generally is somewhat lighter in the appellate court.
+
+Although all the current Supreme Court Justices were federal circuit judges previously, there are so few Justices, and they serve for such a long time, that the percentage of federal court of appeals judges who become Supreme Court Justices is minuscule. And it is growing ever smaller, since the number of circuit judges increases with the workload, while the number of Supreme Court Justices has long been frozen at nine and turnover on the Court is decreasing because of increased longevity. Furthermore, although merit is not irrelevant to promotion in the federal court system (even promotion to the Supreme Court,10 where political criteria dominate), it is not the dominant factor. In particular, unlike the case of a career judiciary, the higher judges do not decide who among the lower judges shall be promoted. Politicians decide. Politics thus excludes many judges from having any shot at promotion, while it grooms others for promotion who lack bright prospects for distinguished service as court of appeals judges. We must look elsewhere than promotion for the external constraints on the behavior of federal judges.
+
+The elected judiciaries of the states—and all but 12 of the states use some form of election to choose all or most of their judges—operate in an environment remote from that of both the U.S. federal judiciary and the career judiciaries of foreign nations. A judge who is elected for only a limited term and therefore must stand for reelection is subject, as a tenured federal judge is not, to a form of performance review. By the same token he has to be more sensitive to public opinion than a judge whose tenure does not depend on the electorate’s whim. Only a handful of cases, primarily those involving notorious crimes, will interest a significant portion of the electorate. But in those cases a systematic bias can be expected to creep into the judicial process. Consider a state that has capital punishment. Because only the most egregious murderers are eligible for such punishment, elected judges may lean against the defendants in such cases.11 They can also be expected to lean more than appointed ones in favor of a litigant who is a resident of the judge’s state, if the opposing party is a nonresident.12
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+The judge or judge aspirant in an elected judiciary has also to be able to raise money to conduct his electoral campaign. The donors are mainly lawyers who litigate in the court to which the candidate aspires. If the lawyers on both sides in the principal practice areas—such as lawyers for medical malpractice patients and lawyers for medical malpractice defendants—gave equal amounts of money to a judicial candidate, the situation would be much like that regarding arbitrators: the judge would have an incentive to steer a middle course in his rulings. But the stakes in particular practice areas are often systematically asymmetrical, and in that event an elected judiciary is likely to exhibit a systematic bias.
+
+Sometimes it should. If equality of campaign contributions induced judges to treat both sides of every legal issue equally—labor and management, class action plaintiffs and class action defendants, tort plaintiffs and insurance companies, debtors and debt collectors, and so forth—the balance struck by the law between the opposed groups would not change even if it should. But there is no reason to think that altering the law in the direction indicated by the ratio of campaign contributions pro and con the change would usually be an improvement. For even if an alteration would be efficient in the sense of generating greater benefits than costs, the potential beneficiaries might not be able to raise money to donate to judicial campaigns or otherwise exert political pressure as effectively as the potential losers. They might be a more diffuse group than their opponents and therefore afflicted by more serious free-rider problems. Such disparities in political effectiveness are of course common, as otherwise there would be a great deal more efficient legislation than there is.
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+But the fact that elected judges are less independent politically than appointed ones, especially appointed judges with lifetime tenure,13 is not necessarily a bad thing. This is not only because of the spur to effort that denial of job security imparts but also because the decisions of elected judges tend to be more predictable than those of appointed ones.14 This finding is consistent with—maybe even entailed by—the fact that elected judges are less independent. The independent judge is likely to have a more complex decision calculus because he does not want merely to put his finger to the political wind. And as long as the populist element in adjudication does not swell to the point where unpopular though innocent people are convicted of crimes, or other gross departures from legality occur, conforming judicial policies to democratic preferences can be regarded as a good thing in a society that prides itself on being the world’s leading democracy.
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+This is just to say that judicial independence is inverse to judicial accountability.15 If (perhaps a big if) the existence of an elected judiciary is taken to signify a legitimate democratic preference for aligning judicial and popular attitudes more closely than is possible in a nonelective system, then a judge who defies public opinion is not only unlikely to be reelected; he is, it can be argued, paradoxically a bad, even a usurpative, judge. The other side of this coin, however, is that the more uniform public opinion is, the more important judicial independence is for safeguarding minority rights.
+
+A further paradox is that although an elected judiciary is more democratic than an appointive one in the Anglo-American setting, it is not more democratic than a career judiciary in a legal system that makes heavy use of detailed legislative codes. The more detailed the code that a judge interprets and applies, the more likely he is to enforce the code “as written” rather than using it as merely the starting point for the development of legal standards. The democratic legislature is calling the legal shots and the judges really are just executing the decisions made by a democratic process.
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+One of the worst effects of an elected judiciary, besides the distorting effect of lawyers’ campaign contributions on the evolution of law, is that it greatly curtails the field of judicial selection. Most people are temperamentally unsuited for electoral politics and in any event not good at it, though they may have just the suite of abilities required in an excellent judge. The number of people who have both political and judicial talent is small. There may even be a degree of incompatibility between the two kinds of talent, or perhaps the two kinds of personality: judging, especially at the appellate level, is an introvert’s profession, politics an extrovert’s, although the number even of federal judges who held elected office before being appointed to the bench is considerable.16 Even if there is some incompatibility between political and judicial aptitudes, we cannot be certain that elected judges will on average be less able than appointed ones, because the former have the spur of competition. There is some evidence that appointed judges are abler.17 But there is contrary evidence in a recent study that finds, after correcting for other variables, that state supreme court justices receive more citations in judicial opinions from judges in other states the less secure their tenure is.18
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+No state judges have tenure as secure as that of federal judges. Life tenure, while it is likely to have a debilitating effect on effort, at the same time is a highly valuable perquisite and so increases the real income of federal judges relative to state judges. This in turn contributes to making a federal judgeship a more coveted job (as does the fact that federal law is more prestigious than state law) and so broadens the applicant pool. Life tenure would be profoundly inconsistent with the democratic pretensions of an elected judiciary, since, even if originally elected, an official with life tenure is no one’s idea of an official in a democracy. And state government is more democratic than our federal government—elections are more frequent, more officials are elected (the only executive officials elected at the federal level are the President and the Vice President, and of course no federal judges are elected), and states that allow referenda, initiatives, and recall (recall of officials—in effect, impeachment by voters) add a modicum of direct democracy to representative democracy.
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+Twenty states plus the District of Columbia are trying to help their electorates make better informed decisions about judicial candidates.19 Most of these judicial accountability programs are found in “Missouri Plan” states, where judges are appointed by a merit selection board and later stand for retention in elections in which there is no opposing candidate. Independent commissions publish evaluations of each judge standing for retention. The evaluations are based on interviews, on public comment and lawyers’ confidential comments, on statistical measures of judicial performance (such as the speed with which the judge decides cases), and even, in some states, on the judge’s opinions. Bar groups and newspapers also do evaluations of judicial candidates.
+
+When we turn from arbitrators, career judges, and elected judges to U.S. federal judges, we enter a realm in which the external constraints on judicial behavior are severely attenuated.20 The absence of good promotion opportunities is especially troublesome from the standpoint of trying to minimize agency costs. It may be impossible to measure individual performance yet be apparent who is the best performer, and so each ambitious employee works hard to prove that he is the best so that he will be promoted. Promotion need not be internal. There can be “promotion” to a job with another employer; civil servants are often “promoted” to a better job in the private sector. But this carrot too is largely missing from the federal judicial setting. A federal judge is (we shall see in the next chapter) unlikely to resign and enter the practice of law or some other line of work before he reaches retirement age. And when he reaches that age he is much more likely to take senior status—continuing to judge part-time yet receiving his full salary—than to retire from judging completely and take another job.
+
+The stick is as etiolated as the carrot. (And even in jobs in which there is a fat carrot, a stick is necessary so that underperformers incapable of responding to the offer of the carrot can be replaced.) Apart from the protection of tenure and the fact that the judicial salary is the same for all federal judges at the same level—there are no bonuses for outstanding performance or pay cuts for substandard performance—a judge’s ability to cash in on his judicial reputation by moonlighting as a teacher or lecturer is very limited. There are low caps on outside earned income other than book royalties, oddly classified as unearned income, like dividends or oil and gas royalties—in short, investment income. And though there are no caps on a judge’s income that is classified as unearned, only Supreme Court Justices land lucrative book contracts.
+
+The more secure judicial tenure is and hence the more difficult it is to control judges’ behavior, the more carefully candidates for judgeships should be screened. And in fact candidates for federal judgeships are very carefully screened. There is also lively competition for federal judgeships, which widens the field of selection and thus enables a finer mesh in the screen. The mature age of the candidates makes the screening still more effective. Because people have generally stable preferences and behavior has a strong habitual element, the older a person is when he is appointed to a job, the more predictable his performance in it will be. A lawyer who has performed successfully for many years in private or government law practice or in teaching and scholarship, demonstrating qualities of sobriety, good judgment, integrity, and other attributes that are important in a judge, is likely to continue to exhibit those qualities even when the carrots and sticks of a legal practice are withdrawn. It is like firing a gun: the position and rifling of the gun’s barrel impart direction to the bullet, but momentum takes over in guiding the bullet once it leaves the barrel, though wind may deflect it slightly from its initial path.
+
+Furthermore, the absence of strong incentives and constraints creates a space for weak ones to influence behavior. People care about their reputation even when it is not a potential source of tangible rewards. Rank orderings and prizes have psychological effects distinct from any career effects of being singled out from one’s fellows. One is apt to care even more about one’s reputation as a good worker if unable to point to a large income as proof of the quality of one’s work. Many federal district judges are sensitive about the quarterly statistics compiled by the Administrative Office of the U.S. Courts that show how many cases a judge has had under advisement for more than a specified length of time—so sensitive that a judge will sometimes dismiss a case at the end of a reporting period, with leave to reinstate it at the beginning of the next period, in order to improve his statistics. Yet there is no sanction, other than a very slight reputational one limited to the judges of one’s circuit, for having bad statistics.
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+District judges also do not like to be reversed.21 Even though a reversal has no tangible effect on a judge’s career if he is unlikely to be promoted to the court of appeals in any event—and little effect even then22—it can imply criticism rather than merely disagreement, and no one likes a public rebuke. Because judges are sensitive to both backlog and reversal, they will not, by making precipitate rulings, allow their backlogs to grow to inordinate length merely to reduce the probability of reversal, or their reversal rates to soar merely to eliminate their backlogs. So they are constrained to exercise a kind of care that is analogous to that of judges in a career judiciary.
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+District judges often have heavy dockets; a single judge in an urban district will have several hundred cases pending before him. Most of these will be settled or abandoned without the judge’s intervention. But enough will remain that require court action to induce the judge to attend to them lest his backlog become unmanageable. He cannot be cavalier in disposing of these cases, as then his reversal rate would rise to an embarrassing level. So backlog pressure keeps him working hard and reversal threat keeps him working carefully—though an alternative strategy is to push the parties to settle, since settlements reduce backlog without risk of reversal.23
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+I may have been too quick to dismiss effect on promotion as a factor in the behavior of a district judge. Although the tangible benefits of promotion to the court of appeals are very modest and the more cloistered, more intellectual character of appellate judging is not to the taste of everyone who seeks, is qualified for, and obtains a district judgeship, just the fact that appointment of a district judge to the court of appeals is a “promotion” to a “higher” court makes it attractive to many district judges. Moreover, that only 6 percent of district judges are promoted exaggerates the odds against promotion. Many district judges are too old to have realistic prospects of being promoted, would refuse promotion, or for political reasons are extremely unlikely to be promoted. Suppose, though this is just a guess, that only 20 percent of district judges had a chance of being promoted. Then each of the judges in that pool would have a one-third chance (.20 ÷ .06 = .33) of promotion, and those might be short enough odds to induce a judge to do whatever he could to rise within the pool. Such a judge would have a greater incentive than most other district judges to exert himself to be the best judge he could be, because merit is a factor in promotion to the court of appeals. But it is not the only factor. The promoting authorities—the President and the Senate—are politicians, and angling for their approval may influence the small fraction of the judge’s decisions that might interest politicians, making those decisions more political than they would otherwise be.
+
+Appellate review might be thought an effective method of controlling judicial agency costs.24 The problem is that appellate judges, whether they are court of appeals judges or Supreme Court Justices, are not principals; they are agents enjoying great independence from their principal, the government of the United States. Appellate review in the federal system operates to conform the behavior of the district judges to that of the appellate judges rather than to reduce agency costs.
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+Because a federal district judge has more decisional freedom than judges in career judiciaries, personal factors—including the kind of intellectual laziness that consists of acting prematurely on intuition rather than (also) on analysis and evidence, and even the delights of tormenting the lawyers who appear before the judge—are likely to play a larger role in his behavior than in that of his counterparts in career judiciaries.25 Perhaps especially tormenting the lawyers, because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.
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+The environment of federal court of appeals judges differs in four main respects from that of district judges. First, the dual constraints imposed by backlog pressure and reversal threat are attenuated. The caseloads of circuit judges are lighter than those of district judges and so the threat of an unmanageable caseload looms less ominously. And once a case has been argued there will be no further activity in it until it is decided, which means that the size of the backlog does not affect the judge’s workload, as it does in district courts. In addition, so few court of appeals decisions are reviewed by the Supreme Court (currently less than 1 percent) that the threat of reversal cannot be much of a constraint on court of appeals decision making. Also, many of these reversals reflect ideological differences, rather than error correction and therefore implicit criticism. That is less true of reversals of district court decisions.
+
+Second, because appellate judges sit in panels rather than by themselves, there is a premium on cooperative behavior.26 The downside is the risk of factions and (though I believe this is quite rare in the federal judiciary) of logrolling (vote trading). Legislators can logroll with a good conscience because they are representatives and logrolling enables them to maximize their constituents’ welfare. Judges cannot offer such a justification. So logrolling violates the rules of the judicial game, but with the qualification that the most persuasive explanation for the panel-composition effect discussed in chapter 1 involves something akin to logrolling.
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+Third, federal court of appeals judges have a greater opportunity to influence the law, on the model most famously of Learned Hand, than federal district judges do. Appellate adjudication focuses far more than adjudication at the trial level on general issues of law rather than on factual or procedural issues specific to the particular case. And not only does the Supreme Court review only a minute percentage of court of appeals decisions, but the cases it does review are not a representative sample of judicial activity in the different fields of federal law. The Court is heavily invested in constitutional law and leaves many other fields largely to the courts of appeals to shape.
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+Many court of appeals judges are not ambitious to influence the direction in which the law will evolve and do not seek to acquire the kind of reputation that judges such as Learned Hand and Henry Friendly acquired. And because the risk of reversal is small, we can expect unambitious appellate judges to weight leisure more heavily, and to vote their personal preferences more often, than district judges do. The risk of reversal is much greater, and the reward for creative legal thinking much less, at the district court level.
+
+Appellate judges in our system often can conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents. Yet the doctrine of precedent exercises some constraint even on the minority of appellate judges who are ambitious to place their own distinctive stamp on the law.27 A judge’s influence depends on his decisions’ being treated as precedents by other judges. If he is cavalier about adhering to precedent in his own decisions, he weakens the doctrine of precedent and hence the likelihood that his own decisions will be followed by other judges.28 A judge who notices that other judges do not adhere to precedent will wonder why he should bother to do so. And if most of the judges on the court favor adhering to precedent, they will (if necessary by en banc proceedings, which enable a panel decision to be reversed) rein in the mavericks.
+
+But probably the main force behind the doctrine of precedent is that in a system of case law, adherence to precedent is necessary to create the kind of stability that one would have in a system in which law was codified. In a code system it would not matter greatly if judges did not adhere to precedent, because decisions would not create rules but merely apply preexisting rules—the rules laid down in the code. So it is no surprise that judicial decisions have much less force as precedents in such systems than in our system.29 But not zero force. The influential civil law doctrine of jurisprudence constante accords precedential significance to a line of consistent precedents, though not, as in common law systems, to the first precedent.30 Thus the civil law judge in the second case to arise concerning some legal issue will give no weight to the decision in the first case as authority. But if he and a few other succeeding judges agree with the first decision, and none during this period of crystallization of judicial views disagrees, the set of decisions will acquire precedential authority.
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+Our judges are strongly motivated to adhere to precedent, not only because they want to encourage adherence to the precedents they create, but also—and this is more important to most judges—because they want to limit their workloads. Adherence to precedent does this both directly, by reducing the amount of fresh analysis that the judges have to perform, and indirectly, by reducing the number of appeals, since the more certain the law, the lower the litigation rate. The doctrine of precedent has the further value, which I mentioned in chapter 1, of making judges more thoughtful about the consequences of their decisions, although this factor is in some tension with the time-saving benefits of precedent.
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+Another distinctive subset of court of appeals judges consists of those who by reason of ideology, prominence, political connections, race, gender, ethnicity, or other factors have a real shot at being promoted to the Supreme Court. (This corresponds to the pool of district judges who have a good shot at being promoted to the court of appeals.) With rare exceptions, the probability that a given court of appeals judge, however well-placed he seems to be in the competition to be appointed to the Supreme Court, will actually be appointed is low because there are so many aspirants for so few vacancies and so many unpredictable political elements in appointments to the Court. That is why I said “real” shot rather than “good” shot (some district judges really do have a good shot at promotion to the court of appeals). But if a judge attaches enormous value to being a Supreme Court Justice, the expected utility of such an appointment (most simply, the utility of the appointment multiplied by its probability) may influence his behavior. After Robert Bork’s nomination to the Supreme Court failed, in part because of his extrajudicial writings (the largest component of the “paper trail” that did him in), the publication rate of court of appeals judges declined precipitately.31 Moreover, his resignation, and much later that of Michael Luttig, both after their once-bright chances of appointment to the Supreme Court had faded, suggest that some judges may be willing to invest years in a job that does not much grip them if they think it will give them a shot at a Supreme Court appointment.
+
+The fourth distinction between circuit and district judges is that professional criticism of judicial decisions can be expected to place a sharper check on extravagant exercises of judicial discretion at the appellate level than at the trial level. The main public product of appellate judges is judicial opinions, which are self-contained (or at least appear to be self-contained) texts readily accessible to professional critique. But we shall see in chapter 8 that professional criticism of judicial opinions is so heavily discounted by most judges as to have little influence on their behavior. And anyway, so mesmerized are academic commentators (including students who write for law reviews) by Supreme Court decisions, and so numerous are the decisions of the courts of appeals, that the fraction of court of appeals decisions that receives academic notice is slight.32 The irony is that Supreme Court Justices pay even less attention to academic criticism than lower-court judges do, though more to the reactions of legislators, the general public, and the media.
+
+Of potential significance in constraining federal judicial behavior is the development, mainly by law professors but also by court administrators, of quantitative criteria of federal judicial performance. These overlap with the more eclectic evaluations, mentioned earlier, of elected state judges. Those evaluations, in turn, resemble the evaluations of federal magistrate judges and bankruptcy judges, who are appointed (magistrate judges by the federal district courts, bankruptcy judges by the courts of appeals) for fixed, renewable terms. Because district judges and court of appeals judges have life tenure, evaluations of them have less bite, but conceivably could shame some of them into performing better and, probably more important, provide information on the kind of credentials that accurately predict judicial performance.
+
+Quantitative criteria of judicial performance are less likely than the common verbal criteria—“restrained,” “activist,” “scholarly,” “result oriented,” and the rest—to be dismissed by judges as politically motivated. They also are more economical, because statistics can compact vast amounts of information as discursive critique cannot. But a number of qualifications must be noted. One is that the criteria of judicial performance should not be uniform across courts and judges. I noted earlier that criteria such as backlog and reversal rate should play a larger role in the evaluation of district judges than of circuit judges. And even good performance criteria may not be useful for determining whether a judge should be promoted. (I will explain this shortly.)
+
+Any numerical ranking system presents a danger that the competitors will be able to game it,33 as I noted with respect to backlog statistics. And as illustrated by such criteria for evaluating the performance of circuit judges as citations by judges in other circuits,34 or the more inclusive quantitative ranking scheme developed by Professors Choi and Gulati,35 the choice of criteria depends on assumptions about the attributes of an outstanding appellate judge. The criteria used so far measure primarily influence and prominence. Besides out-of-circuit citations (the idea behind this measure being that because citing a case in another circuit is optional—a case is not authoritative outside its circuit—an out-of-circuit citation is an unforced acknowledgment of the helpfulness of the cited opinion), one of Choi and Gulati’s performance criteria is the number of times a judge is mentioned by name in opinions.36 Another study ranks judges by how many of their opinions are published in casebooks.37 Such criteria implicitly treat judicial creativity as the only, or at least the most important, attribute of a circuit judge. Legalists will blanch at this implication.
+
+A related concern is that, as critics of U.S. News & World Report’s rankings of law schools emphasize, numerical rankings are questionable when they are multidimensional (composite). The weighting of the different dimensions influences the ranking—and is likely to be arbitrary.38 The problem is as serious with respect to the ranking of judges as it is with respect to the ranking of law schools, because in neither case is there agreement on the weights to be applied to the different factors. If you happen to think lucidity an extraordinarily important virtue in a judicial opinion, this will affect your weighting relative to that of an observer who thinks that explaining carefully to the losing party why he lost, or discussing even minor issues, or stating the facts in comprehensive detail, or avoiding reversal by never going out on a limb is a more important virtue in a judicial opinion. Not all competent students of the federal court of appeals would place creativity high on the scale of judicial virtues; some would decry the “creative” judge as a destabilizing force.
+
+Also, ranking is an ordinal rather than a cardinal evaluation tool. It does not indicate differences in quality between ranks. If those differences are small, even large rank differences may not signify large differences in the quality of judicial performance. Ranking judges disvalues diversity of judicial approaches, styles, and perspectives by simplifying the criteria of quality; it is like a college’s basing admission decisions solely on the applicants’ grades.
+
+Choi and Gulati do not use reversal rate as a performance criterion for circuit judges. That may seem a surprising omission. But reversal rate and creativity are likely to be positively correlated, since a judge who is creating precedents rather than just following them can be expected to be reversed more often than an unadventurous judge,39 just as home-run hitters tend to strike out more often than singles hitters. And the effect of reversals is captured automatically in one of the performance criteria that Choi and Gulati do use—frequency of citation to a judge—because a decision is unlikely to be cited after it has been reversed. There is, however, a case for using the Supreme Court’s occasional summary reversals as a measure of the performance of courts of appeals, because such reversals are more likely to rest on a determination that the lower court clearly erred than on a disagreement over the resolution of an arguable issue. A similar if slightly weaker case can be made for using unanimous reversals by the Supreme Court as a measure of errors by the lower courts. A study using both measures supports the widespread impression of the Ninth Circuit as the worst-performing federal court of appeals.40
+
+Apart from concerns about the accuracy or utility of the specific metrics that are available for evaluating judges, we need to be concerned with what sociologists call “reactivity”—the propensity of “individuals [to] alter their behavior in reaction to being evaluated, observed, or measured.”41 Ranking magnifies differences by implying that, as in an athletic contest, the important thing is not how well you perform in absolute terms but how well you perform relative to others. This in turn may induce the ranked to change their behavior in order to move up the ladder. That is distinct from “gaming” in the sense of manipulating statistics, though similarly motivated. Judges tend to be competitive people, so efforts to rank them, whether directly or by means of measures that being quantitative are readily converted to ranks, could impair judicial quality unless the measures gauge performance accurately; and they may not.
+
+This is the gravest problem with subjecting judges to performance measures. Many important judicial activities go on below the radar, in the sense that it would be difficult to develop performance measures for them. Think of such activities of appellate judges as carefully reading and commenting on the circulated draft of another judge on the panel, supervising the preparation of unpublished orders (as distinct from published opinions) that dispose of cases that are not orally argued, deciding motions, screening appeals to determine which should be orally argued and for how long (in circuits that use screening panels, as most do), carefully reading all petitions for rehearing, serving on court committees and committees of the Judicial Conference of the United States, and serving as chief judge of their courts. If these activities cannot be subjected to meaningful performance measures, the use of performance measures for those judicial activities that can feasibly be measured may induce judges to slight the unmeasured activities in order to increase their rank in the evaluative hierarchy.
+
+I conclude that it would be premature to embrace performance measures as a method of incentivizing or constraining judges. It would be downright absurd to suggest (nor does anyone suggest) that they should be used as the basis for awarding bonuses to judges who score well on them!
+
+When we turn from the environment of the federal courts of appeals to that of the Supreme Court, the picture changes once again. Reversal risk falls to zero, but there are still constraints—from precedent; from the possibility of political retribution in the form of “Court-curbing” legislation42 or constitutional amendments (in the case of constitutional decisions) nullifying an unpopular decision;43 from low-level harassment by congressional budget committees;44 and from the prospect of the appointment of new Justices, when vacancies arise, who will be antagonistic to the existing ones because they are selected in the hope that they will alter the Court’s direction. Indeed, because of the high visibility of the Court’s decisions, the political constraints on the Justices are greater than those that operate at the lower levels of the federal judiciary. The public is barely aware of most decisions of lower courts. But it is aware of many Supreme Court decisions, and its response to them, if sufficiently intense and widespread, can precipitate a political challenge to the Court.45
+
+The combination of those constraints with the lack of guidance that conventional legal materials provide in novel cases, which bulk disproportionately large in the Court’s docket, makes the Supreme Court truly a political court,46 so that analysis of the behavior of the Justices, especially in constitutional cases, should parallel that of the behavior of conventional political actors.47 Not perfectly, because a rational Justice will give greater weight to precedent than a legislature would do48 and will be freer from effective threats of political retaliation than a legislator who was not a lame duck would be. But given the Court’s inescapably political character, it is not a valid criticism of a Supreme Court Justice that he (or she—Justice O’Connor being widely regarded as the most politically astute of recent Justices) has and uses political smarts. Indeed, it is a legitimate criticism of the current Court that the aggregate political experience of its members is zero.
+
+This analysis places a cloud over Choi and Gulati’s proposal49 that Supreme Court Justices be chosen by a “tournament” of federal court of appeals judges.50 Just as the best appellate judge in a foreign career judiciary might very well not be the best choice for a U.S. court of appeals, so a court of appeals judge might not be the best choice for the Supreme Court.51 One must not forget the “Peter Principle”—the tendency to promote a person beyond the level of his competence.
+
+The best way to study the tournament proposal would be to apply Choi and Gulati’s criteria to the federal court of appeals judges who have become Supreme Court Justices and see whether the criteria are predictive of the judges’ performance as Justices.52 (The criteria can easily be extended to judges of other courts, to bring Holmes, Cardozo, O’Connor, and others who came to the Court from state judgeships into the sample tested.53) But this would require developing good performance measures for Supreme Court Justices.
+
+The difficulty of developing judicial performance measures underscores the weakness of the external constraints on the behavior of federal judges. That weakness, however, is the obverse of judicial independence, and there is some evidence that this is a good swap—that the Anglo-American–style judiciary, which maximizes independence by minimizing external constraints (at least in the federal judiciary), is more conducive to economic growth than the European-style career judiciary.54 But note the emphasis on “some”; the evidence is not very strong.55 As pointed out by Paul Mahoney,56 the hostility of the Anglo-American political culture to government bureaucracy may be the cause of both the nonbureaucratic structure of the Anglo-American judiciaries57 and the greater hospitality of the political culture to commercial endeavors. Moreover, although an independent judiciary is uncontroversially a social good (as I noted in chapter 2), there is a difference between an independent judiciary and independent judges. A career judiciary can in principle be as independent of the other branches of government as Anglo-American judges are even if the career judges are less independent from their judicial superiors. But this is in principle, and perhaps not in actuality. Common law systems give judges the power to make law. This makes them more powerful than civil law judges, and power augments independence.58 Our judges may have a legislative role because they are trusted by the other branches of government—or perhaps they are trusted because they are independent.
+
+If the principal effect of a career judiciary is, therefore, to shift legislative power from the judges to the legislators, this need not reduce the quality of a nation’s laws if the nation has a parliamentary system, unlike our presidential system. In a parliamentary system, politics is a career, parties are disciplined, and the legislature is integrated with the executive and effectively unicameral. Lateral-entry judges, having a wider experience of the world outside the courtroom than career judges, are better equipped to play the occasional-legislator role. But they may not be better legislators than the official legislators in a parliamentary system. The latter may have the time, the experience, the discipline, and the streamlined procedures to enable them to perform the legislative functions that judges perform in our system because our legislative processes are so cumbersome and impacted. Legal codes in a parliamentary system of government may take the place of case law in our system.
+
+The English created their independent judiciary in the early eighteenth century, and our judicial system derives from it. In point of weakness of external constraints, the English judiciary and our federal judiciary are similar. Yet it was not always so. The English worried a great deal about judicial discretion and employed three techniques for minimizing it. One was a rather rigid adherence to precedent (though softened by “distinguishing,” of which more in subsequent chapters). Until 1968, English judges adhered to stare decisis (standing by what has been decided—in other words, the doctrine of precedent) in almost a literal sense that enabled a judge to say, “Look, I am not being willful. I do not make law. I simply follow what has been laid down by previous judges.” This placed the law on the weak foundation of the first generation’s willful judges. But they were not really willful because they had no choice but to be creative—there were no precedents for them to follow.
+
+Transposed to the U.S. constitutional arena, rigid adherence to precedent would enable a Supreme Court Justice to say, “I have to interpret two things. I have to interpret the document itself, which is old and vague, but fortunately I have as well the easier task of interpreting decisions by my predecessors, to which I am bound, and so mine is a genuinely interpretive, rather than a creative or innovative or discretionary, judicial activity.” Our Justices cannot say this because they feel free to overrule previous decisions. They have to have that freedom because the Constitution is so difficult to amend to adapt it to changed conditions or fresh insights. There are decisions that are seen as profoundly wrong-headed from the outset and decisions that while defensible when made have been rendered obsolete by changes in the social, political, or economic environment. The latter decisions can be distinguished in subsequent cases; the former not, and so must be overruled to prevent them from continuing to do mischief. Rigid adherence to precedent would magnify the consequences of a mistaken or deeply regretted decision enthroned as a precedent. It would also exert great pressure on judges to write judicial opinions very narrowly so that they controlled as little of the future as possible.59 This would reduce the value of precedent as a source of guidance in future cases. The Justices would have to decide more cases in order to create a rule.
+
+The second device the English used to rein in judges was the principle of “orality,” which meant that judges had to do everything in public. They had no staff, read no briefs (there were no briefs), knew nothing of the case when it was presented to them, and did not discuss the case with each other at any stage in the litigation. Oral argument in an appeal might last a week because the judges would be sitting at the bench reading the statutes, cases, and other authorities handed up to them by the lawyers to read on the spot. The idea was that since the judges were doing nothing that was not visible to the public, the public could monitor their performance effectively. Britain has had to abandon this system because of workload pressures, as well as having to abandon its severe conception of stare decisis.60
+
+The third and most important constraint on English judges (though this too is eroding61) was that the judges were picked from a tiny, homogeneous social and professional sliver of the nation. They were the senior barristers, and one was unlikely to become a barrister unless one was a member of the upper class, because it was almost impossible to earn a living until one had established oneself in practice, as firms of barristers were forbidden. Judges who come from the same social and professional background are likely to think alike.62 So when they disagree they will be arguing from shared premises. Arguments from shared premises can lead to objectively verifiable conclusions—which is not to say that the conclusions are correct. Conclusions that follow logically from incorrect premises have no warrant of correctness.
+
+The pool from which our judges are chosen is not homogeneous, though neither is it fully representative; it is limited as a practical matter to upper-echelon lawyers, almost all of whom are well-socialized, well-behaved, conventionally minded members of the upper middle class. The other limitations on judicial discretion that the British invented and long applied are also missing from our system. Nor do we have a career judiciary. In sum, at the federal level at least, we lack a good set of checks on judges’ exercising a degree of discretion that frightens many people, especially those who lose out when the exercise of discretion goes against them. Hence our confirmation battles. (There is no confirmation of British judges.) It is one of the few occasions for a populist injection into the process of federal judicial selection.
+
+Yet the framers of the Constitution did build in checks on federal judicial power. This is something that federal judges, taking judicial independence a bit too seriously, tend to forget—that the Constitution limits every branch of the federal government by placing every branch in a competitive relation with every other. The Constitution gives the Supreme Court an appellate jurisdiction but subjects that jurisdiction to such exceptions and regulations as Congress may decide to impose. It gives Congress control over the budget of the federal courts, including judicial salaries (though Congress cannot lower them), which is important because it would be dangerous for any branch of government to have complete control over its resources. Congress determines the number of judges, and could show its displeasure with Supreme Court decisions by increasing the number of Justices if it thought the new appointments would alter the political balance on the Court. Franklin Roosevelt tried to persuade Congress to do that in the 1930s. He failed, but earlier efforts had succeeded.63 The Constitution creates strong protections for the right to a jury trial even in civil cases; this limits judges’ power by dividing judicial power between them and the citizenry. Judges are also denied the power to enforce their judgments—that is an executive branch prerogative. And they can decide only cases that someone chooses to file; because Article III of the Constitution limits the judicial power of the United States to cases or controversies, judges cannot declare a statute unconstitutional as soon as it is enacted but must wait for a case challenging its constitutionality. And without directly challenging the courts Congress often can use its legislative authority to pull the sting of constitutional rulings that it does not like, as by defunding abortion clinics, starving legal aid clinics and criminal defenders of funds, curtailing statutory procedural rights, and increasing the severity of criminal penalties, which encourage criminal defendants, in exchange for a sentencing break, to waive the constitutional procedural rights bestowed on them by the Supreme Court. Thus, powerful as the Court is, it does not control enough of the levers of power to overawe the other branches of government even in areas in which it has been particularly aggressive in creating new rights in the name of the Constitution. Its bark is worse than its bite.64
+
+Alexander Hamilton in Federalist No. 78 claimed that the independence of federal judges would be harmless for a different reason, a reason based on internal rather than external constraints: they would be exercising judgment and not will. Hamilton was not naïve; was he being disingenuous? Not necessarily. The Bill of Rights postdated the original Constitution of 1787 and the publication of the Federalist Papers. The 1787 Constitution created few justiciable rights. The Bill of Rights (and later the Fourteenth Amendment) created a host of such rights in language so vague that Learned Hand thought most of its provisions should be nonjusticiable because judges had used them to create constitutional law out of whole cloth.65 Yet even before the Bill of Rights was promulgated, concern had been expressed, notably by the pseudonymous anti-federalist “Brutus,” against whom Hamilton was writing, that the Justices of the Supreme Court would become tyrants by deciding cases in accordance with their conception of the “spirit” of the Constitution.66 With the Constitution and its amendments becoming ever less directive as the passage of time transforms the conditions and understandings on which they were based, there is little to limit judicial discretion in constitutional law except confirmation battles and other manifestations of public opinion, such as the wave of indignation set in motion by the Kelo decision, which I discuss in chapter 10. These and the other external constraints do set bounds, but they are capacious bounds.
+
+
+1. “Courts and juries are viewed as more likely to adhere to the law and less likely than arbitrators to ‘split the difference’ between the two sides, thereby lowering damages awards for plaintiffs.” Armendariz v. Found. Health Psychcare Services, Inc., 6 P.3d 669, 693 (Cal. 2000). See Donald Wittman, “Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis,” 5 American Law and Economics Review 61, 81 (2003); Estelle D. Franklin, “Maneuvering through the Labyrinth: The Employers’ Paradox in Responding to Hostile Environment Sexual Harassment—A Proposed Way Out,” 67 Fordham Law Review 1517, 1565 (1999); Robert Haig, “Corporate Counsel’s Guide: Legal Development Report on Cost-Effective Management of Corporate Litigation,” in Federal Pretrial Practice, Procedure and Strategy, 610 PLI/Lit 177, 186–187 (PLI [Practicing Law Institute] Litigation and Administrative Practice Course Handbook Series No. 610, 1999).
+
+2. Theodore Eisenberg and Geoffrey P. Miller, “The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held Companies,” 56 DePaul Law Review 335 (2007).
+
+3. See, for example, Martin R. Schneider, “Judicial Career Incentives and Court Performance: An Empirical Study of the German Labour Courts of Appeal,” 20 European Journal of Law and Economics 127 (2005); Nicholas L. Georgakopoulos, “Discretion in the Career and Recognition Judiciary,” 7 University of Chicago Law School Roundtable 205, 205–206 (2000); J. Mark Ramseyer and Eric B. Rasmusen, “Judicial Independence in a Civil Law Regime: The Evidence from Japan,” 13 Journal of Law, Economics and Organization 259 (1997).
+
+4. Albert Yoon, “Love’s Labor’s Lost? Judicial Tenure among Federal Court Judges: 1945–2000,” 91 California Law Review 1029, 1047–1048 n. 70 (2003).
+
+5. Ronald N. Johnson and Gary D. Libecap, The Federal Civil Service System and the Problem of Bureaucracy: The Economics and Politics of Institutional Change 167–168 (1994). See also John Brehm and Scott Gates, Working, Shirking and Sabotage: Bureaucratic Response to a Democratic Public (1997); Lael R. Kaiser, “The Determinants of Street-Level Bureaucratic Behavior: Gate-Keeping in the Social Security Disability Program” (National Public Management Research Conference, Georgetown University, 2003).
+
+6. James L. Dennis, “Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent,” 54 Louisiana Law Review 1, 8–14 (1993). The author is a justice of the Louisiana Supreme Court. Louisiana is the nation’s only civil law state.
+
+7. “[The civil law judge] is a kind of expert clerk. He is presented with a fact situation to which a ready legislative response will be readily found in all except the extraordinary case. His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The whole process of judicial decision is made to follow the formal syllogism of scholastic logic. The major premise is in the statute, the facts of the case furnish the minor premise, and the conclusion inevitably follows.” Richard O. Faulk, “Armageddon through Aggregation? The Use and Abuse of Class Actions in International Dispute Resolution,” 37 Tort and Insurance Law Journal 999, 1011 (2002), quoting John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 36 (2d ed. 1985). See also Merryman, “The French Deviation,” 44 American Journal of Comparative Law 109, 116 (1996); J. Mark Ramseyer, “Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan v. Duff & Phelps, Inc.,” 120 Harvard Law Review 1199, 1205–1206 (2007); Georgakopoulos, note 3 above, at 212.
+
+8. See, for example, Eugen Ehrlich, Fundamental Principles of the Sociology of Law 365 (Walter L. Moll trans. 1936 [1913]). Chapter 12 of Ehrlich’s book contains an interesting discussion of the contrast between the common law and civil law systems.
+
+9. Daniel Klerman, “Nonpromotion and Judicial Independence,” 72 Southern California Law Review 455, 461 (1999).
+
+10. Lee Epstein et al., “The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court,” 32 Florida State University Law Review 1145 (2005).
+
+11. Herbert M. Kritzer, “Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-first Century,” 56 DePaul Law Review 423, 461–464 (2007); Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding between the Bill of Rights and the Next Election in Capital Cases,” 75 Boston University Law Review 759, 792–796 (1995). Consistent with this conjecture, the shorter the average term of judges in a state, the more likely they are to impose the death penalty. Paul R. Brace and Melinda Gann Hall, “The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice,” 59 Journal of Politics 1206, 1221, 1223 (1997). In another article, Hall finds that there is not much difference in behavior between elected and appointed state judges, but that the ideological distance between a judicial candidate and the electorate, and an increase in the murder rate while he was a judge, do have the predicted influence on judicial elections, especially partisan judicial elections. “State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform,” 95 American Political Science Review 315, 325–327 and tabs. 9–11 (2001).
+
+12. For evidence, see Eric Helland and Alexander Tabarrok, “The Effect of Electoral Institutions on Tort Awards,” 4 American Law and Economics Review 341 (2002); Tabarrok and Helland, “Court Politics: The Political Economy of Tort Awards,” 42 Journal of Law and Economics 157 (1999). The first-cited article, incidentally, in finding that this effect is not operative in federal diversity cases, provides support for the traditional argument that the diversity jurisdiction protects nonresidents against bias in favor of residents of the state in which the case is litigated.
+
+13. Additional evidence of this is presented in Brace and Hall, note 11 above. See also references in F. Andrew Hanssen, “Is There a Politically Optimal Level of Judicial Independence?” 94 American Economic Review 712, 717 (2004).
+
+14. F. Andrew Hanssen, “The Effect of Judicial Institutions on Uncertainty and the Rate of Litigation: The Election versus Appointment of State Judges,” 28 Journal of Legal Studies 205 (1999).
+
+15. Eric Maskin and Jean Tirole, “The Politician and the Judge: Accountability in Government,” 94 American Economic Review 2034 (2004); Stephen B. Burbank and Barry Friedman, “Reconsidering Judicial Independence,” in Judicial Independence at the Crossroads: An Interdisciplinary Approach 9, 14–16 (Burbank and Friedman eds. 2002).
+
+16. In a large sample of judges, 27 percent of the federal judges and 28 percent of the state judges had held an elected office; 40 percent and 35 percent, respectively, had held a political office that was either elected or appointed; and 11 percent and 10 percent, respectively, had sought political office unsuccessfully. Louis Harris and Associates, Inc., “Judges’ Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases,” 69 Boston University Law Review 731, 755–756 and tab. 9.1 (1989). This no doubt reflects the fact that politicians—the President and the Senators—appoint federal judges, and politicians know other politicians.
+
+17. See, for example, Kermit L. Hall, “Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850–1920,” 1984 American Bar Foundation Research Journal 345 (1984).
+
+18. Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, “Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary” (New York University, Duke University, and University of Chicago law schools, Aug. 2007). On the validity of “other states” citations as a performance measure, read on. The appointed judges receive more citations per opinion, but the elected judges write more opinions, and the relative number of opinions is greater than the relative number of citations per opinion. The greater amount of opinion writing by elected judges may be due to the fact that the number of opinions, though obviously a crude measure of value of output, is apparently a talking point in judicial election campaigns. See “Pemberton Tops in State for Appeals Opinion Productivity” (campaign ad for Texas appellate judge), www.bobpemberton.com/2006/09/20/appeals_opinion_productivity/ (visited Aug. 18, 2007).
+
+19. Rebecca Love Kourlis and Jordan M. Singer, “Using Judicial Performance Evaluations to Promote Judicial Accountability,” 90 Judicature 200 (2007). See id. at 204 for a good summary of the different state programs.
+
+20. I confine my discussion to Article III judges—district judges, court of appeals judges, and Supreme Court Justices. There are other federal judicial officers, primarily magistrate judges, bankruptcy judges, and administrative law judges. I discuss magistrate judges and bankruptcy judges briefly in chapter 6.
+
+21. David A. Hoffman, Alan J. Izenman, and Jeffrey R. Lidicker, “Docketology, District Courts, and Doctrine” (Temple University, May 21, 2007); William J. Stuntz, “The Pathological Politics of Criminal Law,” 100 Michigan Law Review 505, 541 (2001); Evan H. Caminker, “Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decision Making,” 73 Texas Law Review 1, 77–78 (1994); Richard S. Higgins and Paul H. Rubin, “Judicial Discretion,” 9 Journal of Legal Studies 129, 130 (1980).
+
+22. Higgins and Rubin, note 21 above, find that a district judge’s reversal rate has no effect on his chances of promotion. Notice, though, that if district judges are completely insensitive to reversal, appeals can actually weaken their motivation to do a good job; they know their errors will be corrected without their being punished for having made them. Aspasia Tsaoussis and Eleni Zervogianni, “Judges as Satisficers: A Law and Economics Perspective on Judicial Liability” 10 (ALBA Graduate Business School, Athens, Greece, and University of Piraeus, Greece, Sept. 2007).
+
+23. On district judges’ interest in promoting settlement, see Hoffman, Izenman, and Lidicker, note 21 above.
+
+24. See Steven Shavell, “The Appeals Process and Adjudicator Incentives,” 35 Journal of Legal Studies 1 (2006).
+
+25. See, for example, Steven Lubet, “Bullying from the Bench,” 5 Green Bag (2d ser.) 11 (2001).
+
+26. Harry T. Edwards, “The Effects of Collegiality on Judicial Decision Making,” 151 University of Pennsylvania Law Review 1639 (2003).
+
+27. Their ambition—which may not be to influence the law but may instead be to become a Supreme Court Justice or just to be well regarded—is manifested in the ferocity of their competition to obtain the ablest law clerks. On that competition, see Christopher Avery et al., “The Market for Federal Judicial Law Clerks,” 68 University of Chicago Law Review 793 (2001); Avery et al., “The New Market for Federal Judicial Law Clerks,” 74 University of Chicago Law Review 447 (2007).
+
+28. Eric Rasmusen, “Judicial Legitimacy as a Repeated Game,” 10 Journal of Law, Economics and Organization 63 (1994).
+
+29. See, for example, Eva Steiner, French Legal Method 80–81 (2002); Dennis, note 6 above, at 14–17.
+
+30. See, for example, Vincy Fon and Francesco Parisi, “Judicial Precedents in Civil Law Systems: A Dynamic Analysis,” 26 International Review of Law and Economics 519 (2006); Dennis, note 6 above, at 15.
+
+31. S. Scott Gaille, “Publishing by United States Court of Appeals Judges: Before and after the Bork Hearings,” 26 Journal of Legal Studies 371 (1997).
+
+32. Treatises cite many cases, but rarely critically, as the emphasis of a legal treatise is on what the law is, not on what it would be were it not for a lot of decisions with which the treatise writer disagrees. If those decisions are likely to be followed, they are “the law,” at least from the practitioner’s perspective, and it is to practitioners that legal treatises are mainly directed.
+
+33. For striking examples, see Wendy N. Espeland and Michael Sauder, “Rankings and Reactivity: How Public Measures Recreate Social Worlds” 1 (2007), American Sociological Review), 113, discussing U.S. News & World Report’s influential rankings of law schools.
+
+34. The most complete study is William M. Landes, Lawrence Lessig, and Michael E. Solimine, “Judicial Influence: A Citation Analysis of Federal Court of Appeals Judges,” 27 Journal of Legal Studies 271 (1998). On the application of the methodology to a foreign court, see Mita Bhattacharya and Russell Smyth, “The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia,” 30 Journal of Legal Studies 223 (2001). Citation counting has become a commonly used tool for evaluating the scholarship of candidates for academic appointments and promotions. See Richard A. Posner, Frontiers of Legal Theory, ch. 13 (1991), and references cited there.
+
+35. Stephen J. Choi and G. Mitu Gulati, “Ranking Judges according to Citation Bias (as a Means to Reduce Bias),” 82 Notre Dame Law Review 1279 (2007); Choi and Gulati, “A Tournament of Judges?” 92 California Law Review 299 (2004).
+
+36. See also David Klein and Darby Morrisroe, “The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals,” 28 Journal of Legal Studies 371 (1999).
+
+37. G. Mitu Gulati and Veronica Sanchez, “Giants in a World of Pygmies? Testing the Superstar Hypothesis with Judicial Opinions in Casebooks,” 87 Iowa Law Review 1141 (2002). Klein and Morrisroe, note 36 above, attempt to measure judicial prestige quantitatively.
+
+38. I stress this point in my article “Law School Rankings,” 81 Indiana Law Journal 13 (2006).
+
+39. Thomas J. Miceli and Metin M. Cosgel, “Reputation and Judicial Decision-Making,” 23 Journal of Economic Behavior and Organization 31 (1994).
+
+40. Posner, note 34 above, at 413–417.
+
+41. Espeland and Sauder, note 33 above, at 10.
+
+42. Tom S. Clark, “Institutional Hostility and the Separation of Powers” (Princeton University, Department of Politics, Apr. 25, 2007).
+
+43. William N. Eskridge, Jr., “Overriding Supreme Court Statutory Interpretation Decisions,” 101 Yale Law Journal 331 (1991). For a contrasting view, see Frank B. Cross and Blake J. Nelson, “Strategic Institutional Effects on Supreme Court Decision Making,” 95 Northwestern University Law Review 1437, 1451–1457 (2001).
+
+44. Eugenia F. Toma, “A Contractual Model of the Voting Behavior of the Supreme Court: The Role of the Chief Justice,” 16 International Review of Law and Economics 433 (1996).
+
+45. For evidence that the Court’s constitutional decisions are influenced by the political balance in Congress, see William Mishler and Reginald S. Sheehan, “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective,” 58 Journal of Politics 169 (1996); Anna Harvey and Barry Friedman, “Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000,” 31 Legislative Studies Quarterly 533 (2006); Barry Friedman and Anna Harvey, “Electing the Supreme Court,” 78 Indiana Law Journal 123 (2003).
+
+46. Chapter 10 develops this theme. See also Richard Hodder-Williams, “Six Notions of ‘Political’ and the United States Supreme Court,” 22 British Journal of Political Science 1 (1992); Martin Shapiro, Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (1964).
+
+47. See, for example, Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” 83 American Political Science Review 557 (1989).
+
+48. For evidence, see Youngsik Lim, “An Empirical Analysis of Supreme Court Justices’ Decision Making,” 29 Journal of Legal Studies 721 (2000).
+
+49. See note 35 above.
+
+50. Steven Goldberg, “Federal Judges and the Heisman Trophy,” 32 Florida State University Law Review 1237 (2005).
+
+51. Other reservations concerning the adequacy of Choi and Gulati’s methodology for selecting Supreme Court Justices are expressed in Daniel A. Farber, “Supreme Court Selection and Measures of Past Judicial Performance,” 32 Florida State University Law Review 1175 (2005).
+
+52. James J. Brudney, “Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices,” 32 Florida State University Law Review 1015 (2005).
+
+53. For example, in my book Cardozo: A Study in Reputation (1990), I used out-of-state citations, as well as other numerical criteria, in an effort to determine Cardozo’s standing among state judges. Id., ch. 5, especially p. 85 (tab. 5).
+
+54. Simeon Djankov et al., “Courts,” 118 Quarterly Journal of Economics 453 (2003); Djankov et al., “Debt Enforcement around the World” (World Bank, Dec. 2006); Edward L. Glaeser and Andrei Shleifer, “Legal Origins,” 119 Quarterly Journal of Economics 1103 (2002); Michael L. Smith, “Deterrence and Origin of Legal System: Evidence from 1950–1999,” 7 American Law and Economics Review 350 (2005); Daniel Klerman and Paul G. Mahoney, “The Value of Judicial Independence: Evidence from Eighteenth Century England,” 7 American Law and Economics Review 1 (2005); Rafael La Porta et al., “The Quality of Government,” 15 Journal of Law, Economics and Organization 222 (1999); La Porta et al., “Law and Finance,” 106 Journal of Political Economy 1113 (1998).
+
+55. As argued in Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (2006). See also Aristides N. Hatzis, “Civil Contract Law and Economic Reasoning—An Unlikely Pair?” in The Architecture of European Codes and Contract Law 159 (Stefan Grundmann and Martin Schauer eds. 2006); Daniel Klerman and Paul G. Mahoney, “Legal Origin?” (USC Legal Studies Research Paper No. 07–3, n.d.); Gillian K. Hadfield, “The Many Legal Institutions That Support Contractual Commitments,” in Handbook of New Institutional Economics 175, 197–198 (Claude Ménard and Mary M. Shirley eds. 2005); Katharina Pistor et al., “The Evolution of Corporate Law: A Cross-Country Comparison,” 23 University of Pennsylvania Journal of International Economic Law 79 (2002); Brian R. Cheffins, “Does Law Matter? The Separation of Ownership and Control in the United Kingdom,” 30 Journal of Legal Studies 459, 483 (2001). The standard comparisons of “common law” and “civil law” systems are derided as simplistic by Gillian Hadfield, “The Levers of Legal Design: Institutional Determinants of the Quality of Law” (USC Center in Law, Economics and Organization Research Paper No. C07–8, May 2007).
+
+56. Paul G. Mahoney, “The Common Law and Economic Growth: Hayek Might Be Right,” 30 Journal of Legal Studies 503 (2001).
+
+57. Richard A. Posner, Law and Legal Theory in England and America 28 (1996) (tab. 1.1).
+
+58. Frank B. Cross, “Identifying the Virtues of the Common Law” (University of Texas School of Law, Law and Economics Research Paper No. 063, Sept. 2005).
+
+59. It would be interesting to correlate the average number of citations per opinion with a court’s propensity to overrule. The less inclined a court is to overrule its precedents, the narrower the court’s opinions will tend to be and so, one would expect, the less frequently they will be cited.
+
+60. Gary Slapper and David Kelly, The English Legal System 81 (8th ed. 2006).
+
+61. See id. at 239–240.
+
+62. Brian Simpson, “The Common Law and Legal Theory,” in Legal Theory and Common Law 8 (William Twining ed. 1986).
+
+63. Jean Edward Smith, “Stacking the Court,” New York Times, July 26, 2007, p. A19.
+
+64. Consider the extraordinary difficulty the Supreme Court experienced in attempting to secure compliance by the southern states with the Court’s rulings in civil rights and related criminal cases until the civil rights revolution of the 1960s. This story is well told in Michael J. Klarman, Unfinished Business: Racial Equality in American History (2007).
+
+65. Learned Hand, The Bill of Rights (1958).
+
+66. “Essays of Brutus,” Jan. 31, 1788; Feb. 7, 1788; Feb. 14, 1788, in The Complete Anti-Federalist, vol. 2, pp. 417–428 (Herbert J. Storing ed. 1981). See Shlomo Slonim, “Federalist No. 78 and Brutus’ Neglected Thesis on Judicial Supremacy,” 23 Constitutional Commentary 7 (2006).
+
+
+
+
+
+6
+
+
+
+
+
+Altering the Environment: Tenure and Salary Issues
+
+
+
+
+
+We can learn more about judicial behavior by considering the likely effects on it of two proposals that would alter the federal judicial environment: imposing term limits on federal judges,1 which would require a constitutional amendment, and increasing their salaries substantially, which would not.
+
+Whether in the academy or in the judiciary, life tenure guarantees independence but also invites abuse because it eliminates any penalty for shirking. More precisely, it reduces the penalty, because if salary can vary, the employer can penalize the tenured employee by denying him raises, though reducing his salary would presumably violate the terms of the tenure contract. The federal judicial salary structure makes dealing with shirkers impossible. Judges do not receive merit raises; when the judicial wage is raised, it is raised for all. Rightly so—performance-based criteria for judicial compensation would compromise judicial independence because of the absence of objective performance measures.
+
+So would a fixed but renewable term. Granted, this is the approach that has been taken, with no untoward results as far as I know, with respect to federal magistrate judges and bankruptcy judges. They are appointed for 8-year and 14-year renewable terms, respectively. But, as I noted in chapter 5, they are appointed by judges rather than by political officials. In any event, a nonrenewable fixed term would not compromise judicial independence. A term of, say, 10 years would limit the length of service of the shirkers and also create an incentive for good performance because the judge would want to secure a good job after his judicial term expired. But there are serious drawbacks, illuminated by the literature on term limits for legislators.2 Judges would be distracted by having to make arrangements for another job at the expiration of their terms; their decisions might be distorted by the desire to curry favor with potential future employers; and more rapid turnover of judges would reduce legal stability. The first two tendencies illustrate what economists call the “last period” problem. When a worker knows that he is soon to retire or quit, his commitment to his job may dwindle. Yet none of these concerns might be decisive were it not that candidates for federal judgeships are carefully screened, which eliminates from the appointment pool the candidates most likely to shirk. An additional effect of fixed terms would be to increase the President’s power to change the political composition of the federal judiciary;3 as we saw in chapter 1, judges tend to time retirement in such a way that their successors are of the same party.
+
+Senior status is an ingenious carrot-stick response to the problem of shirking. It allows judges, after they become eligible to retire, to continue working, at no reduction in pay, provided they are willing to shoulder at least one-third of an active judge’s workload. This is an attractive offer, and most eligible judges accept it when, or within a few years after, they become eligible. But part of the deal is that a senior judge can be barred (though with no diminution in pay) from judging by the chief judge of his court subject to review by the court’s judicial council. Senior status is thus a variant of the buyout schemes by which universities and other employers forbidden by law to fix a mandatory retirement age try to induce retirement.
+
+The case for term limits for Supreme Court Justices is stronger than that for judges of the lower federal courts. If I am right that it is a political court, the absence of term limits is an affront to democratic theory; conferring life tenure on politicians is profoundly undemocratic. Moreover, the Justices are ineligible for senior status; that is, they cannot sit part-time on the Supreme Court after retiring, though they can if they want sit in the lower federal courts. So they do not have the same incentive that lower-court judges do to semiretire. With increasing longevity, Justices are likely to be serving very long terms into very old age.
+
+We can gain insight into the tenure issue from the literature on constitutional courts in other countries. Ferejohn and Pasquino argue that the limited, nonrenewable terms (usually 10 or 12 years) of the judges of these courts are one reason such courts are less controversial than our Supreme Court,4 despite lacking the protective coloration that our Court gets from having a nonconstitutional jurisdiction as well as its constitutional one and deciding “real” cases in the standard manner (opposing parties, briefs, oral argument). Shorter terms mean that judicial appointments are less consequential and therefore attract less public attention and controversy.5 And foreign constitutional courts usually operate without oral arguments, signed opinions, or published dissents, so there is less opportunity for the judges to play to the gallery than there is for our Justices to do so.6 Our gallery, however, is the court of public opinion, and its participation in constitutional controversies injects a democratic element into constitutional adjudication. It makes the Supreme Court a little more democratic—and a little less like a real court, the judges of which are proudly indifferent to public opinion. Not that they should brag about that; their indifference to public opinion is the mirror of the public’s indifference to them.
+
+What is not a good argument for judicial term limits is that elderly people tend to experience diminished mental acuity. They do; but there are a few professions, such as history, theology, literary criticism and scholarship, and philosophy, in which the negative correlation between age and performance is weak.7 Judging is one of them, though part of the reason is that judges in our system are appointed at relatively advanced ages; this means that early decliners tend to be screened out and judges tend not to get bored, or run dry, at the same age at which persons in other fields do who have been in the same line of work for many years.
+
+Even apart from exceptionally able judges, such as Holmes, Brandeis, Learned Hand, and Henry Friendly, who performed with distinction well into their 80s (Holmes served into his 90s, but was fading toward the end), the federal judiciary in general exhibits little age-related decline in quality or (apart from senior status) even quantity of performance.8 And this is further evidence against an algorithmic model of the judicial process. Were judging highly analytical, we would expect a pronounced aging effect, as in other analytical fields, such as mathematics and physics. It is also an explanation for the legalist character of the foreign career judiciaries. A career judiciary has a lower age profile than a lateral-entry one because the lowest tier of judges consists of recent law school graduates. Young judges have good analytic skills but little experience. Older judges have the experience that younger judges lack, making them abler to play the occasional-legislator role because that role is not algorithmic but depends instead on insight into policy.
+
+The issue of judicial term limits is related to that of judicial salaries, which received renewed prominence when Chief Justice Roberts, in his January 1, 2007, year-end report to Congress on the federal judiciary, urged Congress to raise federal judicial salaries substantially.9 (The Chief Justice of the United States is the administrative head of the entire federal judiciary.) They have not been increased (except for cost-of-living increases in some, but not all, years in which the cost of living rose), since a very large raise in 1991—from $89,500 to $125,100 for district judges and from $95,000 to $132,700 for circuit judges. The current salaries of district and circuit judges are $165,200 and $175,100, respectively. Given that average U.S. salaries are higher than average British salaries, it may seem surprising that the salaries of federal judges are a little more than half the salaries of the corresponding British judges.10 However, the high British salaries may reflect the fact that British judges are recruited almost entirely from the senior ranks of barristers, who have very high incomes.
+
+If low salaries drive many judges to resign, then it is as if these judges had been subject to limits on the length of their terms. If term limits are bad, presumably so are salaries that induce self-termination. But because when salary is the inducer term limits are self-imposed, we must consider which judges are likeliest to resign as the salary gap widens. Judges who have the highest expected income from private practice are likely candidates, certainly—but also judges who derive the least satisfaction from their judgeship, as they may be bad judges because they lack interest in or aptitude for the job. This makes the effect of salary on the quality of the judiciary uncertain (and for a further reason, discussed shortly), though only within limits.
+
+It is not even clear that the judges who have the highest expected income from private practice are the best judges. They may be the ablest lawyers, but that is not always the same thing; and if they yield to the lure of a higher income it may be because they derive relatively little nonpecuniary income from being a judge, which, as I just suggested, is probably positively correlated with not being a very good judge. (It might be possible, by use of the performance measures discussed in the preceding chapter, imperfect as they are, to estimate whether judges who resign, or who retire but then take another job, tend to be of average, below-average, or above-average judicial ability.) The prospect of a high-paying job in the private sector upon resignation or retirement—what I earlier called “external promotion”—would motivate some judges to work harder. But others, rather than work harder, might seek by their rulings to ingratiate themselves with law firms or clients. A high-paying job in private practice following resignation from the bench would then be in effect the delayed receipt of a bribe.
+
+The Chief Justice’s report points out that federal judicial salaries have fallen in real (that is, inflation-adjusted) terms since 1969. But this is misleading. Judicial salaries are raised infrequently except for the occasional cost-of-living increases, and when they are raised it is by a goodly amount. The result is a sawtooth pattern of raises and inflation-adjusted declines. The base year picked by Roberts, 1969, was the year of a big raise (from $33,000 to $42,500 for circuit judges), and afterward inflation ate away at the salary in real terms; likewise after the next big raise, in 1991. Had Roberts picked as his base year 1968 rather than 1969, the picture of decline would have been less dramatic.
+
+What is rather dramatic, however, is that, as his report points out, federal judicial salaries are now well behind those of deans and professors at leading (though by no means all) law schools, whereas they used to be about the same. They are of course far behind the salaries of successful practicing lawyers. But that has always been true, although a novel twist is that judicial salaries are now lower than first-year associates’ salaries at New York law firms, when the associates’ bonuses are included.
+
+The report warns in crying-wolf fashion that the federal judiciary is facing a crisis because of judges’ lagging salaries. It notes that 38 federal judges left the bench between 2000 and 2005 and that 60 percent of newly appointed judges come from the public sector rather than from private practice; the figure used to be only 35 percent. More and more circuit judges are promoted from the ranks of district judges, and more and more district judges come from the lower ranks of the federal judicial hierarchy (bankruptcy judge or magistrate judge) or are appointed from a state court. (This trend, together with dramatic declines in the number of trials and hence in the use of juries, suggests, incidentally, a slight movement in the direction of convergence with the judiciaries of Continental Europe.)
+
+To say that the wages in some job category are “too low” would not make much economic sense if one were talking about a job in the private sector. An employer who has trouble finding workers with the requisite skill and experience at the wage that he is offering will raise the wage or curtail his output and thus his demand for inputs, including labor. Even if there is an unanticipated demand for workers of a particular type, there will be no “shortage”; the limited supply of workers will be allocated to the most urgent demanders, and other employers will substitute other inputs (including workers with less skill or experience) or curtail output. In the public sector, however, there is no automatic equilibrating mechanism, so there may be shortages in particular jobs. The existence of a shortage is a signal that the legislature should raise the wages for those jobs, though the legislature might ignore the signal. No such signal is being emitted in the judicial sector. Rather than a shortage of applicants for federal judgeships, there is a surplus, as is true with regard to many other high-ranking government jobs. But because there are no very definite criteria for appointment to a federal judgeship, it is possible that the queue is dominated by low-quality applicants, just as colleges that have fuzzy acceptance criteria receive many long-shot applications.
+
+Some evidence against this conjecture, however, is the long queues for appointment as a magistrate judge or a bankruptcy judge. Even though these judgeships have less secure tenure, pay less, and are less powerful and prestigious than district and circuit judgeships, there is excess demand for them. Of particular significance is the fact that these are merit appointments. Aspirants for such judgeships who do not have impressive credentials know that they are very unlikely to receive serious consideration. This implies that the applicant pool is of high quality. So if there is a surplus of high-quality applicants for these judgeships, there should be an even greater surplus of high-quality applicants for district and circuit judgeships, unless merit plays a very small role in appointment to such judgeships—and if so, we shall see, steep pay increases may make the situation worse rather than better.
+
+Increased turnover could be a sign of job dissatisfaction due to low wages. But has turnover increased? Roberts gets to the figure of 38 judicial departures only by lumping retirements in with resignations. But the choice between taking senior status and retiring flat out from the judiciary is less likely to be motivated by dissatisfaction with salary than the decision to resign is—and resignations remain rare. In the period covered by the report, only 12 federal judges resigned out of a total of some 1,200 active and senior judges. In the comparable six-year period of 1969 to 1974, when there were only about 60 percent as many federal judges as there are now, 10 of them resigned—a higher percentage than in the period 2000 to 2005. Resignations of circuit judges are especially rare; there have been only 8 since 1981. But with the age of appointment of federal judges dropping,11 one can expect the rate of resignation to rise somewhat.12 A judge appointed at 50 may find his interest in the job fading after a decade, but age 60 is a bit old to start a new career, especially as it would mean sacrificing the generous pension to which he will be entitled in 5 years; it is quite different if he was appointed when he was only 40, so that after 10 years he is both young enough for a new career and still 15 years from being eligible to retire from the judiciary with a pension. (The federal judicial pension is a “cliff”; there is no pension if a judge retires a day before his statutory eligibility to retire at full pay.)
+
+With such small samples of federal judges who quit, generalization is perilous. Most of the resignations may be only tangentially related to salary. They may reflect disappointment at not being promoted to the Supreme Court, in the case of a few circuit judges, or to the court of appeals, in the case of a number of district judges; or they may reflect the lure of exciting executive branch jobs at no higher wage. In recent decades two federal judges resigned to become Director of the Federal Bureau of Investigation, another to become Secretary of Education, another to become Secretary of Homeland Security, and three to become Solicitor General of the United States. Salary played no role in the three Supreme Court resignations (James Byrne, Arthur Goldberg, and Abe Fortas). There is also a burnout factor in the district court because of heavy workloads in urban districts and the monotony of a heavy diet of drug trials and sentencing hearings. A higher salary might have deterred some of these resignations. But are disappointed or burnt-out judges likely to do a better job than their eager replacements?
+
+The most serious omission in Roberts’s report is any discussion of the other compensation that judges receive besides their salaries.13 That other compensation is critical to an understanding of the low turnover. Some of it is pecuniary. Most judges who want to can teach part-time at a law school at an annual salary of up to $25,000, the ceiling on outside income other than investment income and book royalties. It is a low ceiling, given current law school salaries. But this actually benefits judges because it means they need do only a little teaching to justify receiving the maximum permissible law school salary, as $25,000 is an ever-diminishing percentage of a professor’s salary. More important, the federal judicial pension is extremely generous; a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years) and receive his full salary for life; nor does he make any contribution to funding the pension. The health benefits are also good.
+
+Even more important are the nonpecuniary benefits of a federal judgeship. The job is less taxing than practicing law, more interesting (though this is a matter of taste), and more prestigious than practice or teaching, except at the highest levels (a firm such as Cravath, Swaine & Moore or a law school such as Harvard). Importantly, it is a better job for a lawyer who wants to work into his old age than either practice or teaching. Partners at major firms usually are forced to retire in their 60s, and most law professors, unlike judges, experience declining productivity and influence with age. Academic tenure removes much of the external pressure to remain active in the profession other than through teaching. Judicial tenure does not, because as long as a judge remains in service, cases keep coming to him for decision. He does not have to initiate projects, as an academic lawyer does.
+
+Judges exercise power, not only over litigants but also (though primarily at the appellate rather than the trial level) in shaping the law for the future; and power is a valued form of compensation for many people. Judges write for publication, and though their audience—lawyers, other judges, and law clerks—is limited and specialized, it does read their writings attentively. Judges also are public figures, even if only locally, to a degree that few even very successful lawyers and law teachers are. And they are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are. Judges receive deference; practicing lawyers do not. Judges also obtain intrinsic satisfaction from being judges, a satisfaction they might not obtain from practicing or teaching law. And if they are lucky, they will continue obtaining that satisfaction long after all their nonjudge contemporaries have retired. Justice Stevens is going strong at 87. For all these reasons there would be little difficulty recruiting first-rate academics for federal judgeships, despite the salary difference.
+
+A further reason for the modesty of the judicial salary is that the judicial labor market is monopsonistic. “Monopsony” denotes the absence of competition on the buying side of a market, as distinct from the absence of competition on the selling side (monopoly). Sellers earn less in a monopsonized market than they would in a competitive one because they lack good alternatives. If you want to be a soldier there is only one possible employer (the government), and so it can and does pay a low wage to soldiers without compromising quality. Similarly, if you want to be a federal judge you have only one possible employer; a state judgeship is not a close substitute for a federal judgeship because the terms and conditions of employment are inferior and the prestige and power that are attached to the judgeship are less.
+
+The competitive picture is changing, however, because of the growth of private judging—that is, of arbitration and particularly mediation. These are highly paid substitutes for working as a “real” judge (especially arbitration, as it involves resolving a suit rather than cajoling a settlement—though district judges do a lot of the latter too). They are close enough substitutes to satisfy even some judges who derive significant nonpecuniary benefits from judging.
+
+Apart from the rise of private judging, the nonpecuniary income of a judgeship is actually growing relative to that of private practice. Private practice is increasingly competitive. That is fine for the clients but not good for the leisure and other nonpecuniary income of the lawyers who serve them. Competition maximizes consumer welfare, not the welfare of the sellers. Partners in law firms today have less leisure, less control over their work, and, above all, less job security (quite apart from being subject to compulsory retirement) than they used to have. Although they are still called “partners,” their partnership agreements reduce most of them to the de facto status of employees by denying them any claim on the firm’s profits and subjecting them to being fired or “de-equitized” (demoted by being expelled as equity partners) as if they were employees at will.14
+
+The fact that most federal judges either continue in active service when they reach retirement age or take senior status—in either case preferring working for nothing to retiring or taking a high-paying job in the private sector—suggests that the nonpecuniary income that a federal judgeship yields is high. In an economic sense, indeed, a judge who could increase his total monetary income by retiring is not working for nothing; he is paying to continue to be allowed to work as a judge.
+
+A more mundane explanation for this unusual behavior is that the marginal utility of salary income tends to decline with age. By the time a person is in his mid-60s he has Social Security benefits and Medicare and in the usual case reduced expenses (children grown, mortgage paid). And the “cliff” character of federal judicial retirement discourages resignation by judges approaching eligibility for retirement.
+
+All this is not to say that many successful practitioners would be sufficiently motivated by the prospect of a judgeship to exchange their $1 million or $2 million (or greater) annual income for a judge’s salary. But enough, out of a national population of a million lawyers, would be willing and even eager to do so to enable the filling of vacancies in the federal courts with such practitioners, especially ones in their 50s who have built up a nice nest egg to supplement the judicial salary, as well as academics. Not that most of the one million American lawyers are actually qualified to be federal judges—the quality of the bar is notable for heterogeneity. But thousands are and that is a large enough pool to fill the 40 or so annual vacancies in the federal judiciary with highly competent lawyers.
+
+So it is unlikely that the increased draw of new judges from the public sector is due to the salary lag. It is due partly to the fact that the federal docket, especially at the district court level, is increasingly dominated by criminal, prisoner, and employment-discrimination cases, none a category of cases congenial to lawyers who have a commercial practice. And partly to the fact that the judicial performance of lawyers who have worked for the government, for example as career prosecutors, or who have served as judicial officers, federal or state, is easier to predict than that of private practitioners, who may never have dealt with public issues, let alone in an adjudicative capacity. This is important in an era in which federal judicial candidates are carefully screened for ideology as well as for competence—and is further evidence that “legalist” is not an accurate description of today’s federal judges. Judges appointed from private practice are more likely to be legalist judges than judges appointed from government service or the academy are, because they are less likely to have developed an interest in public issues. A practicing lawyer does not choose his clients and is more likely to think of himself as an agent or technician, as distinct from a principal or policymaker, than a lawyer who chose government service or a teaching career. Whatever the appointing authorities say, they are increasingly concerned with picking judges who will be politically dependable. It is the triumph of the attitudinal school.
+
+Raising salaries, within the bounds of political feasibility, would not do a great deal to attract commercial lawyers to judgeships. A lawyer unwilling to exchange a $1 million income for a $175,000 income is unlikely to be willing to exchange it for a $225,000 income, especially if he does not want to decide criminal and prisoner civil rights cases. Roberts does not name a figure to which he thinks judicial salaries should be raised,15 but he can hardly expect Congress to raise them by more than a third, so inflation will eat away at the salary increase until the next jump. Moreover, one effect of raising judicial salaries would be to make the job a bigger patronage plum for ex-Congressmen, friends of Senators, and others with political connections, so that the average quality of the applicant pool might actually fall.
+
+Another effect of a much higher salary, having a similar consequence, would be to attract leisure-loving practitioners. A federal judgeship is a less stressful, more leisured job than practicing law. Those judges who work very hard, as many do, do so because they enjoy the work (or perhaps just enjoy working hard), not because they have to work hard in order to remain in good standing with their colleagues. Because of the salary gap, leisure lovers incur a high opportunity cost by exchanging a law practice for a judgeship. The cost would fall if judicial salaries were raised. And so the obverse of the proposition that low judicial salaries drive out dissatisfied judges is that the low salaries operate as a screening device: only lawyers who really want to be judges will accept the financial sacrifice required.16 If there is a positive correlation between eagerness for the job and quality of the performance in it, raising judicial salaries could reduce the average quality of applicants, which in turn could reduce the average quality of judges if the appointing authorities do not (maybe they cannot) make good predictions concerning the judicial performance of members of the applicant pool. If priests were paid high salaries, the Catholic Church would find it difficult to determine which of the aspirants to the priesthood had a genuine vocation for the religious life.
+
+There is some evidence that failure to raise judicial salaries will prompt resignations, even if not necessarily of the best judges. Since 1969, though not over the entire history of the federal judiciary, the number of resignations of federal judges who then entered private practice has been negatively correlated with federal judicial salaries.17 The erosion of judicial salaries since the big raise in 1969 has coincided with an abnormal increase in the incomes of elite private practitioners, which in turn has pulled up salaries at elite law schools because they compete with the bar in hiring. High expected and actual earnings of graduates of elite law schools have swelled the schools’ coffers both with tuition income and alumni donations, and those swollen coffers have ignited bidding wars for prized academics, which have contributed to the soaring incomes of professors at the leading law schools. Even so, judicial resignations remain at so low a level that their net effect on the quality of the federal judiciary may actually be positive, if the existence of good private practice opportunities for judges operates primarily to provide an attractive exit route for judges dissatisfied with their judicial careers and to minimize patronage appointments to the federal bench.
+
+I do not wish to seem too complacent about the possible effects of the lagging federal judicial salaries. Judicial resignations, which may be on the increase, raise two concerns, though of uncertain gravity. First, it can be argued that a federal judgeship should be a terminal job—that the longer a judge serves, and thus the lower turnover is, the better because we value experienced judges (as suggested by the analysis in chapter 4), there is not much of an aging effect, and we do not want our judges to be angling for postjudicial jobs. Resignations have not, however, reached a point at which these should be serious concerns. Indeed, the average length of service of federal judges is increasing.18 But second, resignations could be a sign that fewer able people find the job attractive and therefore that the quality of the applicant pool is diminishing. With as much excess demand for a federal judgeship as there is, however, this should not be a serious concern. A study by Scott Baker finds no significant relation between a federal circuit judge’s performance and his opportunity cost (what he would earn if he left the judgeship to become a partner in a law firm in his locale). Since all federal circuit judges are paid the same, judges who have higher opportunity costs are in effect accepting a lower income to be judges. Yet Baker finds that high-opportunity-cost judges are neither worse nor better judges, on average, than others.19 This suggests that federal judicial performance, and presumably therefore the composition of the applicant pool, is relatively insensitive to judicial salary levels, though this would doubtless change with very large increases or (inflation-caused) decreases in judicial incomes, or, quite apart from inflation, further decreases in relative income (and thus further increases in the opportunity costs of remaining a judge). If relative judicial incomes took a big tumble, the applicant pool would become increasingly dominated by single, independently wealthy, older, dual-career, unsuccessful, power-hungry, publicity-seeking, and lazy lawyers. Very low judicial incomes would also reduce public respect for the courts, which would be unfortunate because that respect makes it easier to obtain compliance with judicial rulings with minimum coercion.
+
+One argument for raising judicial salaries, though not an argument that reflects well on the character of judges (but after all they are only human beings, a species with many deficits), is that people who have a great deal of discretion yet feel underpaid may take revenge by underperforming. A judge who works 2,000 hours a year, so that his hourly fee is less than $90, and who feels indignant at being paid so little relative to his peers in private practice who are billing at $500 to $1,000 an hour, may decide to work fewer hours, delegating more work to his staff; to work the same number of hours but with less concentration; or to increase his nonpecuniary compensation by bullying the lawyers who appear before him. He might do these things in unconscious reaction to his resentment at being underpaid.
+
+This argument for raising judicial salaries is unlikely to receive a warm welcome from Congress, as is the argument that the warnings by Supreme Court Justices that inadequate salaries are driving federal judges from the bench may become a self-fulfilling prophecy. Judges are being told that they are paid too little, that they are bailing out, and that the private sector is beckoning.20 This may get them thinking.
+
+If current federal judicial salaries are deemed too low, the question becomes by how much they should be raised. Attempting to answer the question presents all the problems that have bedeviled the “comparable worth” movement. There is no “intrinsic” value of work. Any method of setting a salary other than supply and demand is arbitrary. Partners at leading law firms today earn about 10 times as much as federal judges. If that ratio is too high, what should it be?
+
+Federal judicial salaries cannot be cut, but they can be eroded in real (i.e., through inflation) or relative terms. Suppose there are no raises for years and as a result judges’ salaries fall in 2007 dollars to $100,000, while average salaries of partners in leading law firms rise to $3,000,000 and of law professors at the elite law schools to $400,000. There will still be excess demand for judgeships. But at that point the applicant pool will be significantly altered and the quality of the federal judiciary will begin to sink. To prevent that decline requires annual cost-of-living increases at a minimum, and more if law firm and law school salaries continue to increase in real terms.
+
+Intermittent large raises, followed by the erosion of their purchasing power by inflation, are a bad method of adjusting judicial salaries. They encourage retirement by judges who, having received the raise, do not anticipate receiving another for many years. Better to have regular annual raises consisting of a cost-of-living component plus an estimate, say 2 percent, of the average growth of incomes in other professional occupations.
+
+A compensation measure that is long overdue and could be effectuated at minimum cost to the federal fisc would be to introduce a cost-of-living differential for federal judges. The cost of living differs greatly among different communities in the United States. Boston’s cost of living is 40 percent above the average for the nation; the cost of living in Kankakee, Illinois, is 12 percent below the average; and these are not the extremes. Modest cost-of-living differentials, constituting raises limited to judges in high–cost-of-living areas, would go some distance toward remedying the perceived problem of inadequate judicial pay.
+
+
+1. A perennial proposal, but one receiving new attention, though only at the academic level. See Reforming the Court: Term Limits for Supreme Court Justices (Roger C. Cramton and Paul D. Carrington eds. 2006).
+
+2. See, for example, Rebekah Herrick and Sue Thomas, “Do Term Limits Make a Difference? Ambition and Motivations among U.S. State Legislators,” 33 American Politics Research 726 (2005); Edward J. López, “Term Limits: Causes and Consequences,” 114 Public Choice 1 (2003); Linda Cohen and Matthew Spitzer, “Term Limits,” 80 Georgetown Law Journal 477 (1992); Gary S. Becker, “Reforming Congress: Why Limiting Terms Won’t Work,” Business Week, Aug. 6, 1990, p. 18.
+
+3. Charles H. Franklin, “Behavioral Factors Affecting Judicial Independence.” In Judicial Independence at the Crossroads: An Interdisciplinary Approach 148, 157 (Stephen B. Burbank and Barry Friedman eds. 2002).
+
+4. John Ferejohn and Pasquale Pasquino, “Constitutional Adjudication: Lessons from Europe,” 82 Texas Law Review 1671, 1702 (2004).
+
+5. Id.
+
+6. Id. at 1692–1700.
+
+7. Richard A. Posner, Aging and Old Age 166–174 (1995).
+
+8. Id., ch. 8; Frank M. Coffin, “Transitioning,” 8 Journal of Appellate Practice and Process 247 (2006); Joshua C. Teitelbaum, “Age and Tenure of the Justices and Productivity of the Supreme Court: Are Term Limits Necessary?” 34 Florida State University Law Review 161 (2006); Frank B. Cross, Decision Making in the U.S. Courts of Appeals 80–81 (2007). Cross finds that court of appeals judges 70 years of age or older do not vote to affirm district court decisions in a higher percentage of cases than younger judges, as one would expect if the older judges were running down, since it is easier to affirm (one can rely on the reasoning of the lower court) than to reverse a decision.
+
+9. John G. Roberts, Jr., “2006 Year-End Report on the Federal Judiciary,” www.supremecourtus.gov/publicinfo/year-end/2006year-endreport.pdf (visited Apr. 20, 2007). Roberts’s report was followed up by congressional testimony by two other Supreme Court Justices, Breyer and Alito, at the “Oversight Hearing on ‘Federal Judicial Compensation’” before the Subcommittee on the Courts, the Internet and Intellectual Property of the House Committee on the Judiciary, Apr. 19, 2007, www.uscourts.gov/testimony/JusticeBreyerPay041907.pdf (visited May 9, 2007); www.uscourts.gov/testimony/JusticeAlitopay041907.pdf (visited May 9, 2007). For discussion and statistics (through the mid-1990s) concerning federal judicial compensation, see Richard A. Posner, The Federal Courts: Challenge and Reform 21–35 (1996).
+
+10. American College of Trial Lawyers, “Judicial Compensation: Our Federal Judges Must Be Fairly Paid” 8 (Mar. 2007).
+
+11. Albert Yoon, “Love’s Labor’s Lost? Judicial Tenure among Federal Court Judges: 1945–2000,” 91 California Law Review 1029, 1050 (2003).
+
+12. The most recent federal district judge to resign (at this writing) was only 48. Letter from U.S. District Judge Paul G. Cassell to President George W. Bush, Sept. 21, 2007, http://sentencing.typepad.com/sentencing_law_and_policy/files/cassell_presidentresign920fix.rtf (visited Sept. 22, 2007).
+
+13. See Yoon, note 11 above, at 1056–1057.
+
+14. See, for example, Nathan Koppel, “‘Partnership Is No Longer a Tenured Position’: More Law Firms Thin Ranks of Partners to Boost Profits, Attract, Keep High Earners,” Wall Street Journal, July 6, 2007, p. B1.
+
+15. The American College of Trial Lawyers, note 10 above, suggests that they be doubled. A bill has been introduced in the Senate that would raise the salary of district judges to $247,800, of court of appeals judges to $262,700, and of Supreme Court Justices to $304,500 ($318,200 for the Chief Justice). Federal Judicial Salary Restoration Act of 2007, S. 1638, 110th Cong., 1st Sess. (2007).
+
+16. Paul E. Greenberg and James A. Haley, “The Role of the Compensation Structure in Enhancing Judicial Quality,” 15 Journal of Legal Studies 417 (1986).
+
+17. Scott D. Kominers, “The Effects of Salary Erosion on the Federal Judiciary” (Harvard College, June 2007), http://web.mit.edu/scottkom/www/econ/kominers_980a_paper.pdf (visited June 20, 2007).
+
+18. Yoon, note 11 above, at 1050.
+
+19. Scott Baker, “Should We Pay Federal Circuit Judges More (or Less)?” (University of North Carolina at Chapel Hill, School of Law, 2007).
+
+20. This was a particular emphasis of Justice Alito’s testimony, note 9 above. Breyer, too, “offers a glimpse of the temptations that lurk there [i.e., in the private sector].” Breyer, note 9 above, p. 4. As both Justices pointed out, retired federal judges, mainly district judges, are being hired to do mediation, in effect private judging. Whether that represents a net loss to legal dispute resolution may be doubted.
+
+
+
+
+
+7
+
+
+
+
+
+Judicial Method:
+
+Internal Constraints on Judging
+
+
+
+
+
+We saw in Part One that American judges have a great deal of discretionary authority—fact-finding discretion in the case of trial judges, law-making discretion in the case of appellate judges. We saw that it was plausible to suppose that most judges exercise discretion in such a way as to be recognized by themselves and others as “good” judges rather than lazy or willful ones. But we also saw that because an American judge, especially at the appellate level, is an occasional legislator, yet with no constituency to answer to, his judging is likely to be influenced by temperament, emotion, experience, personal background, and ideology (influenced in turn by temperament and experience), as well as by an “objective” understanding of what would be the “best” legislative policy to adopt in order to resolve the issue in the case. Later we saw that American judges, at least federal judges as distinct from elected state judges, are largely free from external constraints on the exercise of discretionary authority. The major exceptions are constraints that actually expand judges’ discretionary authority. These are the constraints that define and protect an independent judiciary, such as ethical and professional norms that enjoin strict impartiality on judges and insulate them from effective control by the popular branches of government. (Judges like to describe the other branches as the “political” branches, as if the judiciary were not, to a significant degree, political.) The freer the judge is from the tug of personal interest and other personal concerns, such as promotion, the wider the range of other influences on his decision making is likely to be.
+
+But maybe I am giving up too soon on the internal constraints. Maybe the reason that studies of judicial behavior find strong correlations between judicial outcomes and judges’ personal and political characteristics is that there are many bad judges—judges who refuse through willfulness or incompetence to behave as judges are supposed to behave. Maybe the legalist conception of the judge’s role is workable even in the American context, provided judges are able and disinterested. Maybe Ronald Dworkin is correct that there is one right answer to every legal question and that it is at once mandatory and feasible for every American judge to seek and find that answer.
+
+At issue are two concepts of law. In one, which can actually span the considerable distance between the philosophies of adjudication of Antonin Scalia and Ronald Dworkin, law is distinct from politics and policy; it is the realm of rules, rights, and principles. In the other, law, at least insofar as the study of judges is concerned, is whatever judges do in their official capacity unless they go wild and court impeachment for being usurpative. I shall continue to call the first concept of law legalism and the second pragmatism, though it is a stretch to call Dworkin a legalist, for really what he has done is relabel his preferred policies “principles” and urged judges to decide cases in accordance with those “principles” and ignore (other) “policies,” which are consigned to the legislature.1 We shall see that Scalia’s commitment to legalism is also in doubt.
+
+Legalism consists of techniques for evaluating evidence; interpreting legally operative texts such as statutory and contractual provisions; applying rules to the facts of a case (which may mean applying a rule in a new, unforeseen situation); choosing between governing an area of law by a broad rule, which lawyers call a “standard,” or by a narrow or specific rule (a “rule” in contrast to a standard); and drawing analogies and distinctions between precedents and the case at hand (following or distinguishing precedents). The use of precedent in a new case is central to our case law system, and is the domain, in legalist analysis, of “reasoning by analogy.”
+
+The legalist techniques give judicial decision making an appearance of intellectual rigor. But in many instances it is just an appearance. I will be discussing mainly the interpretation of legislative texts and the handling of precedent, but I want first to touch on the other items in my list of judicial techniques. The rules of evidence (rules concerning hearsay evidence, expert testimony, cross-examination, the balancing of the probative value of a given piece of evidence against its likely prejudicial effect on a jury, jury instructions, jury selection, the authentication of documents, and so forth) have undoubted value in eliminating from litigation the most spurious and otherwise least helpful evidence that a litigant might want to present. The rules go far toward making trial by jury a rational method of resolving legal disputes. They also deter much litigation and enable much other litigation to be disposed of by the judge’s granting summary judgment before, and thus averting, a trial. But often the rules fail to close the deal because after the worthless evidence is excluded there is still irreducible uncertainty concerning the true facts of the case. And then the judge or jury is at large, bereft of useful guidance from “the law.”
+
+The application of a rule to facts is problematic when the facts are incurably uncertain. But when they are certain, it might seem that applying a rule would involve a simple comparison between rule and facts, as when a driver admits that he was driving more than 60 miles per hour on a highway though the speed limit was 50. Examples such as this lead some judges and academics to tout the advantages of rules over standards because the latter are less certain; it is easier to determine whether a driver was exceeding the speed limit when he collided with another car than whether he was driving negligently.2 But the certainty of a rule is bought at a price. By excluding considerations potentially relevant to its purpose (such as safe driving), the rule may generate a misfit between purpose and application. And while a posted speed limit is a rule that every user of the highway will learn, most rules of law are not “posted,” so unless they are intuitive laypeople will violate them inadvertently. Standards are more likely to conform to lay understandings—which means that despite their greater vagueness they may provide better guidance to compliance with the law. Also, by virtue of being formulated in general terms (“negligence,” “possession,” “due diligence,” and so forth), standards readily embrace unforeseen situations. Rules do not, and that creates arguments over their boundaries and, what is closely related, pressure for exceptions. Often, therefore, the real comparison is between a standard on the one hand and a rule plus exceptions and boundary issues on the other. Clarity may not favor the rule.
+
+To illustrate, the equitable doctrine of laches requires that a suit be brought within a reasonable time after the injury sued on, where what is “reasonable” depends on the diligence of the plaintiff and the prejudice if any to the defendant caused by a delay in suing. Statutes of limitations fix definite deadlines but the judges then fuzz them up with doctrines such as the discovery rule, equitable estoppel, and equitable tolling, which in many cases allow a suit to be brought after the deadline has passed. Or consider “forum analysis” in free-speech cases. Judges tie themselves in knots trying to distinguish among “traditional public forums,” “designated public forums,” “nonpublic forums,” and “limited designated public forums,” also called “limited public forums” or “limited forums”3 (or, in faux elegant terminology, “fora”), because each is the domain of a different rule regulating the government’s right to limit freedom of speech.
+
+A rule is like a precedent, in the sense of purchasing certainty (in both cases, though, an often delusive certainty) at the price of forgoing an opportunity to obtain potentially relevant information from experience with new cases. Both rules and precedents illustrate the backward-looking nature of legalist decision making because both reflect the state of knowledge when they were promulgated and are not open to new knowledge. Standards enable information obtained after promulgation to be incorporated into the law without need for further rule making. The point is general. When, for example, Congress passes a vague statute, thus leaving it to the judges enforcing the statute to fill in the details, in effect the judges are enlisted in the legislative process; thus the per se rules of antitrust laws are judge-made rules that supplement the general directives in the antitrust statutes. Whereas standards permit and indeed invite a judge or jury to use information of which the judges or legislators who promulgated the standard could not have been aware, adjustment to the new in a regime of rules and precedents requires judges to carve exceptions to the rules and distinguish the precedents. These maneuvers, which reduce the predictability of rule-based and precedent-based law, are elided in a regime of standards.
+
+The essence of a rule is that it limits the range of admissible facts. All manner of facts bear on whether a driver’s speed is safe, such as road, weather, and traffic conditions; skill and attentiveness; vision and reflexes; and the design, equipment, and condition of the vehicle. A speed limit eliminates from consideration all but the driver’s speed. That is fine, but only because there are expert institutions, separate from the courts, for regulating the safety of roads, vehicles, and drivers. In contrast, in New York Times Co. v. Sullivan4 the Supreme Court ruled that a public figure cannot obtain damages for defamation unless the defendant knew, or had been reckless in failing to discover, that the libel or slander was false. This was a rule in the form of a precedent, which halted in its tracks the evolution of a legal regime for regulating defamation of public figures. Had the Court ruled merely that defamation must not be used to stifle criticism of public officials (the situation in New York Times Co. v. Sullivan), the lower courts would have been able to develop, in light of the facts of new cases, a more nuanced code of rules and principles to govern this subfield of constitutional law.
+
+An example of successful rule making, oddly parallel to speed limits, is (or perhaps was, in light of developments discussed in chapter 10) the federal sentencing guidelines. Before their promulgation, the choice of the sentence to impose on a defendant between the statutory minimum and maximum sentences prescribed by Congress (often a very broad range) was in the unguided discretion of the sentencing judge. The sentences imposed by different judges varied widely and the variance could not be explained by reference to penological principles; they seemed arbitrary. The United States Sentencing Commission, which drafted the guidelines, drew on the knowledge of criminologists, federal probation officers, and other experts, though the guideline sentencing ranges established by the Commission mostly tracked what had been average judicial sentencing practice before the guidelines. In contrast to the work of the Commission, when the Supreme Court and other appellate courts lay down rules, it is rarely on the basis of expert knowledge.
+
+But the key point about the choice between rules and standards, so far as understanding judicial behavior is concerned, is that judges typically lack the information they would need in order to make an objective choice between the two regimes. Some judges are more comfortable with rules, others with standards, and the reasons may be largely temperamental—may in fact be related to the difference between the authoritarian and the nonauthoritarian personality (see chapter 4), which in turn is correlated, though perhaps only weakly because much more than personality influences a judge’s behavior, with the judge’s preference ordering of legalism and pragmatism. The legalist loves rules because they promise (though it is a promise frequently broken in application) to curtail judicial discretion by confining judges to determining a handful of prespecified facts.
+
+Although I have been emphasizing the limitations of rules, often it is reasonably clear that they are superior to standards even from a pragmatic standpoint. Statutes of limitations, though not as clear as they look, are preferable to relying solely on the vague concept of laches, which would leave a potential defendant in the dark as to when the deadline for a suit against him had passed so that he could go about his business without the threat of liability hanging over his head and so without having to preserve evidence and take other protective measures against a possible suit. And it is sensible to have speed limits. But the legalists’ general preference for rules over standards has never been shown to be correct. No responsible person favors a legal regime of just rules or just standards, but there is a large middle range in which the choice of a rule over a standard depends on a policy judgment rather than on an exercise of logic. It would be absurd to think that the per se rules of antitrust law had been derived from the text of the Sherman Act by a process of or akin to deduction. They are judge-made regulatory accretions to the Act. No more can the elaborate rules that the Supreme Court has concocted for regulating searches and seizures, restrictions on free speech and on the public recognition and support of religion, and capital punishment be thought deduced or deducible from the language of the Constitution.
+
+Among legalists’ most interesting methods of reasoning are reasoning by analogy in case law and interpretation in constitutional and statutory law. We can approach the former through Legal Reason: The Use of Analogy in Legal Argument, by Harvard law professor Lloyd Weinreb. His book argues that reasoning by analogy is at once the essence of legal reasoning in a case law system and a methodology unrelated to economic, policy, or pragmatic analysis (approaches that he treats as interchangeable)—or even to the application of rules—and that other people who have written about reasoning by analogy, such as Weinreb’s colleague Scott Brewer,5 have it wrong.
+
+Weinreb might seem to be driving a spear into legalism’s midriff by celebrating reasoning by analogy. For whatever exactly it is, it is not the application, by means resembling deduction, of clear, preexisting rules to found facts. The more that the legalist is forced to resort to reasoning by analogy to decide cases, the farther away he is pushed from the model of law as the application of preexisting rules; faced with a rule squarely applicable to the case before him, he has no need to gauge the similarity of his case to some other case. But Weinreb’s project, if successful, would support an alternative conception of legalism—legalism not as deductive reasoning but as a set of techniques for deciding cases without recourse to policy, techniques that presuppose that law is an autonomous field of knowledge, walled off from the social sciences and uncontaminated by concern with policy or consequences.
+
+Weinreb’s leading example of reasoning by analogy is an old case called Adams v. New Jersey Steamboat Co.6 The issue was whether a Hudson River steamboat operator owed a passenger who had occupied one of its staterooms the same very high duty of care that courts had held in previous cases an innkeeper owed his guests, or merely the lower duty of care that a railroad had been held to owe passengers who slept in the open berths of its sleeping cars. The court analogized the steamboat company to the innkeeper (it called the steamboat “a floating inn”) rather than to the railroad, and so concluded that the steamboat company owed the higher duty of care to the plaintiff. As a result the company was liable to the plaintiff for the theft of $160 by an intruder who had pried open the locked window of the plaintiff’s stateroom and stolen the money from the plaintiff’s clothing that he found there.
+
+The case indeed illustrates what in legal parlance is called “reasoning by analogy.” But what exactly is the mental operation that the term denotes? Could it be merely the starting point for policy analysis? These are important questions because reasoning by analogy enjoys canonical status in most discussions of legal reasoning. If, as I believe with only slight exaggeration, there is nothing to reasoning by analogy, this is a clue that the gap between ordinary, everyday reasoning and “legal” reasoning may be slight.
+
+Analogies can be suggestive,7 like metaphors, similes, and parallel plots in literature—devices that analogies resemble. (Think of the three son-father revenge plots in Hamlet, and how the two involving revengers other than Hamlet—Fortinbras and Laertes—provide analogies to Hamlet’s situation.) But analogies cannot resolve legal disputes intelligently. To say that something is in some respects like something else is to pose questions rather than answer them. At a conference I once heard it suggested in all seriousness that torture in desperate situations might be justified by analogy to the right of self-defense recognized by tort law if one is assaulted. And yes, an impending terrorist attack and a threatening gesture have something in common—both create an imminent risk of harm to a victim or victims—and self-defense and the torture of a suspected terrorist also have something in common—they are designed to prevent an attack or limit the damage caused by it. One might dress up the comparison by reference to proportions: A is to B as C is to D, where A is a threatening gesture, B self-defense by the victim, C a threatened terrorist attack, and D torturing the terrorist suspect or an accomplice. But to read off a right to torture from such a bit of formal analysis would be hasty, to say the least.
+
+Brewer’s answer to the question what is legal reasoning by analogy is that a novel case incites a search for a rule that might cover it. The similarity between innkeepers and steamboat operators as providers of sleeping accommodations for travelers makes the rule that governs innkeepers a likely candidate for a rule to govern steamboat operators. But what is the innkeeper rule? Is it that a contract for sleeping accommodations includes an implicit guarantee of safety—that it is one of the things the customer is paying for and so he is excused from having to take any unusual precautions to secure his property? For remember that Adams had locked the window of his stateroom. But this rule, while it covers the steamboat case, must be too broad, because it would require the railroad to extend the same high level of care to its sleeping berth customers. The railroad case is better understood as an exception to the general rule. Because the sleeping berths are open to anyone who happens to be in the car, the railroad cannot feasibly protect each sleeper against all thefts of his property.8 Knowing this, the passenger implicitly agrees, as part of his contract with the railroad, to take some responsibility for securing his property himself; in the jargon of economic analysis of law, he is the “cheaper cost avoider.” The exception is not applicable to the steamboat case. That case involved a stateroom, which is a closed compartment, just like a room in an inn so far as the proprietor’s ability to protect the customer’s property is concerned. The case is therefore covered by the same rule that governs the innkeeper’s liability.
+
+Rather than speak of rule and exception we could say more simply that the three cases taken together exemplify the standard that a business that provides sleeping accommodations to its customers must take as much care to protect them as is feasible. We could say that instead of a rule or a standard there are two rules—one for inns, steamboats, and closed-compartment railroad sleepers and one for open-berth sleepers. We could say that in Adams the court “distinguished” the railroad case—that is, limited its scope. Most simply, we could just say that to consult precedent when trying to decide a new case is to look for policy insights that might be applicable to the new case.9 All these approaches lead to the same result. None requires a discussion of analogy.
+
+“Reasoning by analogy” is a term that does no work and, worse, that is misleading because it sounds like a search for similarity whereas actually it is a search for difference. The interesting thing about the sequence of cases that culminates in Adams is not the similarity between Adams and the inn cases but the difference between it and the railroad case. Two cases dealing with sleeping accommodations are bound to be similar in many respects; what is illuminating in a comparison of the steamboat and railroad cases is that in the railroad case the sleeping accommodations were open, and this pointed to a difference in the carrier’s ability to protect the passengers from assaults and thefts. That is a difference related to policy, to the allocation of safety responsibilities between carriers and passengers. To “distinguish” an earlier case, such as the railroad case distinguished in Adams, is to enrich the law with a new insight,10 typically, as in Adams itself, an insight into public policy.
+
+Analogy belongs to the logic of discovery rather than to the logic of justification. Whether a judge in a common law case starts with other cases or with some sense of what a reasonable decision on grounds of policy would be, he has to make an initial selection from all possible cases, and all possible policy concerns, of those most relevant to the case at hand. (This assumes that he does not have some overarching analytic framework for the field of law in question that gives him a strong initial intuition about the correct decision.) At this stage, pattern recognition, a deeply ingrained capability of the human mind, plays a useful sorting role. It thus made sense for the court in Adams to interrogate the previous cases involving passengers and guests at inns—but to interrogate them for the policy that animated them. If the interrogation reveals inconsistent policies, the court must make a legislative judgment in the new case. What makes no sense is to try to determine which case the new one most closely “resembles” without exploring policy, unless the cases are identical in the sense that the first case declared a rule that the second case is clearly governed by. That is not a matter of resemblance, of analogy, but of subsumption. If the cases are merely similar, the question is not how similar—a meaningless question—but whether the differences make the policy that informs the previous case inapplicable to the new one; whether, in short, the cases are distinguishable.
+
+Distinguishing a precedent is a useful pragmatic tool when it is not merely a euphemism for overruling. Judges sometimes distinguish a precedent to death by deciding the new case the opposite way when the only difference between the two cases—the difference the court points to as the basis for distinguishing the earlier case—is something irrelevant to the holding of the first case. They do this to maintain a superficial impression of continuity, at the risk, however, of leaving the landscape of case law littered with questionable cases that not having been formally overruled can be revived at any time to confer a spurious pedigree on a novel ruling. The constructive use of distinguishing is to refine a rule stated in an earlier case by bringing to bear insights gleaned from the circumstances of the current case.
+
+Weinreb rejects any analysis of Adams that is based on rules because he does not think there was a preexisting rule of which the result in the cases involving innkeepers was an instantiation and to which the result in open-berth railroad cases was an exception.11 This does not bother him. He is no more enamored of rules than he is of policy. And it is true that a legal rule may be inchoate, intuited rather than articulated, and vaguely bounded, because a judge has to decide a case even if he is unsure what the rule governing it is or should be. A “rule” declared in such circumstances is really just a stab at creating a rule—the preliminary drawing rather than the completed painting. We could abandon rule talk in the line of cases culminating in Adams and ask simply why the innkeeper cases were decided as they were and why the open-berth railroad case was decided as it was. The answer is that customers expect providers of overnight accommodations to protect them securely from theft when it is feasible for them to do so, as it was in the innkeeper cases and likewise in the steamboat case but not in the open-berth railroad case.
+
+The legal realist Max Radin noted a
+
+
+
+common way in which judges arrive at their conclusion. The category into which to place the situation presented to them for judgment, does not leap into their minds at once. On the contrary, several categories struggle in their minds for the privilege of framing the situation before them. And since there is that struggle, how can they do otherwise than select the one that seems to them to lead to a desirable result.12
+
+
+
+That is often the situation facing a judge—but not in Adams. The two rules, railroad and innkeeper, could coexist happily, the former fitting the latter as exception to rule. There was no tension between the cases once the animating policies were grasped. All that was required was to draw the boundary between the rules on the basis of their policies. The steamboat case clearly fell on the innkeeper side of the boundary.
+
+Weinreb objects to purposive as well as rule-oriented approaches because both merge reasoning by analogy with policy analysis.13 The purposive approach does so even more completely than the rule-oriented approach. A rule’s wording may make its scope so clear that applying the rule to a new set of facts requires no consideration of purpose; analysis never dips below the semantic level. But if the rule claimed to be applicable does not quite fit the case, the court must determine the purpose behind it in order to decide whether extending it to cover the case would be consistent with that purpose.
+
+Radin was thinking of situations in which the court has to go beyond the cases in order to decide. Adams illustrates the situation in which the court has to go behind the cases. Radin’s interest was in freewheeling judicial policy analysis, which is problematic, or at least controversial. Adams is unproblematic because the court was simply identifying uncontroversial policies found in previous cases and determining which applied to the present case. Such a judicial activity is more passive, more modest, than Radin wished to emphasize. It is also an example of how nonlegalist analysis can be objective.
+
+The distinction between untethered judicial discretion and judicial reasoning based on policies expressed or implied in previous cases does not interest Weinreb. He thinks that reasoning by analogy is its own kind of thing—that it does not require recourse to policy analysis, even the modest kind that involves merely identifying and applying policies that figured in earlier cases. Endeavoring to hold policy at arm’s length, Weinreb notes that reasoning by analogy is pervasive in ordinary life, life unconcerned with rules or public policy. He gives the following example: if your power mower won’t start, you might try letting it sit awhile and then try again to start it, by analogy to a procedure that often works if your car won’t start. But you wouldn’t kick it to make it start, as you might do if it were a donkey. In this example lawn mower replaces steamboat, car replaces inn, and donkey replaces railroad. Yet no one would think you were applying a rule, or engaged in any sort of analysis other than reasoning by analogy understood as exercising an innate capacity to recognize relevant similarities; and so (Weinreb argues) in Adams. Actually the example is consistent with a rule-based, purposive, or policy-saturated approach to Adams. The rules that you apply in the lawn mower case are that internal-combustion engines start in a certain way and that people and other animals can sometimes be hurt into doing something. Since the power mower is an inanimate object powered by an internal-combustion engine, the first rule determines your response rather than the second.
+
+Reasoning by analogy belongs to legal rhetoric rather than to legal thought. Weinreb was correct when he said at the beginning of his book that it would be “about the arguments that lawyers make in support of their clients and judges make in the course of their opinions.”14 (The book’s subtitle carries a similar implication.) Reasoning by analogy obscures the policy judgments that should determine the outcome of a case, as illustrated by an example of mine15 to which Weinreb refers. The example is the choice of a rule of property law to govern oil and natural gas, which being liquid or gaseous do not have a fixed shape. Analogizing to the rule governing property in wild animals—the rule of capture, whereby a property right is not obtained until the animal is caught—courts concluded that because, like animals, oil and gas move (though, unlike animals, not under their own power but purely as an effect of gravitational or other external force), they should also be governed by the rule of capture. But it is not a relevant similarity. A rule that would make the rabbits that stray onto your land your property by virtue of that fact, so that if they stray off it and are shot you are entitled to their pelts, is not needed for the sake of encouraging investment in rabbits. Wild rabbits are not a product of investment, and so you are not deprived of the fruits of an investment when your neighbor shoots and eats a rabbit that having wandered onto your land later wanders onto his. Oil and gas are extracted from the earth by expensive drilling equipment after costly exploratory efforts often involving the digging of many dry holes, the expense of which has to be recouped in the occasional lucky strike. Under the rule of capture, someone who drills a well that taps into an underground pool of oil has an incentive to pump as much oil as fast as he can because he has no claim to the pool as such and so any oil he fails to pump is likely to become the property of a competitor. The race to pump may cause the pool to be exhausted prematurely. The applicable analogy is not to the property rules for wild animals but to the property rules for other extractable natural resources, such as coal. You are allowed to own an entire seam and remove coal from it at your leisure, rather than having to worry that anyone else can remove coal from the seam without compensating you.
+
+Eventually the rule of capture for oil and gas was changed by legislation requiring the “unitization” of oil and gas fields—that is, that they be managed as if under single ownership. A single owner would not worry that a competitor might be pumping oil from the same pool—the single owner by definition owns the entire pool and can exclude others from access to it. He can pump oil at whatever rate is most efficient without worrying that by doing so he will be losing profits to competitors.
+
+In the oil and gas case, as in all cases of reasoning by analogy, a sensible result requires attention to the considerations of policy that align the case at hand with one or another line of precedents. Failure to do that was what led to the mistaken application of the rule of capture to oil and gas.
+
+Weinreb both acknowledges and denies the hovering presence of policy. He acknowledges it when he says that a lawyer’s “knowledge of the law” would tell “him that the similarities between [the inn cases and the steamboat case] relate to factors that commonly have a bearing on liability,”16 and when he says that the choice between analogies “is informed also by a broad understanding of what is relevant to the sort of decision being made”;17 “what is relevant” is the open-ended set of policies on which sensible judicial decisions are based. He even admits that there are “policies latent in the law.”18 But he does not indicate what they are or what policies are out of bounds to judges. And he denies the relevance of policy outright when he says that judges “are not to decide for themselves what the law is but are to seek it out, to discover and apply it as it is.”19
+
+But more frequent than either acknowledgment or denial of the role of policy is equivocation, as when Weinreb says that “all the talk in the world with engineers, ecologists, and even economists [to decide what rule of property law should govern oil and gas] is beside the point unless what they have to say is reflected in the law.”20 But cannot the implications become reflected in the law by persuading judges to change the existing law? Concern with efficiency should certainly be admissible to determine property rights in oil and gas. So when Weinreb says that a judge “may not engage in social or economic engineering at large,”21 we are desperate to know at what point he thinks social or economic engineering, implicitly permitted by him on a small scale, ceases to be legitimate.
+
+He wants judges to stick to the “law itself” or “law in itself” or “law within itself” or “the law as it is,” and he even calls the law a “seamless web,”22 but he does not say where the web ends and something else begins. In places he suggests that “law” includes “ordinary common sense” and even “moral evaluation”23 à la Ronald Dworkin, whom elsewhere he disparages. He also says that the most the law can aspire to is “human reasonableness.”24 But what is “humanly reasonable” is conforming law to practical needs and interests, which in turn implies a willingness to bring policy considerations to bear in deciding how to resolve novel issues.
+
+When judges ignore policy, nonsense can ensue, as in the oil and gas cases, or sheer indeterminacy, as in a chain of cases that Weinreb discusses involving copyright in mechanical transmissions of copyrighted works. The copyright on a song or a drama includes the right to “perform” it. In an early case a hotel received broadcasts of copyrighted songs and transmitted them to the rooms in the hotel by wires connected to its receiving set. The Supreme Court held in a wooden opinion (one of Brandeis’s least impressive performances) that since the hotel’s receiving set did not amplify the sound waves from the radio station that broadcast the music but instead transformed them into electromagnetic waves that were transmitted to the rooms through the wires and there reconstituted as sound waves, the transmission to the rooms was a performance no different from hiring an orchestra to perform copyrighted music, and so required a license from the copyright holders.25 The Court made no attempt to relate the physics of radio reception and transmission to the purpose of copyright protection. It was an opinion to give reasoning by analogy a bad name.
+
+Many years later, in Fortnightly Corp. v. United Artists Television, Inc.,26 the Supreme Court confronted an ostensibly analogous case and reached the opposite result, again misusing analogy. Cable television operators had obtained copyrighted programming for their subscribers by erecting antennas that, as in the earlier case, received programs broadcast over the air, though broadcast by television stations rather than by radio stations. Cables connecting the antennas to the homes of the cable television subscribers transmitted the programs to those subscribers, just as the hotel in the earlier case had distributed programs that it received over the air from radio stations to its customers by means of wire transmission. Yet contrary to its earlier decision, the Court described what the cable television operators were doing as merely amplifying the broadcast signal, just as when a homeowner puts an antenna on his roof in order to receive signals from distant stations.
+
+To suppose that the cable television case can rationally be decided by determining whether cable television is more like a homeowner’s putting up an antenna than it is like hiring an orchestra to perform copyrighted music is absurd. A rational resolution of the issue requires discerning the purpose of giving the owner of a copyrighted work the exclusive right to perform it. The purpose is to prevent the form of free riding that consists of waiting for someone to spend money to create a valuable expressive work and then, by copying the work and selling copies at a price below the price that the work’s creator would have to charge to break even, preventing him from recouping his investment. The copier’s break-even price is lower because he does not have to recover the cost of creating the work—he incurred no such cost and so his free riding is profitable.
+
+In the early days of cable television, which was when Fortnightly was litigated, the primary use of cable television was to provide television reception to communities that because of topography or remoteness from over-the-air stations could not receive clear broadcast signals. Because of hilly terrain, the people living in Fortnightly’s service area could receive the signals of only two television stations over the air. Fortnightly brought them the signals of three other stations by cable. Rather than depriving those stations of any of the advertising revenues that the stations would need in order to be able to pay license fees to the owners of the copyrights on the broadcast programs, Fortnightly increased those revenues by enlarging the audience for television broadcasts that the cable subscribers could not have received over the air.27 Nor had the cable company stripped the advertising from the programs it transmitted and resold advertising time to other advertisers.28 That would have amounted to appropriating license fees owed to owners of the copyrights on those programs and would thus have been free riding, which copyright law aims to prevent.
+
+Weinreb finds additional evidence of judicial reasoning by analogy in the sequence of cases from Olmstead v. United States,29 which held that wiretapping was not a search within the meaning of the Fourth Amendment, to Katz v. United States,30 which held many years later that it was. The amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and the Court in Olmstead based its ruling on the fact that a nontrespassory wiretap does not invade the person (as a physical search of him, or an arrest, would), his house, his papers, or his other physical property (his “effects”). In the later case the Court decided that what was important was that wiretapping is an invasion of privacy.
+
+The choice between the two decisions depends on how one thinks constitutional provisions should be interpreted—strictly or loosely, and if the latter whether one likes the idea of imputing to the Fourth Amendment a policy of protecting privacy rather than the more concrete interests actually listed in the constitutional text—and how to balance the interest in privacy against the interest in law enforcement, which is impeded if the police have to obtain a warrant in order to wiretap. The Court has consistently held that they do not have to obtain a warrant to plant an informer in a nest of suspected criminals, even if the informer is “wired” to record any conversations he hears. Law enforcers would strenuously resist, as an impediment to effective enforcement, an extension of the requirement of a warrant to that case. They would likewise much prefer not to have to obtain a warrant to do wiretapping.
+
+Weinreb thinks that reasoning by analogy figured in Katz because the Court compared the telephone booth from which Katz made the call that was intercepted to a person’s office, both being places in which there is an expectation of privacy. But the analogy related to a peripheral issue in the case—whether, if wiretapping is a Fourth Amendment search, there should nevertheless be an exception if what is being tapped is the phone line in a public phone booth rather than in a person’s home or office. The principal issue in Katz was whether nontrespassory wiretapping is ever a Fourth Amendment search, and analogies were irrelevant to resolving that issue and were not employed. It illustrates how little work reasoning by analogy actually does in the law.
+
+My last example of traditional legal reasoning is the interpretation of statutes and constitutions. It is the scene of interminable debate. Traditionally it was a debate between advocates of “strict construction,” or its approximate synonym “plain meaning,” and of “loose construction” (“construction” meaning “interpretation”). Today it is more commonly a debate between advocates of “textualism” and “originalism,” on the one hand, and of “dynamic” or “purposive” interpretation, and the concept of “the living Constitution,” on the other hand.
+
+“Strict construction” can mean interpreting statutes (and other documents to which legal significance attaches) narrowly, as in the old “canon of construction” that statutes in derogation of the common law are to be interpreted narrowly so as to minimize their inroads into that law. Or it can mean interpreting statutes and other documents literally, that is, according to the “plain meaning” of their words, without recourse to considerations of legislative history, real-world context or consequences, or other indicia of legislative purpose. Literal interpretations can be astonishingly broad. “Literal when narrow” may be the practical meaning of strict construction. The loose constructionist is a nonliteralist, but he does not necessarily favor broad interpretations of statutes or constitutional provisions, creating new judicially enforceable rights. He could in other words be a practitioner of judicial self-restraint rather than of judicial activism.
+
+“Textualism” is literalism. “Originalism” means giving the words of a constitutional provision (the term is rarely used in relation to any other type of enactment) their original meaning—more precisely, restoring the understanding of the ratifiers. So the two terms are quite close, except when the meaning of crucial terms has changed over time—I give the example of habeas corpus in chapter 10—and except that if the statutory text is ambiguous a strict constructionist will want to construe it against the litigant who is relying on it while the originalist will be guided by the meaning that the text’s authors (or ratifiers, in the case of constitutional provisions) would have assigned to the text. Textualism and originalism share with strict construction an antipathy to interpreting a statute or a constitutional provision by reference to its purpose. Semantic rather than pragmatic or policy-oriented methods of interpretation,31 all three are quintessentially legalistic techniques.
+
+Interpretive issues arise in the domain of precedent as well as in that of legislative texts, usually in the form of judges’ attempts to distinguish between the holding of a case, which is the part that has precedential effect, and the language of the opinion that could be detached without changing the holding.32 Despite its antiquity and its seeming essentiality to the operation of a case law system, the distinction is in practice elusive. It is a sign of the growing influence of pragmatic decision making that judges make less of the distinction than they used to. The practical issue always is simply how much of an earlier case you are going to leave alone, and that depends on a host of considerations (such as the circumstances of the earlier case relative to present circumstances, the rule implicit in the earlier case and whether it comports with present circumstances, and the desirability of limiting judge-made rules to factual situations akin to those that gave rise to the rule) that can no more be reduced to a formula than the decision whether to overrule a case can be.
+
+I said in chapter 4 and repeat here that interpretation is a natural, intuitive human activity. It is not rule-bound, logical, or step-by-step. It is possible to impose a rule—to say to a judge, we don’t want you to figure out what the legislature was driving at; we want you to interpret statutes as if you were a newcomer to the culture and had only the literal meaning of the statute to go on. The strict constructionist wants to deduce the outcome of a statutory case from a major premise consisting of a rule of law clearly and explicitly stated in legislation or the Constitution and a minor premise consisting of the facts of the case. Preferring rules to standards and words to activity in the world, he tries to dissolve any interpretive difficulties presented by the often vague or confused wording of statutes by invoking rules of interpretation (the “canons of construction”) in an effort to make interpretation a rule-bound activity. If the attempt fails, he decides against the party who is trying to extract a claim or defense from ambiguous statutory wording.
+
+The procedure is spurious. It might make sense if legislators or drafters of constitutions were committed to the canons of construction, but they are not, and if in addition the legalist judge-interpreter felt bound only by substantively neutral canons, such as that the outright expression of one thought excludes the implication of another, related thought (the canon known as expressio unius est exclusio alterius); or that the same word is presumed to mean the same thing throughout a statute; or that a statute is presumed to contain no surplusage (that is, no words that do no work), as distinct from substantive canons, such as the rule of lenity in the interpretation of criminal statutes. Yet Justice Scalia, consistent with his self-characterization as a “faint-hearted” originalist,33 accepts the rule of lenity without suggesting that it has an originalist pedigree, for example a source in the Constitution.34
+
+The loose constructionist, in contrast to the strict, is a pragmatist. He wants the enactments he interprets to have sensible consequences, though not necessarily the consequences he would prefer—he is a constrained pragmatist (see chapter 9), though he thinks that sensible consequences are usually what the legislators want as well. He tries to correct for the limitations of their foresight, seeking, in Learned Hand’s words, to “reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision.”35 He agrees with Justice Frankfurter that “unhappily, there is no table of logarithms for statutory construction. No item of evidence has a fixed or even average weight. One or another may be decisive in one set of circumstances, while of little value elsewhere.”36 The pragmatist wants to use the experience gleaned from cases and other sources of postenactment information to complete the legislative project. He wants to help the legislators achieve their ends.
+
+Some strict constructionists argue that imaginative reconstruction of a legislature’s purposes is impossible because there is no such thing as “collective intent”; there is just the intent of the individual legislators who vote for or against a statute.37 That is the autistic theory of interpretation. It denies the possibility of meaningful interpersonal communication and agreement, of a “meeting of minds.” The theory is bad philosophy, bad psychology, and bad law.38 The natural presumption in interpreting a document is that however many authors it had, it is to be interpreted as if it were the product of a single mind. The presumption can be rebutted, but to suggest that one can never meaningfully ask what Congress was driving at in this or that statutory provision because Congress is not a collective body is to deny that people can ever share a purpose.
+
+The problem goes deeper. Interpretation presupposes an intending author. Suppose one sees scratched in the sand on a beach the words “Call your mother,” but you realize that the words were formed by the mindless action of wind and waves. It would be insane if, realizing this, you nevertheless called your mother because that was the “plain meaning” of the words. If there is no intent behind a collectively authored document such as a statute, there is no occasion for interpretation. Originalists cannot deny the possibility of collective intent. They depend on there being such intent. The meaning that the ratifiers attached to the Constitution, which is the meaning that originalists deem authoritative, was based on their understanding of what the authors of the document intended.
+
+The danger of loose construction is that it may lapse into shortsighted pragmatism, ignoring the bad consequences of too cavalier an attitude toward the written word. A proper choice between the two styles of interpretation, like the choice between rules and standards, which it resembles—which indeed it illustrates—is relative to circumstances, including institutional factors such as the different motivations and tools of courts and legislatures. These issues have engaged the attention of scholars for many years,39 but as with the choice between rules and standards there is no closure. Students of public choice, and political conservatives generally, being skeptical about the good faith of legislators, fearing the excesses of democracy, deeming statutes unprincipled compromises, and reluctant to help legislators achieve their ends (these skeptics doubt that most legislation has ends worthy of assistance), deny that statutes ever have a “spirit” or coherent purposes that might, by channeling loose construction, limit judges’ discretion to make policy. They think loose construction debases language as a medium of communication between legislature and court. They point out that to the extent that a statute is a product of compromise, a court that interprets the statute to make it more effective in achieving its ostensible goal may be undoing the legislative compromise—which might make it more difficult to enact legislation in the first place given the importance of compromise to the legislative process. These are sound cautionary points, but do not describe the actual practice of strict constructionists. A careful statistical study concludes that “plain meaning is not at all plain, at least to Supreme Court Justices. They are readily able to find whatever plain meaning suits their ideological proclivities.”40 They realize that a court committed to strict construction may make more work for legislatures by never lending them a helping hand. Conservative judges, however, instead of being troubled by this, rather welcome it.
+
+At the opposite end of the spectrum from the legislation skeptics we find the likes of Henry Hart and Albert Sacks, who along with Guido Calabresi and others urge loose interpretation (carried by Calabresi to the extreme of thinking that courts should be allowed to nullify statutes that have become obsolete). They believe in the public-spiritedness of legislators, who these scholars think welcome a helping hand from judges.41 But they underestimate the risk that judges will upset delicate legislative compromises, substitute their own poorly informed or politically biased policy judgments for those of better-informed legislators, and empower legislative factions.
+
+Realists about the limited knowledge that Supreme Court Justices and other judges bring to many of their cases—judge skeptics as distinct from legislator skeptics—especially urge judges to hesitate to invalidate statutory and other official action on the basis of constitutional interpretation, whether strict or loose. They think it presumptuous of the Justices, who after all are merely lawyers hired by politicians, to consider themselves competent to take sides on the profoundly contested moral and political issues involved in disputes over such matters as sexual and reproductive rights, capital punishment, the role of religion in public life, the financing of political campaigns, the structure of state legislatures, and national security. They think that courts should intervene in such sensitive and emotional controversies only if utterly convinced of the unreasonable character of the act or practice that they are asked to prohibit in the name of the Constitution.
+
+This is a form of loose construction and standard-based legal reasoning, but should not be taken to imply that realists always oppose rule-based adjudication. Students of economic development, who are realists with no interest in defending legalism as such, sensibly recommend the adoption of precise rules of law (which implies strict construction as the mode of interpretation of statutes, regulations, and other sources of rules) by backward nations with weak legal infrastructures.42 When law consists of precise rules, rather than standards, the scope of interpretive discretion is curtailed and judicial corruption and incompetence therefore held in check, because it is easier to determine whether a judge is applying a rule properly than whether he is applying a standard properly.
+
+This is an illustration of a point I made in chapter 3—that in particular historical circumstances pragmatism may dictate legalism. Another illustration is Savigny’s proposal that the German states (he was writing long before Germany became a nation in 1871) adopt the law of ancient Rome as the law of Germany—a highly formalistic version of Roman law, moreover.43 Savigny’s legalism may well have been right for his time and place. As in developing societies today, the urgent need was for clear, uniform rules that could be applied mechanistically and bind the different German states together. Holmes’s rejection of Savigny’s legalism44 may well have been right for his time and place, which were very different from Savigny’s. By Holmes’s time “the American legal system . . . had the suppleness and enjoyed the public confidence to be able to adapt legal principles to current social needs without undue danger of sacrificing legitimacy or creating debilitating legal uncertainty.”45 Thus, “formalism [legalism] as a decision making strategy in statutory interpretation, or for that matter in any other setting, can be justified or opposed (solely) on the basis of a forward-looking assessment of the consequences of the competing alternatives.”46 “The debate over interpretive formalism turns, most critically, on the structure of the lawmaking system rather than on claims about the nature of communication, democracy, or jurisprudential principles.”47
+
+The Continental European judiciary, as we know, tends to be more legalist than the American. A career judiciary requires performance criteria that can be used to make objective promotion decisions, and the accuracy of a literal interpretation of a legislative text is easier to evaluate than the soundness of a pragmatic interpretation. Then too, career judges, having little experience of the world outside the courtroom, are more comfortable with semantic than with policy-oriented interpretation (though, as I noted in chapter 5, civil law judges cannot avoid occasional policymaking). And parliamentary government, which is the European form of government, is far more streamlined than presidential government, and therefore less reliant on judges to supplement legislation. Legalism would not be a responsible strategy for American judges, given our tricameral legislative system (tricameral because the veto power makes the President in effect a third house of Congress); our 220-year-old Constitution, whose authors were sages but not seers; our federal system, which lays federal law confusingly over the legal systems of 50 different states; and our weak, undisciplined political parties.
+
+Strict construction, along with its textualist-originalist variants, would place an unbearable information load on our legislatures. It would require them to be able to anticipate not only every quirky case that might arise to exploit ambiguities in statutory language but also every future change in society (such as the advent of the telephone or the Internet) that might make a statute or constitutional provision drafted without awareness of the change fail to achieve the provision’s aim. Loose construction, in contrast, shares out the information burden between legislators and judges. Vague constitutional and statutory provisions are translated into broad rules by the Supreme Court, then fine-tuned by the lower courts. Not only are more “legislators” brought into the picture, but the postenactment legislators—the judges—contribute to the revisionary process information to which the original legislators, lacking the gift of prevision, had no access.48 Had we more professional, more disciplined legislative bodies, a constitutional convention in continuous session, a federal commission to revise statutes, a counterpart to the Sentencing Commission for every area of federal law, then judges could take a backseat, as foreign judges do. But none of these conditions for judicial passivity in interpretation is satisfied.
+
+This analysis will not convince those who so distrust interpretive flexibility that they accuse Blackstone of “radical institutional blindness”49 because he said (repeating a point made by a seventeenth-century legal thinker, Samuel Pufendorf) that a law of Bologna “that whoever drew blood in the streets should be punished with the utmost severity” should not be interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.”50 It would not convince critics of the French court that, in the face of the emphatic French commitment to judicial legalism,51 refused to read literally a statute that, so read, nonsensically forbade the passengers on a train to get on or off the train when it was not moving.52 Actually, the cases are different, because the text of the French statute probably contained a typographical error.53 The Bolognese statute involved what is far more common and far more difficult for a legislature to avoid, which is failing to anticipate and make provision for cases that are within the semantic extension of a statute but not within its purpose. The extension of a statement commonly exceeds its intended scope because well-understood qualifications are understood rather than expressed. Suppose you asked a druggist for something to help you sleep and he gave you a sledgehammer. Literalism can be a firing offense, or even grounds for commitment.
+
+Remember the Olmstead case? As an exercise in strict construction, it was correctly decided, though no one defends the decision anymore. Read literally, or for that matter naturally or even historically, the Fourth Amendment protects your person, house, papers, and effects from being searched, but not your conversations. Ordinary (that is, nonelectronic) nontrespassory eavesdropping has never been considered a search or a seizure. Nor has following a person about or even erecting surveillance cameras on lampposts. It would be unidiomatic to say “the police searched me by listening to my phone conversations” or “the police searched my house by listening to my phone conversations.” Electronic eavesdropping could be said (though only by a lawyer) to “seize” conversations, but conversations are not among the things that the amendment protects from intrusion. In order to bring wiretapping and other electronic eavesdropping within the scope of the Fourth Amendment, a court has to posit a purpose behind the amendment, and this requires speculation fatal to the strict constructionist’s desire to banish discretion from interpretation. For what was the purpose of the amendment? Was it just to limit trespasses by customs and other government officers? Or was it to limit more generally the occasions for and scope of official investigations? Or did it have both purposes—the narrow and the broad? Strict constructionists do not, or at least should not, regard these as questions that judges are permitted to answer. They should applaud Olmstead and denounce Katz—for Katz is just what legalists deplore: a legislative decision. The Supreme Court in Katz disregarded the Fourth Amendment’s words and original purpose in order to bring a novel form of criminal investigation under the Constitution.
+
+Advocates of strict construction argue that it strengthens democracy by preventing judges from imposing their policy preferences on society in the guise of interpretation. The other side of this coin, however, is that strict constructionists will not intervene to save legislation from being rendered obsolete or absurd by unforeseen cases (such as that of the hypothetical surgeon of Bologna) or by changed circumstances. The legislature can always step in and eliminate those results for the future, by amendment. But at what cost? The legislative process is inertial, legislative capacity limited, the legislative agenda crowded, and as a result amending legislation is difficult and time-consuming—it has to be or legislation would lack durability.54 A neglected point is that if amending is feasible, it can be used to cure pathologies of loose as well as of strict construction. Indeed, if amending is feasible, there is no longer a practical argument for strict construction; its effects on the legislative process are the same as those of loose construction. But it is more realistic to assume that amending a statute to correct judges’ misinterpretation of it is often infeasible.
+
+The choice between strict and loose statutory construction (which is not really a binary choice, since intermediate choices are possible and indeed attractive55), like the parallel choice between rules and standards, is full of uncertainty. Nothing in legalism itself can show that the legalist approach to statutory interpretation—strict construction, or in some versions textualism or originalism—is the right approach. And not enough is known about the trade-offs between strict and loose construction to enable the legalist approach to be endorsed, or for that matter rejected (though that is my inclination), on practical grounds. With the choice between strict and loose construction thus up in the air, judges must choose on the basis of factors that lie outside the boundaries of “the law” as it is conceived of by legalists. Although legalists defend strict construction as the democratic alternative because it limits judicial legislating, their real motive, one suspects, is hostility to big government, a creation primarily of legislation. To impede legislation is hardly democratic, but that is what legalistic interpretation does. It imposes arbitrary meanings on statutes by reading them literally, and by doing so it makes legislators work harder to achieve their objectives yet fall short because of the inertial forces that impede the enactment of legislative amendments designed to overcome judicial rulings.
+
+Because the correction of absurd results by constitutional amendment is especially difficult, yet such results would be a frequent consequence of literal interpretation of so old a document as the Constitution of the United States, strict construction is especially maladapted to constitutional cases. I illustrated with electronic eavesdropping, but that is just the beginning. A strict construction of the equal protection clause of the Fourteenth Amendment is that it forbids affirmative action (unequal benefits) but not the racial segregation of public schools (mere separation); of the Sixth Amendment that it requires jury trials in courtsmartial; of the First Amendment that it abolishes the tort of defamation and forbids the criminalizing of criminal solicitations, the legal protection of trade secrets, and the censorship of military secrets; of the Second Amendment that it entitles Americans to carry any weapon that one person can operate, including shoulder-launched surface-to-air missiles; of the Fifth Amendment that it permits evidence obtained by torture to be introduced in federal criminal trials provided the torture was not conducted in the courtroom itself; of the Eleventh Amendment that it permits a person to sue in federal court the state of which he is a citizen, though no other state; and of Article I, section 8, that Congress cannot establish the Air Force as a separate branch of the armed forces or regulate military aviation at all. If this is where strict constitutional construction leads, its adoption would create an agenda of proposed constitutional amendments so long that the amending process would break down.
+
+Good pragmatic judges balance two types of consequence, the case-specific and the systemic.56 A pertinent example of the latter is the danger of making law too uncertain if judges fail to enforce contracts more or less as written—that is, fail to interpret contractual language strictly. It can be argued that a similar undermining is likely to be the consequence of loose construction of statutes, so that a policy of strict construction with only a narrow exception for interpretations that produce palpably absurd results is superior, all things considered, to a general policy of loose construction. This would be an example of preferring rule plus exceptions to standard, a common choice in law. One could even favor strict construction of contracts and loose construction of statutes and the Constitution, just as one could favor strict construction under one type of legal and political regime and loose construction under another. The point is only that legalism no more requires strict construction than it requires a law made up entirely of rules rather than of rules and standards. These are choices that entail the exercise of legislativelike judicial discretion.
+
+
+1. Bernard Williams, “Realism and Moralism in Political Theory,” in Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument 1, 12 (Geoffrey Hawthorne ed. 2005), pertinently remarks “the intense moralism of much American political and indeed legal theory, which is predictably matched by the concentration of American political science on the coordination of private or group interests: a division of labour which is replicated institutionally, between the ‘politics’ of Congress and the principled arguments of the Supreme Court . . . a Manichaean dualism of soul and body, high-mindedness and the pork barrel, and the existence of each helps to explain how anyone could have accepted the other.”
+
+2. The trade-offs between rules and standards are the subject of an extensive literature. See, for example, Russell B. Korobkin, “Behavioral Analysis and Legal Form: Rules vs. Standards Revisited,” 79 Oregon Law Review 23 (2000), and articles cited there. Note also that there are all sorts of methods of canalizing judicial discretion that are intermediate between “rules” and “standards,” such as presumptions, factors, and advisory guidelines (which we’ll meet in chapter 10). For a useful taxonomy, see Cass R. Sunstein, “Problems with Rules,” 83 California Law Review 953 (1995).
+
+3. See, for example, Gilles v. Blanchard, 477 F.3d 466 (7th Cir. 2007).
+
+4. 376 U.S. 254 (1964).
+
+5. Scott Brewer, “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,” 109 Harvard Law Review 923 (1996).
+
+6. 45 N.E. 369 (N.Y. 1896).
+
+7. A famous example is how Wilbur and Orville Wright, bicycle makers, discovered how to stabilize a flying vehicle by considering analogous problems of stabilizing a bicycle. See the splendid account in Philip N. Johnson-Laird, How We Reason, ch. 25 (2006).
+
+8. “It is quite obvious that the passenger has no right to expect, and in fact does not expect, the same degree of security from thieves while in an open berth in a car on a railroad as in a stateroom of a steamboat, securely locked and otherwise guarded from intrusion.” Adams v. New Jersey Steamboat Co., note 6 above, at 370.
+
+9. Criticism of reasoning by analogy is not criticism of the doctrine of precedent. The two techniques are easily confused. The benefits that Emily Sherwin in her article “A Defense of Analogical Reasoning in Law,” 66 University of Chicago Law Review 1179 (1999), ascribes to reasoning by analogy are for the most part benefits of the doctrine of precedent.
+
+10. Nicola Gennaioli and Andrei Shleifer, “Overruling and the Instability of Law” (forthcoming in Journal of Comparative Economics); Gennaioli and Shleifer, “The Evolution of Common Law,” 115 Journal of Political Economy 43 (2007). For a comprehensive discussion of the doctrine of precedent, see Julius Stone, Precedent and Law: Dynamics of Common Law Growth (1985). Stone sums up by calling the doctrine “not so much a straitjacket as a capacious muumuu.” Id. at 229. He is right.
+
+11. Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument 111–112 (2005).
+
+12. Max Radin, “The Theory of Judicial Decision: Or How Judges Think,” 11 American Bar Association Journal 357, 359 (1925).
+
+13. Weinreb, note 11 above, at 116–122.
+
+14. Id. at 1 (emphasis added).
+
+15. Richard A. Posner, Overcoming Law 519 (1995).
+
+16. Weinreb, note 11 above, at 133.
+
+17. Id. at 92.
+
+18. Id. at 118 fn.
+
+19. Id. at 148 (footnote omitted).
+
+20. Id. at 118 (footnote omitted).
+
+21. Id. at 97 (emphasis added).
+
+22. Id. at 102.
+
+23. Id. at 92, 144 fn.
+
+24. Id. at 161.
+
+25. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 199–201 (1931).
+
+26. 392 U.S. 390 (1968).
+
+27. Id. at 391–393, 401 n. 28.
+
+28. The significance of this point was noted in the subsequent case of Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394, 405 n. 10 (1974).
+
+29. 277 U.S. 438 (1928).
+
+30. 389 U.S. 347 (1967).
+
+31. These methods, defended in Richard A. Posner, The Problems of Jurisprudence, pt. 3 (1990), license “loose” interpretation because they do not require the judge to stick strictly to the words of the enactment that is to be interpreted. For comprehensive treatments of theories of statutory interpretation, see William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation (1999); William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, ch. 7 (4th ed. 2008).
+
+32. See, for example, Michael Abramowicz and Maxwell Stearns, “Defining Dicta,” 57 Stanford Law Review 953 (2005), and references cited there.
+
+33. Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 864 (1989).
+
+34. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 29 (1997).
+
+35. Learned Hand, “The Contribution of an Independent Judiciary to Civilization” (1942), in The Spirit of Liberty: Papers and Addresses of Learned Hand 155, 157 (Irving Dilliard ed., 3d ed. 1960). See also Hand, “How Far Is a Judge Free in Rendering a Decision?” (1935), in id. at 103.
+
+36. Felix Frankfurter, “Some Reflections on the Reading of Statutes,” in Judges on Judging: Views from the Bench 247, 255 (David M. O’Brien ed., 2d ed. 2004 [1947]).
+
+37. The position is forcefully argued by the political scientist Kenneth A. Shepsle in his article “Congress Is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron,” 12 International Review of Law and Economics 239 (1992). He commends the following “plain meaning” approach: “In the circumstances of cases apparently falling in the interstices of a statute, the Court must resist bringing the case under the statute’s rubric. It may neither generalize the language of a statute, read intent into its words other than what is explicitly stated, nor forecast what the enacting majority (or some other majority for that matter) might have ruled. If the plain meaning of the statute’s language does not cover a circumstance, then the statute is inapplicable.” Id. at 253.
+
+38. Lawrence M. Solan, “Private Language: Public Laws: The Central Role of Legislative Intent in Statutory Interpretation,” 93 Georgetown Law Journal 427 (2005).
+
+39. See, for example, William N. Eskridge, Jr., “Overriding Supreme Court Statutory Interpretation Decisions,” 101 Yale Law Journal 331, 416 (1991); Susan Freiwald, “Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation,” 14 Harvard Journal of Law and Technology 569, 574 (2001); Jonathan T. Molot, “Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation,” 96 Northwestern University Law Review 1239, 1292–1320 (2002); Cass R. Sunstein and Adrian Vermeule, “Interpretation and Institutions,” 101 Michigan Law Review 885 (2003).
+
+40. Frank B. Cross, “The Significance of Statutory Interpretive Methodologies,” 82 Notre Dame Law Review 1971, 2001 (2007).
+
+41. Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1414–1415 (tentative ed. 1958) (now Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1378 [William N. Eskridge, Jr., and Philip P. Frickey eds. 1994]); Guido Calabresi, A Common Law for the Age of Statutes (1982).
+
+42. See, for example, Jonathan R. Hay and Andrei Shleifer, “Private Enforcement of Public Laws: A Theory of Legal Reform,” 88 American Economic Review Papers and Proceedings 398 (May 1998).
+
+43. See Richard A. Posner, Frontiers of Legal Theory, ch. 6 (2001).
+
+44. See Oliver Wendell Holmes, Jr., The Common Law, lects. 5–6 (1881).
+
+45. Posner, note 43 above, at 221.
+
+46. Sunstein and Vermeule, note 39 above, at 921–922.
+
+47. Id. at 925.
+
+48. Thorsten Beck, Asli Demirgüç-Kunt, and Ross Levine, “Law and Finance: Why Does Legal Origin Matter?” 31 Journal of Comparative Economics 653 (2003). Cf. Franceso Parisi and Nita Ghei, “Legislate Today or Wait until Tomorrow? An Investment Approach to Lawmaking” (University of Minnesota Law School, Legal Studies Research Paper No. 07–11, June 14, 2006), noting the difficulty that legislatures have in determining the optimal timing for the adoption of new laws, given the need to consider the value of the option of waiting. Loose construction is one solution to the dilemma.
+
+49. Sunstein and Vermeule, note 39 above, at 892. See also Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 19–20 (2006). For criticism, see Jonathan R. Siegel, “Judicial Interpretation in the Cost-Benefit Crucible” (forthcoming in Minnesota Law Review).
+
+50. William Blackstone, Commentaries on the Laws of England, vol. 1, p. 60 (1765). As Blackstone explained, “The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law . . . As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” Id. at 59–60 (emphasis in original). He illustrates the point with the Bologna bloodletting statute.
+
+51. On which see, for example, Julius Stone, The Province and Function of Law: Law as Logic, Justice, and Social Control: A Study in Jurisprudence 149–159 (2d ed. 1961). In fact, French legalism, like American legalism, is more rhetorical than real. See Eva Steiner, French Legal Method, chs. 3, 4, 7 (2002), and next footnote.
+
+52. Steiner, note 51 above, at 60; Michel Troper, Christophe Grzegorczyk, and Jean-Louis Gardies, “Statutory Interpretation in France,” in Interpreting Statutes: A Comparative Study 171, 192 (D. Neil MacCormick and Robert S. Summers eds. 1991). “In circumstances where the application of the literal meaning was likely to result in an absurdity, the judge could look at the legislative intent and ‘rectify’ the legislative provision by means of interpretation . . . Sometimes, in order to keep up with social change, French courts have departed from the literal meaning of a statute, applying instead a meaning that was not originally intended by the legislator at the time when the statute was passed.” Steiner, above, at 60. For extended discussions of the absurd-results principle of interpretation, see John F. Manning, “The Absurdity Doctrine,” 116 Harvard Law Review 2387 (2003); Veronica M. Daugherty, “Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation,” 44 American University Law Review 127 (1994).
+
+53. Statutory drafting errors are not a French monopoly; they are found in American statutes as well and provide a major challenge to the formalist. See Jonathan R. Siegel, “What Statutory Drafting Errors Teach Us about Statutory Interpretation,” 69 George Washington Law Review 309 (2001).
+
+54. William M. Landes and Richard A. Posner, “The Independent Judiciary in an Interest-Group Perspective,” 18 Journal of Law and Economics 875 (1975).
+
+55. See, for example, Jonathan T. Malot, “The Rise and Fall of Textualism,” 106 Columbia Law Review 1 (2006).
+
+56. Richard A. Posner, Law, Pragmatism, and Democracy, ch. 2 (2003). For a good discussion of the pros and cons of pragmatic interpretation, see John F. Manning, “Statutory Pragmatism and Constitutional Structure,” 120 Harvard Law Review 1161 (2007).
+
+
+
+
+
+8
+
+
+
+
+
+Judges Are Not Law Professors
+
+
+
+
+
+The external constraint on judicial behavior that is most compatible with a judiciary as independent as our federal judiciary is academic criticism, since it is noncoercive. It is potentially a powerful constraint because judges care about their reputation, care about being (and not merely being thought to be) “good” judges, respect the intellect and specialized knowledge of first-rate academic lawyers, and by virtue of their very independence are open to a wide array of influences, including those exerted by criticism, that would have little impact were judges subject to the powerful incentives and constraints of employees who lack the independence of a federal judge. Actually a better word than “criticism” in this context is “critique.” Judges would benefit from praise that indicated where they were doing a good job as well as from criticism, and judges who were not praised would learn from the praise of others where they were falling short.
+
+Yet academic critique of judges and judging has little impact these days on judicial behavior.1 This is not to say that academic scholarship has little impact on law, including the law made by judges in their legislative role. But my interest in this book is not in how law professors create knowledge that finds its way into judicial opinions and hence into the law; it is in the law professor’s role as an evaluator of judicial performance whom judges take seriously.
+
+There are two reasons that academic criticism does not much affect judicial behavior. One is that although judges indeed care about whether they are doing and are thought by certain others (other judges, for example) to be doing a good job, they do not care greatly what law professors think of them. The other reason is that law professors are not much interested in evaluating individual judges, except Supreme Court Justices—who are the last judges to care about how they are thought of in the groves of academe. Beneath these specific reasons for the ineffectuality of academic critique of judicial performance is a deeper one—the alienation of the elite law professor from legal practice, including judging.2
+
+Judicial insensitivity to academic criticism derives in part from the differences between judges and professors in working conditions, incentives, constraints, selection, outlook, and social role. Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive. This sense is shared even by appellate judges, engaged in the quasi-scholarly work of opinion writing, including appellate judges appointed from the professoriat.
+
+Apart from the courts of appeals for the Federal Circuit and to a lesser extent the District of Columbia Circuit, the jurisdiction of the federal courts of appeals ranges over virtually the entirety of federal civil and criminal law, and, by virtue of the federal diversity jurisdiction and federal habeas corpus for state prisoners, over virtually the entirety of state law as well, plus bits of foreign and international law.3 No judge of such a court can be an expert in more than a small fraction of the fields of law that generate the appeals that he must decide, or can devote enough time to an individual case to make himself, if only for the moment (knowledge obtained by cramming is quickly forgotten), an expert in the field out of which the case arises. Unlike the Supreme Court, moreover, the courts of appeals must decide all the dispositive issues presented by a case, however many there are, and a single case may present issues in several different fields of law.
+
+A judge is a generalist who writes an opinion under pressure of time in whatever case, in whatever field of law, is assigned to him. Lack of time and lack of specialization are not problems for the law professor. He writes an article on a topic of his choice in the area of his specialty at a pace that he is comfortable with. He strives to make an original contribution. In contrast, lack of originality is no problem for the judge. He must write the opinion assigned to him whether or not he has an original thought about any of the issues in the case. Especially if he is the presiding judge he may have some choice of which cases to write the majority opinion in, but it is a choice only among the cases that he has been chosen by random assignment to hear as part of a randomly chosen panel of the judges of his court. A law professor does not have to write 25 articles a year (roughly the current minimum number of opinions published by a federal court of appeals judge; some publish many more, and all are responsible for a number—invariably a larger number—of unpublished opinions) on topics not of his choice. The professor can, without losing his academic standing, write just one or two articles a year on the one or two topics about which he has an original thought. But he is expected to write the articles himself, whereas most judicial opinions are drafted by law clerks, though edited, and sometimes extensively rewritten, by the judge.
+
+It is not just that the judge, unlike the professor, cannot be expected to have an original thought in every case because of the volume of cases and the lack of choice and of specialization; originality is far less valued—and valuable—in judicial opinions than in academic books and articles. Stability and continuity are highly valued qualities in any legal system, and judges (in part for that reason) are hemmed in, though not nearly so tightly as legalists believe, by precedents and other authoritative texts. Their freedom of action is also hampered by the need to compromise with other judges who may be less adventurous than they, in order to command a majority. And this point highlights the difference in the audiences for the two types of document. The primary audience for academic writing consists of other academics. The appellate judge, writing what he hopes will be the majority opinion, is writing in the first instance for his fellow judges, with at least a glance over his shoulder at the Supreme Court, with a sense of wanting to be persuasive to judges of other courts who may someday be faced with a similar case, and with a desire to provide guidance to the bar. Academics are at the periphery of his concern.
+
+Deciding a case, moreover, is judging a contest, though, pace Chief Justice Roberts, it is not like umpiring a baseball game. A contest, a dispute, does not have the form of an article topic, even when the topic has a binary form. A law review article might take a position pro or con whether intellectual property rights have been construed too broadly and should be cut back. But the abstractness of such an issue would set it apart from a dispute over whether the publication of an unauthorized photograph of a copyrighted Beanie Baby (a “soft sculpture” in copyright jargon) is a “fair use” when the photograph is part of a guide for collectors of Beanie Babies.4 The judge is wont to ask himself in such a case what outcome would be the more reasonable, the more sensible, bearing in mind the range of admissible considerations in deciding a case, which include but are not exhausted by statutory language, precedents, and the other conventional materials of judicial decision making, but also include common sense, policy preferences, and often much else besides.
+
+One can imagine a law professor’s article on the proper scope of intellectual property rights that would have a similarly pragmatic, undertheorized, grab bag character. Indeed, there was a time—a time when the various branches of the legal profession, including the academic and the judicial, were closer to each other than they are today—when the typical law review article was of that character. Law professors used to identify primarily with the legal profession and only secondarily with the university. Hired after several years of practice, on the basis of evidence (often based largely or even entirely on performance on exams as a law student) of possessing superlative skills of legal analysis, the law professor was expected to be a superb lawyer whose primary responsibility would be to instruct generations of law students so that they would become good, and some of them superb, lawyers. He instructed them by precept but also by example, by being a role model, and the role was that of a practicing lawyer despite the limited practical experience of most of the professors. The professor’s scholarly work tended to be either pedagogical, as in the editing of casebooks, or of direct service to the practicing bar and the judiciary, as in the writing of legal treatises, articles on points of law, and contributions to projects of legal reform exemplified by the American Law Institute’s restatements of law.
+
+It was an era, unlike today, in which professors at elite law schools worked closely with judges on the problems of ordinary courts (professors at those law schools were active in the American Law Institute, along with prominent judges such as Cardozo and Hand, and the Institute’s principal focus was the common law5), not the U.S. Supreme Court. It was an era in which judges were among the intellectual leaders of the legal profession, fully on a par with and highly respected by law professors. Think of Holmes, Brandeis, Cardozo, Frankfurter, Hand, and, at the end of the era, Henry Friendly. What judges such as these said about judging, as about specific legal issues, was taken as seriously by professors as what other professors said, and, to a degree anyway, vice versa. The legal realists of the 1920s and 1930s, and even the legal process school of the 1950s, had a judicial as well as an academic audience.
+
+There was even then a gap between the judiciary and the professoriat, well illustrated by Henry Hart’s “time chart of the Justices” (see chapter 10). But it has widened since the 1960s—that watershed decade in modern American history. By the late 1960s the traditional model of academic law that I have described was almost a century old and ripe for challenge. Challenges came from two directions, which though opposite turned out to be complementary in their effect on the traditional model. One, the direction from social science, and in particular from economics, complained that the model failed to articulate concrete social goals for the law and to test legal doctrines against them. It could not tell judges and legislators when, for example, the rule of tort liability should be negligence and when strict liability; or how to decide when a land use should be deemed a nuisance, when a preliminary injunction should be granted and when denied, when solicitations by police to commit a crime should be deemed entrapment, whether a rescuer of a lost item should have a legal claim to the reward posted by the owner though unaware of the offer of the reward, or whether spendthrift trusts should be allowed because they reduce, or forbidden because they increase, the likelihood of bankruptcy. (The list can be extended indefinitely.) Too often decisions were based on invocations of hopelessly vague words such as “fairness” and “justice.”
+
+The second challenge was inspired by the left-wing politics that helped to define the late 1960s and early 1970s. The challengers complained that the traditional model was a mask for decisions reached on base political grounds. The critical legal studies movement and its offshoots resurrected the legal realism of the 1920s and 1930s in a form at once more strident and intellectually more pretentious, and rejected the legal process school of the 1950s that had sought to reconcile legal realism with the conventional model through the concept of neutral principles.
+
+These challenges to the traditional conception of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came unprecedented emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history. From the challenge mounted by the left came a reinforcing skepticism about the capacity of the traditional model of legal scholarship to yield cogent answers to legal questions.
+
+The traditional model was largely buried in these twin avalanches, at least in the elite law schools. And with its burial, interest in hiring the masters of the traditional skills of lawyer and judge to teach law waned. The knack (and it is a knack—it is not something that even every very bright person can acquire) of reading cases and statutes creatively, the bag of rhetorical tricks and the professional demeanor that mark the legal insider, and an ineffable sense (“judgment”) of just how far one can go as a judge in changing the law (or as a practicing lawyer in advocating a judicial law change) to keep it abreast of changing social and economic conditions, cannot be the entirety of the modern lawyer’s or judge’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education. The law has become too deeply interfused with the methods and insights of other fields—and law schools still have a long way to go to overcome the shameful aversion of most law students to math, statistics, science, and technology. Maybe at the law schools that have the brightest students only half of the instruction should be in the traditional mold. But to reach that level those law schools would have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.
+
+The modern style of academic law, when set against the style, which is not modern, of deciding cases, leaves a gap in the legal profession. In a system of case law, which is the dominant American system even in primarily statutory fields, the principles and rules of law are rarely found clearly stated in written codes. They must be teased out of the codes and out of strings of precedents. Law is more often inferred than positive (i.e., posited), and inferred law is “unwritten” in the significant sense that it is constructed or reconstructed by judges, lawyers, and scholars out of scattered, sometimes inconsistent, and often ambiguous, incomplete, or poorly informed materials, mainly judicial opinions. The messy work product of judges and legislators requires much tidying up, synthesis, analysis, restatement, and critique. These are intellectually demanding tasks, requiring vast knowledge and the ability (not only brains, knowledge, and judgment but also Sitzfleisch) to organize dispersed, fragmentary, prolix, and rebarbative materials. Though these tasks lack the theoretical ambition of scholarship in more typically academic fields, they are vital to the legal system and of greater social value than much of today’s esoteric interdisciplinary legal scholarship.
+
+They are vital because judges are deciding cases rather than attempting to formulate a code.6 In explaining a decision they will typically state a rule in the hope of providing guidance for future cases and subsume the case under it. But they cannot see the future clearly, in part because a case system concentrates the judge’s attention on the case at hand. So rules keep having to be refined and reformulated as new cases arise. Sometimes they are recast as standards, sometimes precipitated out of standards, and sometimes festooned with exceptions. Early on, for example, the English royal courts held that a threatening gesture is tortious (an assault) even if the person threatened is not actually struck by the threatener.7 That sounds like a simple, clean rule to guide the decision of future cases. Then came a case in which there was again a threatening gesture: the defendant in an angry confrontation with the plaintiff placed his hand on his sword—but at the same moment he negated the threat by stating, with careful use of the subjunctive, that “if it were not assize-time, I would not take such language from you.” The court ruled for the defendant,8 thus indicating that the original statement of the assault rule had been too broad. This is an example of legal progress through the distinguishing of prior cases—in other words through refining rules on the basis of knowledge generated by new, unforeseen disputes.
+
+Judges try to keep track of old cases and reformulate the rules of decision making as tested by new, unanticipated ones. But a mature or complete rule is more likely to have been reconstructed from a line of cases than to be found fully and precisely stated and explained in the latest case in the line. It falls to the law professors to clean up after the judges by making explicit in treatises, articles, and restatements the rules implicit in the various lines of cases, identifying outliers, explicating policy grounds, and charting the path of future development. This type of scholarship resembles appellate judging because it is the kind of thing one could imagine the judges themselves doing had they the time and the specialized knowledge. Indeed, judges in their opinions sometimes try to do a preliminary tidying up of an area of law by restating a rule or standard in a way that clarifies, unifies, and perhaps modestly improves the rule implicit in a line of cases.
+
+The type of legal scholarship that I am discussing is no longer in vogue at the leading law schools. No longer are the law professors at those schools appellate judges manqué, or überjudges who codify the implicit judge-made rules, giving them a fixity, an amplitude, and a clarity that an implicit rule could not achieve. They influence law, maybe more so than their more conventional predecessors. But they do so not by shaping the timbers rough hewn by judges but instead by inviting judges’ attention to new considerations to take into account in deciding difficult cases. Typically the invitation is indirect. The professors are not writing for judges but for other law professors and to a lesser extent for law students. Still, there is a trickle-down effect, operating through law clerks, sophisticated members of the bar, and judges who are former law professors.
+
+The trickle-down effect is important, for reasons central to this book. In difficult cases, which are so mainly because they are cases in which the orthodox materials of legal decision making cannot produce a satisfactory decision (sometimes cannot produce a decision, period), judges are perforce reliant on other sources for their decision. They must find something to move them off dead center, and the modern law professor can help them in their quest. In a number of areas of law, economic analysis has helped move judges from reliance on instinct and semantics to something closer to cost-benefit analysis. This has produced a gain in precision and concreteness that should actually warm a legalist’s heart because it reduces the area in which judges make decisions in a fog of emotion and undisciplined intuition.
+
+But apart from the handful of professors who, as I mentioned in chapter 5, are trying to develop quantitative measures of judicial performance, not many law professors at the elite schools are interested in doing critiques of the courts, other than law professors who write about the Supreme Court, typically with reference to the Court’s constitutional decisions. Like the Court itself when it is deciding constitutional cases, academic commentary on constitutional decisions is highly politicized—which makes it especially easy for the Justices to ignore. Law professors may express strong reservations about judicial performance in particular fields dominated by the lower courts, such as intellectual property, but it is the field that fascinates them, not what it might be about the judicial institution that is leading judges astray.
+
+Michael Dorf, a well-known professor of constitutional law at Columbia, accusing the new Supreme Court majority of “assert[ing] fidelity to the prior precedents and then ruling the other way,” “register[s] a parochial complaint against this particular brand of what is charitably called minimalism: It’s going to make it hard to train new students about what it means to reason from or even follow precedent.”9 No, it’s going to be hard to keep on teaching constitutional law as if the Justices took precedent as seriously as lower-court judges and common law judges do. It’s going to be hard to keep pretending that Justices are like other judges rather than like other legislators. It is high time some realism about judging was injected into the teaching of law. The appointment of political scientists to law faculties—a rarity today—deserves serious consideration.
+
+I have suggested that law professors have been growing apart from judges, and Dorf’s surprise at discovering that Supreme Court Justices play fast and loose with precedent might be taken as a sign of this (for was there ever a time when Justices were scrupulous about precedent?). In this regard there is an illuminating contrast between two works on judging written by law professors a quarter of a century apart. Karl Llewellyn’s book The Common Law Tradition: Deciding Appeals, published in 1960, is a legal realist summa. A 565-page study of state appellate courts, which tries with some success to reconcile legal realism with the undoubted fact that there is a fair degree of predictability in the common law, Llewellyn’s book can be seen as the culmination of a realist tradition that goes back to Holmes and before him to Bentham. I will say more about this tradition, gathering together the scattered remarks I have made so far in this book about legal realism, in the next chapter. Suffice it to say that Llewellyn is on the same wavelength as most judges.
+
+With Llewellyn’s book compare Duncan Kennedy’s article “Freedom and Constraint in Adjudication: A Critical Phenomenology,”10 published in 1986. The subtitle is a clue to the difference that a quarter century had made in academic law. Kennedy imagines himself a judge torn between “law” that favors the granting of an injunction against striking workers and the judge’s sense of “social justice” that impels him to search for ways in which he can deny the injunction. Judges do not think the way he imagines them to (though they sometimes say they do). They do not think, “This is an awful rule but it is the law, so I have a dilemma—can I get around it?” The business of judges is enforcing the law. If you do not like enforcing the law, you are not going to be a happy judge, which means you are not going to self-select into the judiciary, or if you somehow find yourself a judge (maybe you didn’t know what being a judge was like or what you are like), you are likely to quit.
+
+When a judge does bend a rule to avoid an awful result, he does not feel that he is engaging in civil disobedience;11 he thinks the rule does not really compel the awful result. He will have rejected, probably unconsciously (few judges think a great deal about jurisprudential questions such as “What is law?”), the crabbed view of “law” that would if adopted make much of what American judges do be classified as lawless. Oblivious to the tension that Professor Kennedy assumes to exist between “law” and “social justice,” judges no more identify with Kennedy’s imagined judge than they do with Dworkin’s fictional “Judge Hercules.” This is a damaging criticism of an article about the conscious mind of the judge—an essay in phenomenology, the study of conscious experience from the first-person perspective.
+
+Should it be objected that Duncan Kennedy is outside the academic mainstream, I retreat to Adrian Vermeule, an indisputably mainstream colleague of Kennedy’s at the Harvard Law School. I mentioned in chapter 7 his characterization of Blackstone’s purposive interpretation of statutes as “institutional blindness.” Even legalists such as Justice Scalia accept the “absurdity exception” to the strict construction of statutes.12 Vermeule does not. He is concerned that false positives (deeming a statutory provision absurd when it is not) may outweigh false negatives (enforcing an absurd provision).13 He urges judges to abandon purposive interpretation because of this possibility and offers the reassurance that prosecutorial discretion, jury lenity, the pardon power, and other nonjudicial responses to an absurd statutory interpretation can protect us adequately. I find this unconvincing. Let me give an up-to-date example why. The Child Pornography Prevention Act of 1996, which forbids the knowing possession of child pornography,14 contains no exception for the knowing possession of such pornography by law enforcement officers who seize it for use in prosecuting child pornographers and maintain possession of it until the prosecution is complete, whereupon possession passes to the keepers of judicial archives. According to Vermeule’s theory of statutory interpretation, the Act could properly be read to make all these “knowing possessors” guilty of violating the Act and thus subject to the Act’s maximum punishment of 10 years in prison. Of course the prosecution of any of the law enforcers would be unlikely, though not out of the question; for example, the government might suspect, without being able to prove, that one of the investigating officers had stolen some of the pornography from the U.S. Attorney’s office in the course of the prosecution. Yet the logic of Vermeule’s theory is that if any of these “possessors” were ever asked on an employment form whether he had committed a felony, he would be lying if he failed to say that he had. If this is where Vermeule’s theory leads, as it appears to, no judge will follow him there.
+
+Vermeule presents no evidence that the number of false positives (whether weighted by the likelihood of legislative correction or by something else, or unweighted)—cases in which a court errs in thinking that the literal reading of some statutory provision is absurd—outweighs the number of false negatives (similarly weighted). American judges have been engaged in purposive interpretation since before there was a United States. There is no basis for thinking it has produced worse results than mindless literalism would have produced—the kind of literalism that would condemn the surgeon in Bologna or the prosecutor in a child pornography trial for possessing pornographic evidence. Statutes often are made overinclusive in order to stop up loopholes. To avoid overreach, the legislature leaves the task of fine-tuning its statutes to judges, and not just to jurors and executive branch officials.
+
+Judges have to be given a better reason to change course 180 degrees than Vermeule gives them. Either he has no insight into what persuades judges, or, more likely, though his book urges a radical change in judicial behavior, this is just a rhetorical trope and judges are not actually a part of his intended audience, which is limited to other professors, who delight in paradox.
+
+Lawyers, legislators, judges, and others seriously engaged with judicial activity, including law professors of the old school, take the interpretive medium—the judiciary—as it is and adjust their arguments, regulations, and so forth to it. For it is what it is, and is unlikely to change at the urging of professors, or of anyone else for that matter. Academics who are not seriously engaged with the judiciary urge judges to change by adopting this or that approach, and usually it is an approach designed to clip judges’ wings. Judges are not interested in having their wings clipped, but will happily adopt restraintist approaches as rhetorical tools to persuade others that what looks like judicial assertiveness is obedience. Academics who are serious about wanting judges to change have to appeal to their self-interest. To tell judges, as Vermeule in effect does, that they are so dumb that they cannot even administer the absurdity exception to literal interpretation, and so should give it up, will not strike a responsive chord. It perfectly illustrates the contemporary alienation of the elite academy from the judiciary.
+
+Academics have pointed out consequences of judicial decisions that even not-so-dumb judges did not understand; entire fields of law, such as antitrust law, trust investment law, and conflict of laws, have changed at the urging of law professors and other academics, mainly economists. But to change judges’ basic outlook on judging rather than specific doctrines that they administer would require changing the judicial environment—the structure of incentives and constraints that influence judicial behavior. To achieve such change academics would have to address their arguments to the interests of the persons who manage the institutions that can alter the judicial environment, such as Congress, the White House, and the Department of Justice. Lecturing judges on their limitations will not have any effect.
+
+The legal academy has been growing apart from the judiciary for a reason I have not yet mentioned—the growth of specialization in academic law. American judges are still generalists, but law professors increasingly are specialists. This is partly a result of the growth in size of the legal professoriat, because the larger a market (in this case the market for legal scholarship), the more room there is for specialization. It is more the result of the growing intellectual sophistication of law professors, which in turn is related to increased recognition that the social sciences, along with humanities such as history and philosophy, hold many of the keys to understanding and improving the legal system. And therefore the growing apart of the academy and the judiciary since the 1960s, though it has retarded empathy and mutual understanding, need not emasculate academic criticism of judges. This is shown not only by the proliferation of social scientific theories of judicial behavior, canvassed in chapter 1, but also by the quantitative literature on evaluating judicial performance—a form of critique, central to the analysis of judicial behavior and hence to this book, that would not have occurred to the traditional legal academic.15 But recall its numerous shortcomings: counting citations provides a measure of influence rather than of quality; adjustments must be made for different courts, different length of service, and so forth that affect a judge’s ranking independent of his quality; combining various quantitative measures to create a composite evaluation requires an arbitrary weighting of the different measures; rankings are merely ordinal measures (if, for example, the distance between number 1 and number 100 is slight, no specification of rank within that range will convey useful information); and ranking may induce undesirable behavioral changes by the persons ranked.
+
+The limitations of quantitative measures of judicial performance highlight the need for qualitative assessments. It is remarkable how rare they are—which casts further light on the contemporary alienation of the academy from the judiciary. Of course law professors express agreement or disagreement with particular decisions, but that is different from evaluating a judge’s overall performance, and it tends to fall on deaf ears because of the judges’ sense that law professors do not understand them. Judicial biographies attempt critique, but their emphasis tends to be on producing a narrative of a judge’s career and excavating the details, especially the piquant details, of his personal life—and these are to one side of his judicial failures or achievements.16 If I am right in thinking that the judges in our system have a large measure of discretion, the exercise of which is bound to be influenced by personal experiences, character foibles, and so forth, biographical details may help to explain a judge’s decisions. But that too is to one side of evaluating his performance. Noting that two judges disagreed frequently because they had different intuitions as a result of having different experiences, temperaments, and so on does not reveal which judge did better work, though it can provide insights into influences on a judge’s decisions.
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+If academic critique is to alter judicial behavior, we need critical studies of judges,17 as distinguished from biographies18 on one side and quantitative performance measures on the other. The most illuminating kind of critical study would compare the judge’s opinion in some notable case with the opinion of the lower-court judge, the record of the case, and the lawyers’ briefs and oral arguments, along with any internal court memoranda written by the judge, his colleagues, or his or their law clerks. The aim would be to determine the accuracy and completeness of the judge’s opinion; whether it was scrupulous in its use of precedent; the value it added to the briefs and arguments and the contributions made to the opinion by law clerks and other judges, and thus the opinion’s originality; and what if anything it added to academic understanding. The interactions between the judge and his colleagues would be an important focus of study, for, as in team sports, a judge’s performance can be decisively affected by his colleagues: Are they supportive or competitive? Do they nitpick his opinions or make helpful suggestions? Is he treated fairly by the opinion-assigning judge? Are his colleagues on the same political and methodological wavelength as he is? To what extent are his opinions really a group product?
+
+A series of critical judicial studies would yield insights into the methods as well as the quality of the judge. A study expanded to consider judges serving on the same court at approximately the same time, and thus correcting for court-specific and time-specific differences between judges, would further sharpen judicial evaluation.
+
+There are fruitful possibilities for combining quantitative assessments of judges with critical studies. Being unschooled in statistical methodology, judges are skeptical about quantitative measures of judicial performance. When they see a judge whom they do not recognize as one of the most distinguished members of the judiciary being ranked high by such a measure, they are more likely to reject the measure than to revise their opinion of the judge. A useful project would be to compare qualitative and quantitative assessments and seek to explain any discrepancies by a critical study of the opinions of judges whose quantitative and qualitative assessments differ substantially. We would gain insight into the strengths and limitations of the quantitative assessments.
+
+Ours remains a case law system, and judges are central players in such a system. But because few law professors are interested any longer in trying to understand what makes judges tick or in trying to improve the judicial ticker—except in the case of Supreme Court Justices—academic discussion of judicial opinions rarely even identifies the judges whose opinions are being discussed, as if to say that legalism reigns and judges, being in effect just calculating machines, are fungible. Academic critique thus perpetuates a false notion of judicial behavior. This disserves the bar as well as the judiciary. Law students do not learn much about judges (most law teachers do not reveal to students the extent to which the cases the students read in casebooks are ghostwritten by law clerks). As a result, few lawyers, apart from those who have clerked for judges, or at least for those judges who are open and candid with their clerks, know how best to brief and argue cases.
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+Academic lawyers are terrific at taking apart the formal grounds of a judicial decision, and those are the grounds that take up most of the space in most opinions. But the academics have (or express) little understanding of how cases are actually decided, where the judges who decided a case were coming from, and what really made them alter existing doctrine as distinct from what they said made them change it. The academic emphasis on the formal grounds of a decision conveys to law students and the bar the impression that every judge is a thoroughgoing legalist who can therefore be “reached” only by ceaseless iteration of legalist slogans such as “plain meaning” and by barrages of case citations. Misled by the legalistic style of judicial opinions—mistaking style for substance, the logic of exposition for the logic of the decision itself—and unaided by a realistic scholarly literature on judicial decision making, lawyers tend in briefing and arguing cases to stop with the language of statutes and cases. Old-style law teaching adopted the standpoint of the litigating lawyer and so taught the student agility in argument, how to clear away the debris of precedent, and how to interpret legal texts imaginatively, because if you’re litigating you have to master these sometimes dark arts. But the old-time teachers offered nothing in place of the debris; they did not teach policy. Modern teaching supplies the substance missing from the old style, but downplays the debris-clearing function, and as a result students are too respectful of precedent and statutory language. Nor can economic talk be automatically ported to the courtroom; students sense this but are not given a rhetoric in which to feed economic policy to hungry judges.
+
+A sense of the audience is the key to rhetorical effectiveness, and so the key to effective appellate advocacy is the advocate’s imagining himself an appellate judge. If he does that he will see immediately that appellate judges labor under the immense disadvantage of having very little time to spend on each case and, in addition, of lacking specialized knowledge of most of the cases that come before them. The judges are badly in need of the advocate’s help, yet the working assumption of most of the lawyers who argue before appellate courts is that the judges have the same knowledge and outlook as the lawyers.
+
+Rarely is it effective advocacy to try to convince the judges that the case law compels them to rule in one’s favor. For if that were so, the case probably would not have gotten to the appellate stage (unless it is a criminal case—criminal cases tend to be appealed regardless of the merit of the appeal, because normally the appellant is not bearing the cost of the appeal). And so the second-biggest mistake that appellate advocates make, after exaggerating how much the judges know about, or are willing to devote time to learning about, the circumstances behind the appeal, is to think they can win by rubbing the judges’ noses in the precedents. In a case that is not controlled by precedent, the task of the advocate is to convince the judges that the position for which he is contending is the more reasonable one in light of all relevant circumstances, which include but are not exhausted in the case law, the statutory text, and the other conventional materials of legal decision making.
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+The most effective method of arguing such a case, as should be clear from the discussion of case-based reasoning in chapter 7, is to identify the purpose behind the relevant legal principle and then show how that purpose would be furthered by a decision in favor of the advocate’s position. Having done this, he will have to show that the position does not violate settled law, and this will require a further discussion of the cases. So precedent will enter at two stages in the argument: as a source of governing principles, and as a constraint on efforts to realize those principles in the novel setting of the case at hand. At neither stage, however, will the good advocate be arguing that the result for which he is contending is already “in” the law.
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+These simple principles should be at the heart of a legal education. Law students could learn something about them from reading what judges have written about judging, as we shall see in the next chapter, and indeed from reading Llewellyn’s book. But these writings are not taught. It would also be helpful to law students if casebooks sometimes published not only the judicial opinion in a case but also the lawyers’ briefs, so that the student could see how close to or (more likely) far from the judge’s conception of the case the lawyers’ conceptions were; how the lawyers failed or succeeded in communicating effectively with the judge; and how different the judge’s concerns were from the lawyers’. It would be an eye-opener.
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+Problems of communication are typically and in this instance two-way. Judges are not good at telling lawyers what they expect from them. This is an aspect of the curious institutional passivity of the judges in our system. One thing judges and umpires really do have in common is that just as umpires don’t try to tell players how to play better, judges are disinclined to tell lawyers how to brief and argue cases better. The difference is that judges, but not umpires, change the rules from time to time, and do so in response to the urging of contestants. They are not passive observers, but they often act as if they are, watching lawyers drone their way to defeat.
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+The failure of law professors to come to terms in their teaching and writing with the ghostwriting of judicial opinions by law clerks is especially damaging to a realistic understanding of adjudication. The failure may be rooted in embarrassment at teaching as the law the writings of neophyte lawyers who a year or two before were students, or in a desire not to make impressionable students prematurely cynical about judges. Whatever the cause, the effect is to obfuscate the judicial process. Why, in the aftermath of legal realism, the legal process school, the findings of the attitudinalists, and the analysis of the judicial process in books such as this, are judicial opinions on average as legalistic as they were a century ago and more legalistic than they were a half century ago? Because today most judicial opinions are written by law clerks, which was not true a century ago, when very few judges even had law clerks (some had “legal secretaries,” but most of their duties were indeed secretarial), and was less true decades ago, when judges had fewer law clerks and law still had a writing culture. Students are taught to approach judicial opinions as if every word were written by the nominal author—that is, the judge—and the effect is to imbue them with a legalistic outlook, an effect reinforced by their youth (to which, as I suggested in chapter 6, algorithmic thinking as distinguished from pragmatic or legislative thinking is more congenial than it is to older persons) and by an understandable desire to believe that their steep law school tuition is buying them a set of powerful analytic tools. When they become law clerks it is natural for them to write opinions designed to provide legalistic justifications for their judges’ votes. They thus contribute to the mystification of the next student generation.
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+If after all this you still doubt the alienation of the elite legal professoriat from the courts, I ask you to consider the participation of a number of those professors in the litigation that culminated in the Supreme Court’s 8–0 decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR).19 The decision, which involved the response of law schools to military discrimination against homosexuals, was neither momentous nor unexpected (a decision the other way would have been both), but the suit was in effect an academic project from which we can learn something about the relation between judges and law professors.
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+As a result of the compromise in 1993 between the Defense Department and President Clinton that created the “don’t ask, don’t tell” policy, homosexual orientation is no longer a bar to serving in the armed forces unless manifested by homosexual “conduct,” broadly and somewhat oddly defined as a homosexual act, a statement that the person is homosexual, or a marriage or attempted marriage to someone of the same sex.20 Military recruiters no longer ask applicants what their sexual orientation is. But members of the armed forces who disclose a homosexual orientation are liable to expulsion even if they are not known to engage in homosexual acts and do not flaunt their homosexuality, as by attempting a homosexual marriage.
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+The response of most law schools to military discrimination against homosexuals, beginning in the 1970s and undeterred by the “don’t ask, don’t tell” compromise, was to deny Judge Advocate General (JAG) recruiters the same assistance in recruiting law students that the schools’ career placement offices provide to law firms and other potential employers who promise not to discriminate against applicants for employment on the basis of their sexual orientation. Not that the law schools single out military recruiters. The denial of assistance applies to all employers who refuse to hire homosexuals. Nor are JAG recruiters (or other discriminators) banned from law school campuses. But they are denied the extensive assistance that law schools offer recruiters who, so to speak, take the pledge—assistance that includes “recurring ‘meet the employer nights,’ or gatherings on campus at which students and employers’ representatives can meet in a cordial, low-pressure, event that is more like a cocktail reception than an interview or meeting.”21
+
+Congress riposted with a law known as the Solomon Amendment, which in its present form denies federal funding to any institution of higher education any component of which prevents military recruiters “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”22 Law schools reluctantly complied lest their universities lose federal funding. But a coalition of law schools and law professors—the Forum for Academic and Institutional Rights (FAIR)—challenged the constitutionality of the law, arguing that it imposes an unconstitutional condition on the receipt of federal funds: to obtain them a law school must mute its opposition to discrimination against homosexuals by providing the same hospitality to military recruiters that it extends to employers who pledge not to discriminate. FAIR lost in the district court, won in the court of appeals,23 and lost again in the Supreme Court.
+
+An amicus curiae brief filed on behalf of a large number of Harvard Law School professors opposed the government on a different ground from FAIR’s—that there is no violation of the Solomon Amendment as long as a law school, rather than singling out military recruiters, denies placement assistance to all employers who refuse to promise not to discriminate against homosexuals. The brief argues against holding the Solomon Amendment unconstitutional because that “could encourage attempts by discriminatory employers, educational institutions or other groups to evade compliance with various pieces of federal civil rights legislation . . . by asserting that granting equal treatment without regard to race or sex would send a ‘message’ with which they disagree.”24
+
+The Supreme Court rejected the suggested interpretation, which bordered on the absurd. As the Court pointed out (and remember that eight Justices, including the four liberal Justices, agreed), the interpretation would defeat the purpose of the Solomon Amendment because it would allow law schools to continue without any change at all their policy of excluding military recruiters, as what law school would permit any employer that discriminated against homosexuals access to recruitment favors? Congress would have achieved nothing by its law. Nullification is not an accepted method of statutory interpretation.
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+Concerning the constitutional issue—the issue pressed by FAIR and decided in its favor by the court of appeals—the Supreme Court said that “the Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”25 To the argument that the assistance that law school placement services render compliant employers includes compelled speech in the form of “send[ing] e-mails or post[ing] notices on bulletin boards on an employer’s behalf,” the Court responded that Congress “can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”26
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+Just as no one would suppose that the racist employer had had a change of heart, so no one reading the notices sent to students or employers by law school placement offices would think the law schools were expressing agreement with the policies of prospective employers. Law firms that represent cigarette companies or pornographers, the law departments of giant corporations that pollute the atmosphere or sell munitions to Third World dictators or abuse experimental animals or buy gold from slave labor mines in the Congo, the offices of the general counsel of the CIA and the Defense Department, right-wing and left-wing public interest firms—all are welcome to “meet the employer” nights. (This raises the question why only discriminators against homosexuality are turned away. The answer is that the grievance of homosexual law students is “available,” in the cognitive psychologists’ sense, to law school faculty in a way that other questionable conduct of potential employers is not.) No one, least of all the law schools themselves, thinks that by extending this welcome the law schools or their faculties endorse the policies of their employer guests. All that a law school is “expressing” by its hospitality gestures to prospective employers of its students is its desire to help the students get good jobs, for the law school’s sake as well as the students’. (Successful graduates tend to be loyal and generous alumni.) A law school can if it wants make emphatically clear that it is playing host to JAG recruiters only because it must do so or cost its university federal money. The Court pointed out that it had “held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Surely students have not lost that ability by the time they get to law school.”27
+
+The other seven Justices who participated in the decision all joined the Chief Justice’s rebuke of the legal professoriat for overreaching: “In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect.”28 FAIR “plainly overstates the expressive nature of [the law schools’] activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.”29
+
+The Harvard professors (who did their stretching on the principles of statutory interpretation) were right that invalidating the Solomon Amendment would foster other discrimination by educational institutions by curtailing the government’s authority to use its spending power to prevent discrimination. It would empower conservative law schools to refuse to assist employers who refused to promise not to hire homosexuals. But the professors’ solution was so far-fetched as to raise a question of academic integrity. A lawyer whom you hire to represent you can in perfect good faith make any argument on your behalf that is not frivolous. But the professors were not parties to Rumsfeld v. FAIR and so a reader of their amicus curiae brief might expect the views expressed in it to represent their best professional judgment on the meaning of the Solomon Amendment. The brief identifies them as full-time faculty members of the Harvard Law School rather than as concerned citizens, and one expects law professors, when speaking ex cathedra as it were, to be expressing their true beliefs rather than making any old argument that they thought had a 1 percent chance of persuading a court. It is hard to believe that all of the professors who subscribed to the Harvard brief actually thought that interpreting the Solomon Amendment as a nullity was the best interpretation, or that they are interpretive nihilists who believe that the meaning of a text is entirely in the eye of the beholder.
+
+This criticism of the law professors is inapplicable to law schools themselves and to their association (the Association of American Law Schools, another amicus curiae). Of course a law school (and its university) would prefer to have federal money given to it without strings attached, especially strings that will get it in trouble with students and faculty members strongly hostile to the military’s policy on homosexuals. It is hyperbole for the Association of American Law Schools to argue that the price of a law school’s retaining its federal funding is to “abandon its commitment to fight discrimination”30 or that the issue in the case was the right of a university to decide what may be taught.31 But one understands that this is merely lawyer rhetoric in the service of a conventional client interest.
+
+The same cannot be said for the Harvard professors’ amicus brief, or for the brief filed on behalf of a large majority of the faculty of the Yale Law School. That brief restates FAIR’s constitutional argument in exaggerated form, saying that the Solomon Amendment “trample[s] upon the [Yale Law School] Faculty Members’ academic freedom” by forcing them “to assist the military in telling some Yale Law students that they are not fit to serve in our country’s armed forces because of their sexual orientation.”32 No student could think that by virtue of Yale’s bowing to the Solomon Amendment, the law school faculty was complicit with the military policy on homosexuals. If the Yale hospital treats a homophobe who has cancer, is the Yale medical faculty signaling its approval of homophobia? That is the logic of the brief.
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+To bolster its extravagant claim, the Yale brief cites a case in which the Supreme Court held that the First Amendment entitled the NAACP to organize a boycott of merchants who discriminated against blacks:33 “The Court’s decision in Claiborne makes it clear that the First Amendment fully protects the Faculty Members’ refusal to cooperate with or assist, to disassociate from, and thereby to protest against, the military’s discrimination against their gay, lesbian, and bisexual students.”34 But the NAACP was not trying to bite the hand that fed it. The logic of the Yale professors’ reading of Claiborne is that if the Yale Law School refused to allow the federal government to audit its use of federal funds, on the ground that money saved by the auditors might be diverted to the war in Iraq, the First Amendment would entitle Yale to bar the auditors but keep the money. It is no answer that the government has a legitimate interest in auditing government grants but not in discriminating against homosexuals. The discrimination against homosexuals is legal, and the Yale professors’ brief makes no effort to evaluate the reasons for it, which may not be entirely the product of ignorance and malice, as the professors believe. They also fail to note a countervailing First Amendment interest. In discriminating against military recruiters the law schools limit their students’ exposure to views concerning military policy that are contrary to the orthodoxy that dominates the law school community. If the Solomon Amendment is censorship, so is the law schools’ discrimination against military recruiters.
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+The Harvard and Yale law professors’ amicus curiae briefs are conventional in approach, poorly reasoned, and devoid of constructive content. In all but one instance35 the professors did not write the briefs themselves but instead hired a law firm to do so. I am told that at least in the case of the Yale professors’ brief the intellectual input by the professors was substantial. I would be more comfortable had it been insubstantial. Not only is there nothing in the briefs that distinguishes them from the ordinary product of practicing lawyers, but they make some embarrassingly bad arguments and contain no academic insights.
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+These law professors, the cream of the current crop, seem to have no clue as to how to help a court decide a case. Their idea of a persuasive brief is one that bludgeons the judges with precedents that though inapt contain some general language helpful to the cause. They think that the only rhetoric that is effective in the Supreme Court is a legalist rhetoric. They do not understand that the distinctive legal academic culture that has evolved in recent decades could, without offense to the norms of appellate advocacy, have made a distinctive contribution to the Justices’ consideration of Rumsfeld v. FAIR. Missing from the briefs is any discussion of why our armed forces want to continue a ban on homosexuals that has been abandoned by most of the countries that we consider to be our peers, and what effect invalidating the Solomon Amendment would have on the ban, on the quality of the armed forces, and on military justice. Judges are curious about such things. They want to understand the real stakes in a case. They want the lawyers to help them dig below the semantic surface. Maybe the military has reason to believe that lifting the ban on homosexuals all the way would undermine military morale, complicate recruitment, and further strain our already overstretched military. If so, this belief would have to be weighed against the harm to homosexuals36 (indeed, the harm to the military itself) from the ban. The military perforce recruits heavily from a segment of the population that would be upset at the thought of homosexuals’ being entitled to serve with them. And that anxiety—even if no better than an ignorant prejudice—is something that a conscientious Administration would have to weigh, especially when the nation is at war. (I am referring not to the “war on terror,” a locution that is both imprecise and misleading, but to U.S. military operations in Iraq and Afghanistan.) But public opinion on homosexuality is in flux. Abolishing the ban might have no more effect on U.S. military morale than abolishing it in Britain, Israel, and many other countries has had on their militaries.
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+As for the consequences of invalidating the Solomon Amendment—a topic on which academics might be expected to have a unique perspective just by virtue of being academics—one would be that fewer students from elite law schools would be hired by the military because JAG recruiters would not have the same access to those students as other recruiters would. Some of the discouraged students would be homosexual. Homosexuals are not excluded by the armed forces; they are forced to stay in the closet. (The situation was practically though not legally identical before “don’t ask, don’t tell.”) Many homosexuals today are unwilling to remain closeted, but some are willing, even some who attend schools such as Harvard and Yale. If they are recruited into a JAG corps, this may hasten the end of the formal ban on homosexuals. But what is more important, as Peter Berkowitz has pointed out, is that most students at such law schools, whatever their sexual orientation, are liberal.37 The more of them who are recruited for JAG service, the sooner the ban will collapse.
+
+The practical consequences of upholding or invalidating the Solomon Amendment are sociopolitical facts that academics are in a better position to investigate than practicing lawyers. Inquiring into those facts and presenting the results to the courts would be a more useful employment of law professors’ time than hiring practitioners to flog precedents. There is a sheeplike character to all these professors signing on to a practitioner’s brief (the sheep being led by the goat). One might have thought that some of them would speak in their own voice—express an individual view. Can’t a law professor at Harvard or Yale write a brief? Well, maybe not anymore; but he could do the research that only academics can do well, and let the practitioner convey the results in the brief.
+
+Maybe the law professors, or most of them, who signed the amicus curiae briefs were just buckling to student pressure, or demonstrating solidarity with their liberal students, who are in the strong majority in elite law schools. One hopes that that is true and that they can be persuaded to turn their minds to questions fundamental to the judicial process that judges cannot answer, such as the trade-offs between rules and standards or between strict and loose construction. Law professors have better tools for investigating such questions of urgent importance to judges than they used to have, but worse communication with and less insight into the judiciary. The academics’ briefs in Rumsfeld v. FAIR mirror the lack of realism in the teaching of law students about courts. Both realms treat an appeal as a duel of precedents. Neither understands the judicial mind. Neither acknowledges the politicization of constitutional law and the consequences for effective advocacy. Judges sense a widening chasm between the professoriat and the judiciary. In Rumsfeld v. FAIR we glimpse its breadth. If as I suspect the root cause is the increased specialization of academic lawyers, the chasm may be unbridgeable.
+
+
+1. For an acknowledgment and interesting discussion of this point, see Sanford Levinson, “The Audience for Constitutional Meta-Theory (or, Why, and to Whom, Do I Write the Things I Do?),” 63 University of Colorado Law Review 389 (1992). See also Barry Friedman, “The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship,” 95 Northwestern University Law Review 933, 953 (2001); Robert Post, “Legal Scholarship and the Practice of Law,” 63 University of Colorado Law Review 615 (1992).
+
+2. See Harry T. Edwards, “The Growing Disjunction between Legal Education and the Legal Profession,” 91 Michigan Law Review 34 (1992), and, for an amusing anticipation, William L. Prosser, “The Decline and Fall of the Institute,” 19 Journal of Legal Education 41 (1966).
+
+3. The principal exceptions to the jurisdiction of the regional courts of appeals are patent law and probate and domestic relations law, though the exception for probate and domestic relations is only partial. See, for example, Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).
+
+4. Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002).
+
+5. On the decline of the American Law Institute, see Kristen David Adams, “Blaming the Mirror: The Restatements and the Common Law,” 40 Indiana Law Review 205 (2007); Adams, “The Folly of Uniformity? Lessons from the Restatement Movement,” 33 Hofstra Law Review 423 (2004).
+
+6. See A. W. B. Simpson, “Legal Reasoning Anatomized: On Steiner’s Moral Argument and Social Vision in the Courts,” 13 Law and Social Inquiry 637 (1988).
+
+7. I. de S. and Wife v. W. de S., Y.B. Liber Assisarum, 22 Edw. 3, f. 99, pl. 60 (1348 or 1349).
+
+8. Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669).
+
+9. “Is It Possible to Teach the Meaning of Precedent in the Era of the Roberts Court?” Dorf on Law, July 9, 2007, http://michaeldorf.org/2007/07/is-it-possible-to-teach-meaning-of.html (visited Sept. 24, 2007).
+
+10. Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology,” 36 Journal of Legal Education 518 (1986).
+
+11. Not usually at any rate; for American judges do sometimes engage in civil disobedience, as argued in Paul Butler, “When Judges Lie (and When They Should),” 91 Minnesota Law Review 1785 (2007).
+
+12. See, for example, Green v. Bock Laundry Machine Co., 490 U.S. 504, 527–528 (1989) (Scalia, J., concurring); City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 449 n. 4 (2002) (Scalia, J., dissenting); Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” 1989 Duke Law Journal 511, 515 (1989); John F. Manning, “The Absurdity Doctrine,” 116 Harvard Law Review 2387, 2391, 2419–2420 (2003). For other judicial endorsements of the doctrine, see, for example, Lamie v. United States Trustee, 540 U.S. 526, 534 (2004); United States v. American Trucking Associations, Inc., 310 U.S. 534, 543–544 (1940); Krzalic v. Republic Title Co., 314 F.3d 875, 879–880 (7th Cir. 2002); United States v. Aerts, 121 F.3d 277, 280 (7th Cir. 1997). Professor Manning himself rejects the doctrine, but reaches many of the same conclusions (including Blackstone’s concerning the Bolognese surgeon’s case) as those who accept it. See, for example, Manning, above, at 2461–2463.
+
+13. Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 57–59 (2006).
+
+14. 18 U.S.C. § 2252A(a)(5)(B).
+
+15. An exception, though not a happy one, is Hart’s “time chart of the Justices.” See chapter 10.
+
+16. On the limitations of judicial biographies, see Richard A. Posner, Law and Literature 357–377 (revised and enlarged ed. 1998).
+
+17. See id. at 375–377. I attempted such a study in my book Cardozo: A Study in Reputation (1990). See also my article “The Learned Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511 (1994). There are, of course, other such studies. See, for example, Ben Field, Activism in Pursuit of the Public Interest: The Jurisprudence of Chief Justice Roger J. Traynor (2003); Robert Jerome Glennon, The Iconoclast as Reformer: Jerome Frank’s Impact on American Law, ch. 5 (1985).
+
+18. Or rather from most biographies. Andrew Kaufman’s 735-page biography of Cardozo provides a comprehensive and convincing assessment of Cardozo’s judicial opinions. Kaufman, Cardozo, chs. 12–22 (1998).
+
+19. 126 S. Ct. 1297 (2006). Justice Alito did not participate.
+
+20. “Policy on Homosexual Conduct in the Armed Forces,” Memorandum from Secretary of Defense Les Aspin to the Secretaries of the Army, Navy, and Air Force, and to the Chairman of the Joint Chiefs of Staff (July 19, 1993), http://dont.stanford.edu/regulations/lesaspinmemo.pdf (visited Sept. 24, 2007). The policy was codified by Congress in 10 U.S.C. § 654(b).
+
+21. Brief of NALP et al., 2005 U.S. S. Ct. Briefs LEXIS 622, at n. 12 (Sept. 20, 2005) (footnotes omitted).
+
+22. 10 U.S.C. § 983 (Supp. 2005).
+
+23. 390 F.3d 219 (3d Cir. 2004).
+
+24. Brief of Professors William Alford et al., 2005 U.S. S. Ct. Briefs LEXIS 630, at n. 22 (Sept. 21, 2005) (footnote omitted).
+
+25. 126 S. Ct. at 1308.
+
+26. Id.
+
+27. Id. at 1310.
+
+28. Id. at 1313.
+
+29. Id.
+
+30. Brief for the Association of American Law Schools, 2005 U.S. S. Ct. Briefs LEXIS 637, at n. 16 (Sept. 21, 2005).
+
+31. Id. at n. 29–30.
+
+32. Brief Amici Curiae of Robert A. Burt et al., 2005 U.S. S. Ct. Briefs LEXIS 638, at nn. 2–3 (Sept. 21, 2005).
+
+33. Id. at nn. 13–14, discussing National Association for the Advancement of Colored People v. Claiborne, 458 U.S. 886, 911, 913 (1982).
+
+34. Brief Amici Curiae of Robert A. Burt et al., note 32 above, at n. 14.
+
+35. Brief for Amicus Curiae the American Association of University Professors, 2005 U.S. S. Ct. Briefs LEXIS 641, at nn. 2–3 (Sept. 21, 2005). This brief states that “a faculty is entitled to make the academic judgment that assisting recruitment by an employer that refuses to hire openly gay students is akin to failing a student in class merely for being gay.” Id. at n. 12. That is like saying that teaching evolution to a class that contains believers in biblical inerrancy is akin to flunking a student because he is a fundamentalist Christian.
+
+36. “It is terrible to tell people they are unfit to serve their country, unless they really are unfit, which is not the case here.” Richard A. Posner, Sex and Reason 321 (1992).
+
+37. Peter Berkowitz, “U.S. Military: 8, Elite Law Schools: 0, How Many Professors Does It Take to Misunderstand the Law?” Weekly Standard, Mar. 20, 2006, p. 10.
+
+
+
+
+
+9
+
+
+
+
+
+Is Pragmatic Adjudication Inescapable?
+
+
+
+
+
+The word that best describes the average American judge at all levels of our judicial hierarchies and yields the greatest insight into his behavior is “pragmatist”1 (more precisely, as I shall explain, “constrained pragmatist”). It is not all that is left after legalism, extreme attitudinalism, and the compulsion of comprehensive theory are rejected as being inadequately descriptive of judicial behavior. But it is a lot. Brian Tamanaha estimates that more American judges fit the pragmatist label than any other,2 but it would be more accurate to say that most American judges are legalists in some cases and pragmatists in others; for remember that legalism is a pragmatic tactic, though it need not be only that. And many judges of either inclination encounter cases in which neither set of techniques works—the legalist techniques run out but the consequences of the decision are unknown; or perhaps a strong moral or emotional reaction (maybe indignation aroused by the conduct of one of the parties) overrides both a legalistic response and a concern with consequences. Nevertheless the pragmatic vein in American judging is wide and deep.
+
+It was as a style of philosophizing that the word “pragmatism” first achieved widespread currency in American intellectual circles. Pragmatism was the invention of three American philosophers—Charles Sanders Peirce, William James, and John Dewey—whose lives overlapped and who among them spanned almost a century, from the late 1860s to the early 1950s, although the antecedents reach back to the Sophists and Aristotle and less remotely to Hume, Mill, Emerson, Hegel, and Nietzsche. The views and methods of the classic American pragmatists were diverse (and only Dewey was actually trained as a philosopher), but they had in common a turning away from the traditional philosophical agenda of the West. The agenda had been set by Plato and was concerned primarily with investigating the meaning and possibility of truth, the foundations of knowledge, modes of reasoning, the nature of reality, the meaning of life, the roles of freedom and causality in human action, and the nature and principles of morality. The pragmatists turned away not only from the topics but also from the methodology of the philosophical mainstream, with its emphasis on conceptualism, the a priori, and logical rigor. They advocated a radical empiricism in which propositions would be evaluated by their observable consequences rather than by their logical antecedents—advocated, in other words, an extension of the scientific method into all areas of inquiry. Dewey called his brand of pragmatism “experimentalism,” and the word conveys an apt sense of the tentative, antidogmatic, to a degree antitheoretical outlook that characterized (and characterizes) philosophical pragmatism—“an instrumentalist or problem solving approach to ideas and institutions. On a pragmatist view, our ideas, principles, practices and institutions simply are tools for navigating a social and political world that is shot through with indeterminacy.”3
+
+Pragmatism had been hatched in an informal discussion group in Cambridge, Massachusetts, in the early 1870s. The participants included not only Peirce and James but also, among others, the young Holmes. Precisely what contribution Holmes made to the birth of philosophical pragmatism is unclear. But throughout his life his thought was strongly marked by pragmatism. The pragmatic approach to law was announced in the famous opening sentence of The Common Law (1881) (“The life of the law has not been logic; it has been experience”) and elaborated in that book and in a later article, “The Path of the Law.”4 In these and other works, and in many of his judicial opinions, Holmes rejected the then orthodox notion that judges could decide difficult cases by a process of or very similar to logical deduction from premises given by authoritative legal texts, or by unquestioned universal principles that inspire and subsume those texts (“natural law”). He argued that judges in difficult cases made law with reference to the likely social and economic consequences of their decisions, and that their intuitions about those consequences, rather than the abstract moral principles and formal legal analysis deployed in conventional judicial opinions, drove legal change and had made the law what it had become. Nor did he think that judges engaged in bloodless policy science. He thought that their political views, such as fear of socialism, were major influences on their decisions.
+
+Philosophical and legal pragmatism coevolved. A celebrated essay by John Dewey drew heavily on Holmes’s writings.5 Published in 1924, just as legal realism was getting under way, the essay urged judges and lawyers to turn from conceiving of legal decisions as the products of deduction from rules taken as given to understanding the practical consequences of legal decisions and shaping the law accordingly. Dewey advocated a forward-looking, empiricist, even political—though in a nonpartisan sense—approach, as distinct from the backward-looking syllogistic approach (and other mystifications, such as “legal reasoning by analogy”) of conventional legal thinkers. He was in sync with Holmes, who also had a nondoctrinaire, open-minded, experimentalist approach to law and public policy, as when in his judicial decisions he urged that the Supreme Court not cut off in the name of constitutional rights the newfangled social welfare legislation being enacted by states, which he viewed as laboratories for social experimentation that the Court should allow to continue, or when he said anent socialism (which he opposed), “Of course I have no a priori objection to socialism any more than to polygamy. Our public schools and our post office are socialist, and wherever it is thought to pay I have no objection except that it probably is wrongly thought.”6
+
+When Dewey died in 1952, philosophical pragmatism underwent an eclipse from which it emerged twenty years later through the efforts of the philosopher Richard Rorty, who built on work by Wittgenstein, Quine, and Davidson that had strong affinities with the work of the original pragmatists. In the last quarter century philosophical pragmatism has enjoyed a renascence and for the first time has begun to attract a European following, notably in the figure of Jürgen Habermas, who has acknowledged a debt to the American pragmatists. Before Habermas virtually the only European pragmatic philosopher had been F. S. C. Schiller, and his influence had been limited.
+
+Despite the fading of the legal realist movement in the early 1940s, American legal pragmatism continued throughout the period of philosophical pragmatism’s eclipse to be a highly influential tendency in legal thought, and so it continues to be. Only recently, however, has it become self-conscious, in the sense that advocates of legal pragmatism are endeavoring to define it carefully, to compare it with other schools of legal thought such as economic analysis of law, to situate it in relation to other currents of social thought such as philosophical pragmatism, to apply it to specific legal doctrines and decisions, and to evaluate its strengths and limitations.
+
+I said that philosophical and legal pragmatism coevolved. But it would be a mistake to suppose legal pragmatism identical to or dependent on philosophical pragmatism, so that criticisms of philosophical pragmatism would necessarily be criticisms of legal pragmatism. The case for legal pragmatism is based not on philosophical argument but on the needs and character of American law. I note at the end of this chapter that legal thinking in Continental European judiciaries is less pragmatic than in the United States because of the institutional differences, discussed in chapter 5, between the American judicial system and the European career judiciaries.
+
+I do not even think that legal pragmatism is strongly derivative from philosophical pragmatism. Its origin is more likely the nineteenth-century loss of faith in natural law, a loss connected with the loss of religious faith that many intellectuals experienced in the wake of Darwin and the ascent of a scientific outlook arising from the growing success of science as a mode of understanding and control. If the common law, which loomed larger in the nineteenth century than it does today, is not the translation of natural law into positive law, or the judicial adoption of immemorial custom as Blackstone and later Hayek urged, then it must be something that judges make up as they go along. It must mean that judges in the Anglo-American tradition really are occasional legislators. That was Holmes’s conclusion.7
+
+Hayek was a legalist tout court, but Blackstone’s case is more complicated. There is a sense in which he was a founder of legal pragmatism. His claim that the common law was of Saxon origin was a fiction useful for justifying judicial creativity in terms congenial to eighteenth-century thinking. In effect he licensed judges to justify changing the common law by claiming that by doing so they were restoring its original meaning.8 This was pragmatism as fake originalism. And we recall that Blackstone, in his response to the Bologna bloodletting statute, adopted a purposive theory of statutory interpretation—a key plank in the platform of legal pragmatism.
+
+Saxon law cannot be our answer to the question, if judges are indeed occasional legislators, what are the sources and content of the legislation they enact in the course of deciding cases? The answer at which Holmes hinted is ideology,9 and it was the answer given by many of the legal realists of the 1920s and 1930s. Some thought all law was politics in a narrow partisan sense, denounced judges for their reactionary politics, and urged the appointment of liberals to the bench. But this approach seemed to imply that one group of usurpative judges should simply be replaced by another, a thought remote from Holmes’s protorealism and troubling to influential judges such as Cardozo and Hand who agreed with Holmes. Those judges, joined by thoughtful realists such as Felix Cohen, Max Radin, and Karl Llewellyn, wanted the judiciary to be “realistic,” practical, think things not words, recognize the epistemic limitations of legalism. But they did not want them to be political in the narrow sense of trying to retard or (a favorite realist project) promote the New Deal.
+
+The realists could have pointed out that even a “politicized” judiciary is not usurpative in a society that is politically homogeneous. Law is shot through with political values, which when endorsed by the public at large provide a neutral background of assumptions and presuppositions rather than being a cockpit of contention. That which is unchallenged seems natural rather than political. (We do not think that our disapproval of cannibalism or infanticide is merely a political opinion.) This is the situation in large stretches of the common law today—for it is false that “the increasingly heterogeneous nature of modern society . . . renders it highly unlikely that a social consensus will exist regarding any ethical principle or policy goal that might ground common law adjudication.”10 Contract law, for example, is suffused with the values of capitalism, a political theory and practice. Yet as with property law, tort law, commercial law, corporate law, and antitrust and securities law—among many other fields, both common law and statutory—the basic tenets of contract law are uncontroversial because America is so strongly committed to capitalism. In many areas of law, however, including some of the areas just listed before capitalism vanquished communism in the battle of economic ideologies, there was no consensus when the realists wrote. Where did that leave the judge who could no longer accept that his role was exhausted in the technical task of ascertaining and applying preexisting legal rules? How other than by reference to his political opinions was he to resolve politically consequential issues that could not be resolved by conventional legal reasoning? The realists thought the answer lay in bringing the methods and insights of the social sciences into law. But either the social sciences were not up to the job or the realists were not up to the social sciences. Not until the law and economics movement gained momentum decades after realism faded would social science make a major substantive contribution to legal pragmatism.
+
+A diversity of moral and political views creates pressure for resolving disputes on the basis of a thin proceduralism, which by avoiding substantive commitments provides a common ground on which persons of antagonistic substantive views can meet.11 That is what we observe in the legal process school (discussed further in chapter 10), which succeeded legal realism. Judges are adjured by that school to be impartial, of course, but also to deliberate patiently and with an open mind and to base jurisdictional allocations—between judge and jury, trial court and appellate court, court and legislature, and so forth—on relative institutional competence and thus to be respectful of other institutions (especially legislatures and administrative agencies; the legal process school had a Progressive Era and New Deal flavor). Judges are especially adjured to be mindful of the limits of their knowledge and the sources of possible bias and to base their decisions on neutral principles rather than on the consequences for society, or for the litigants, of deciding a case one way or another. But saluting these content-free, technocratic-seeming precepts is to adjudication as spring training is to the baseball season. The precepts are warm-up measures. Closure requires agreement on substance. Without that, the choice of neutral principles is up in the air. No more than legal realism could legal process offer a substitute for legalism on the one hand and politics and emotion on the other.
+
+The idea of neutral principles reflects a confusion between legislation and case law that came naturally to persons who were Progressives or New Dealers and thus products of eras in which legislation, which declares rights and obligations in general language and in advance of implementation, was exalted by advanced thinkers over the common law. Judges imbued with the values and methods of the common law were thought (not without reason) reactionary; the evidence was judicial hostility to labor unions, judicial invalidation of social legislation in the name of “liberty of contract,” the perceived inadequacy of tort law as a regime for regulating safety, and the interpretive principle that statutes in derogation of the common law are to be strictly construed. Neutral principles were offered as the antidote to political decision making. But when a court states a new principle in the course of deciding a novel case, more often than not the statement’s semantic reach exceeds what is necessary to decide the case. If the court in later cases insists in the name of neutrality on enforcing the principle to the full literal extent of its original statement, come what may, it will be refusing to learn from experience. It will be imitating a legislature, rather than using the knowledge acquired from cases that the legislature did not foresee to fine-tune the legislative rule.
+
+With the increasing intellectual ambitiousness of academic law, comprehensive theories, substantive rather than procedural in character, have been proposed to fill the gap between the orthodox legal materials and the necessity of deciding a case even when those materials do not generate a convincing answer. These theories mainly are normative but their proponents invariably find at least traces of them in case law. Most of the theories have been proposed for constitutional law, that least disciplined area of American law, and so are examined in Part Three. The most important theory that is not limited to constitutional law, though it embraces it, is economics. It is offered to explain legal doctrines and case outcomes in some fields of law, mainly though not only the common law fields, and to guide legal reform in the remaining fields.12 As a normative theory, economic analysis of law is controversial. A judge’s choice to use it to generate outcomes in the open area is an ideological choice except when there is broad agreement that economics should guide the decision; consensus represses ideological conflict. As a positive theory, however, economic analysis of law does well in explaining legal doctrines in a variety of commercial and noncommercial fields of law, including broad swaths of tort, contract, criminal, intellectual property, environmental, labor, and even constitutional law, along with major parts of remedial and procedural law. But it would be odd to describe American judges as “economists,” or even as economic analysts of law. Very few of them have a substantial background in economics, and in only a few areas, such as antitrust law, are cases pitched to judges and juries in explicitly economic terms. The significance of economics for the study of judicial behavior lies mainly in the consilience of economics with pragmatism.13 The economist, like the pragmatist, is interested in ferreting out practical consequences rather than engaging in a logical or semantic analysis of legal doctrines.
+
+Legalists object that if judges do not talk economics in their opinions, and they rarely do, they cannot be doing economics.14 But this confuses semantics with substance. There are parallel vocabularies in which to discuss questions such as when an accidental injury should give rise to a claim for damages. One vocabulary, very old, is legal, and the other, much newer, is economic. The economic study of the common law, and of other bodies of American law as well, has found considerable isomorphism between legal and economic analysis. The continued use of different vocabularies illustrates “contextual convergence”: judges continue to employ a traditional vocabulary of rights and duties while gradually investing the words with an economic meaning.15 This is an echo of Holmes’s argument in The Common Law and “The Path of the Law” that common law judges use an inherited moralistic vocabulary in a nonmoralistic way.
+
+But can legal pragmatism really do better than legalism (cannot resolve tough cases), legal realism (too vulgarly political in some versions, too lacking in content in others), legal process (too thinly procedural), or comprehensive theories (too controversial and too remote from the judicial mind-set) in explaining the behavior of American judges?
+
+The core of legal pragmatism is pragmatic adjudication, and its core is heightened judicial concern for consequences and thus a disposition to base policy judgments on them rather than on conceptualisms and generalities. But rather than being a synonym for ad hoc adjudication, in the sense of having regard only for the consequences to the parties to the immediate case, sensible legal pragmatism tells the judge to consider systemic, including institutional, consequences as well as consequences of the decision in the case at hand. He thus must consider the effects on commercial activity of disregarding the actual wording of a contract or failing to adhere to legal precedents on which the commercial community has come to rely.
+
+Sensible pragmatic judges are to be distinguished from shortsighted pragmatists, blinded by the equities of the case to the long-term consequences of their decision; it is for the latter that the pejorative expression “result oriented” should be reserved. Imagine a judge (there are more than a few) who does not think that the sale or use of marijuana should be outlawed and the sellers of it harshly punished, as they are under federal law today. He might be inclined to go easy on persons charged with marijuana offenses. But the inclination would be offset by the realization that judges would be bound to lose a guerrilla war with Congress over the punishment of drug trafficking, by concern with the possibility of compensatory harshness on the part of judges (and there are many) who favor the application of strict drug laws to marijuana, by respect for the beneficial consequences of the separation of powers, by the advantages of uniform as opposed to ad hoc sentencing policies, and even by disapproval of pleonexia. That was Aristotle’s term for trying to get more than your fair share. It is what a person does who commits an acquisitive crime, such as selling drugs, because by doing so he is stealing a march on the law-abiding. The worker struggling to get by without violating the law is justifiably indignant at the spectacle of the drug dealer flaunting his jewelry and fancy cars. And because it is an acquisitive crime, drug dealing can be deterred only by the threat of severe punishment, even if the crime itself seems rather trivial from either a practical (harm to society) or a moral standpoint.
+
+In contrast to pragmatists, legalists tend (or pretend) to give controlling weight to an arbitrary subset of institutional consequences of judicial decisions. They are hypersensitive to the uncertainty that can result from loose construction of statutes and contracts, from seeking out the purpose of a rule to determine the rule’s scope and application, from salting doctrine with policy, and from aggressive distinguishing and overruling of precedents. Pragmatists do not see how so one-sided an emphasis on possible negative consequences of pragmatic judging can be sensible. But more interesting is the fact that contemporary justifications of legalism should rest as heavily as they do on its consequences, rather than on claims of what “law” means or requires. So pervasive is pragmatic thinking in the American political culture that legalists are driven to defend the blinkered results to which their methodology of strict rules and literal interpretations tends as yielding better consequences than a fuller engagement with the facts of a case, a greater willingness to knead rules into standards, and a looser interpretation of rules that were created without reference to the situation presented by the new case would do.
+
+Pragmatists believe that the claim that legalism has better social consequences is dogmatic and implausible, rather than being a hypothesis that legalists are willing to see tested. Legalists argue that adjudication should be backward-looking, that judges should not try to keep law up to date but should leave to legislatures in the case of statutory law, and to the amendment process in the case of constitutional law, any needed updating of statutes or the Constitution. But they do not back their argument with facts concerning the ability of legislatures to update legislation in the face of the inertial forces built into the legislative process, or the feasibility of a program of continuously amending the Constitution to keep it up to date. They do not try to show what the state of the law, and of the society, would be today had American judges, beginning with that great loose constructionist John Marshall, consistently adhered to the legalist creed.
+
+Legalists even accept without demur a vast area of acknowledged indeterminacy of judicial rulings. Anytime the standard of appellate review is deferential—as where findings of fact made by a trial judge are upheld because they are not “clearly erroneous,” or a ruling on evidence is upheld because it is not an “abuse of discretion”—the appellate court is implying that it would also uphold the opposite ruling. For it is saying not that the finding of fact or the evidentiary ruling is correct but only that it is within the bounds of the reasonable. Since the ruling and its opposite cannot both be correct, it must be that legalism—which does not question the propriety of deferential appellate review of the types of ruling that typically receive such review—countenances a great deal of error.
+
+Yet legal pragmatism may seem as empty as the legal process approach to which it is a successor, because it does not weight the consequences of a decision or even specify which consequences should be considered. Consequences are facts, and facts have no normative significance in themselves. One cannot derive “ought” from “is.” A value must be placed on each consequence. But often the value and its importance are obvious. To deem the consequences of mass murder “harmful” one has to believe mass murder a bad thing. But one does not need an elaborate conceptual apparatus to arrive at or justify the belief. All one needs is to share the basic moral values of one’s society.
+
+This means, though, that what counts as an acceptably pragmatic resolution of a dispute is relative to the prevailing norms of particular societies. Pragmatism provides local rather than universal guidance to judicial action. And its local utility depends on the degree to which the society is normatively homogeneous. The more homogeneous, and therefore the wider the agreement on what kind of consequences are good and what kind are bad (and how good and how bad), the greater the guidance that pragmatism will provide. By way of humble analogy, most people in America believe that (with certain qualifications) if a watch is broken it should be fixed. The belief is not inevitable. There might be a society in which people believed it is bad luck to repair a watch. But given the American belief, the fact that a watch is broken is a reason on which almost everyone can agree for fixing it. It is not a conclusive reason, because (these are the qualifications to which I alluded) the owner of the watch might be glad to be rid of it, the watch might cost more to repair than to replace, or it might not have been used to keep time (maybe it was just valued as an antique). But there is enough agreement on the relevant considerations to enable a satisfactory pragmatic judgment on what to do with a broken watch.
+
+Similarly, even in our politically and morally divided society there is convergence on many of the beliefs that undergird legal principles. For example, although we lack the information we would need in order to be able to assess the relative efficiency of rules and standards in general, there are many specific areas in which the better choice is clear. We must not make the best the enemy of the good. Although pragmatic adjudication rarely generates enough information to enable a decision that produces a social optimum, often it produces an approximation that is good enough for the law’s purposes.
+
+This possibility is given stylized representation in Figure 1. The marginal benefits (MB) and marginal costs (MC) of a safety measure that would avoid an accident that has given rise to a tort suit are functions of the type and quantity of the precautions that would have averted the accident. The optimal level of precautions (q*) is given by the intersection of the two functions. To the right, an additional expenditure on safety would cost more than the benefit it would confer; to the left, an additional expenditure on safety would cost less than the benefit. Suppose q* cannot be determined by the methods of litigation. The court may nevertheless know enough about the benefits and costs to be able to create the “window” formed by the two inner vertical lines.16 At the left side of the window frame the benefits of a further effort to eliminate or prevent the accident comfortably exceed the costs. At the right side the reverse is true. If the judge knows whether the case is nearer the left or the right side of the window, he knows which party has the better case. He does not have to be able to determine the optimal level of precaution in order to make a correct decision.
+
+
+
+Figure 1. Tolerable Windows
+
+Legal pragmatism is “thicker” than the approach of the legal process school, the school of thin proceduralism. There is a difference between exhorting judges to be impartial, open-minded, neutral, and so forth and exhorting them to base their decisions on consequences. For then at least they must attend to consequences, and this has significant implications for how a judge approaches a case, what he demands from the lawyers, what research he conducts, and what he discusses in his opinions. Most often a case is difficult because it requires striking a balance between two interests, both of social value, such as civil liberties and national security, intellectual creativity and access to already created intellectual works, a woman’s welfare and her fetus’s survival, a fair trial and a public trial, privacy and information. There may be no objective method of valuing the competing interests. But analysis can be made more manageable by pragmatically recasting the question as not which of the competing interests is more valuable but what are the consequences for each interest of deciding the case one way rather than the other. If one outcome involves a much smaller sacrifice of one of the competing interests, then unless the two are of very different value that outcome will probably have the better overall consequences. That was the approach the Supreme Court took in Roe v. Wade, in balancing the mother’s interest against the state’s interest in fetal life, though the approach was executed ineptly.
+
+Moreover, pragmatic analysis will sometimes reveal, as in the Leegin case (see chapter 1), that the conflict is a false one, as when consumer and producer interests are mistakenly thought to be in conflict when producers seek to fix minimum retail prices for their goods in an effort to encourage retailers to provide presale services valued by consumers.
+
+The pragmatic judge is less interested in whether the facts of a case bring it within the semantic scope of the rule agreed to govern the case than in what the purpose of the rule is—what consequences it seeks to induce or block—and how that purpose, those consequences, would be affected by deciding the case one way or the other. The advantages of the pragmatic approach are exhibited in a recent case, Yi v. Sterling Collision Centers, Inc.17 The issue was whether the defendant, sued for violating the overtime provisions of the Fair Labor Standards Act, could bring itself within one of the Act’s exceptions. The district court had held, in accordance with a long line of cases, that the defendant had not presented “clear and affirmative evidence” of its entitlement to the exception. Because so many cases had recited this formula, it was natural for lawyers and judges to treat it as gospel and ask whether the defendant had presented such evidence. But in doing so they were ignoring Holmes’s warning that “to rest upon a formula is a slumber that, prolonged, means death.”18 For what could “affirmative evidence” mean? And since no one believes that to prove a violation of the Fair Labor Standards Act the plaintiff must present “clear and affirmative evidence,” why should the defendant have to do so in order to bring itself within an exception to the Act? Why the asymmetry?
+
+The court of appeals in Yi traced the formula back to its origin and discovered that it had first appeared in a case decided in 1984, where it had not been explained but had merely been attributed to two earlier cases. One of them had said only that the burden of proving entitlement to an exemption is on the defendant (of course), the other that the defendant “has the burden of establishing the exemption affirmatively and clearly.” In support of this proposition the court had cited a case that again without explanation had said that an employer seeking an exemption “has the burden of showing affirmatively that [the employees] come clearly within an exemption provision.” Earlier still, another case had offered a variant of this formulation—“the burden is upon the appellant to bring itself plainly and unmistakably within the terms and the spirit of the exemptions”—which had in turn been lifted from a 1945 decision in which the Supreme Court had said that “any exemption from such humanitarian and remedial legislation [i.e., the Fair Labor Standards Act] must . . . be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”19
+
+At this point the trail grows cold. But one sees what happened—what so often happens when judges think words not things. The early opinions used “affirmatively” and “clearly” or (equivalently) “plainly” and “unmistakably” merely to indicate that exemptions are to be construed narrowly—this is unquestionably the meaning of the passage in the Supreme Court’s opinion (Phillips)—and also that the burden of proof is on the defendant, since entitlement to an exemption is an affirmative defense. The phrases were then garbled (“affirmative evidence” implies that there must be a concept of “negative evidence”), the garbled form repeated, and the original meaning forgotten.
+
+Even if understood as merely a clumsy invocation of the familiar principle of statutory interpretation that exemptions from a statute that creates remedies should be construed narrowly, the “clear and affirmative evidence” formula is unsatisfactory because the underlying principle is mysterious. Why should one provision in a statute take precedence over another? It shouldn’t. But if you go back to the origin of the formula in the Phillips opinion—“to extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people”—you will see that the Court was merely cautioning that an exemption should not be interpreted so broadly as to render the statutory remedy ineffectual or easily evaded.
+
+Many appellate cases, one might even say the typical such case, involve a dispute over the scope or application of a rule; in Yi it was the rule governing the defendant’s burden of proving entitlement to an exception from a statutory duty. The scope or application is likely to be uncertain; otherwise the case would probably not have been brought, or if brought probably would not have reached the appellate level.20 There are two ways to determine whether a new case fits under a rule. The first is to examine the extension of the rule—that is, to determine what instances fall within its meaning (as you would gather meaning, knowing nothing about the context, from a dictionary plus the rules for constructing English sentences), and then to determine whether the facts of the case at hand correspond to one of those instances. The second method, which is the pragmatic, is to determine the purpose of the rule—almost always there is a discernible purpose—and then pick the outcome that will accomplish that purpose. A purpose having been identified, the rule can be restated in practical rather than legalistic terms. The search for the purpose carries the judge beneath the verbal surface of the law to the social reality that the law is trying to shape. He must of course try not to exaggerate the thrust of the statute by ignoring a legislative compromise that may have blunted that thrust. He must save the legislation from being undone by unforeseen contingencies rather than improve it.
+
+The question in Yi was whether the defendant was within an exemption for employers who pay their employees on a commission rather than a salary basis. The answer required identifying the purpose of such an exemption and then determining whether the defendant’s method of compensating its employees accomplished that purpose. Neither step was particularly controversial for the politically diverse panel (two judges appointed by Republican Presidents, one by a Democratic President).
+
+Many areas of consensus in the law today are ones in which economic analysis provides a good account of what judges are doing, whether or not they are conscious that what they are doing is economics. Cost-benefit analysis—the economist’s method of determining what course of action to follow—is simply a disciplined way of weighing the consequences of alternative courses and choosing the one that is likely to produce the largest surplus of good over bad consequences. Remember that when cases are difficult to decide it is usually because the decision must strike a balance between two legitimate interests, one of which must give way. Pragmatism is a better description of judicial behavior in these areas than economics only because judges are more likely to recognize themselves in a description of a pragmatist than in a description of an economist, pragmatism being so deeply ingrained in American popular and political culture.
+
+Just as legal pragmatism incorporates economic analysis of law as one of its methods, so, we must not forget, it incorporates legalism as another. An example is insistence on jurisdictional niceties, such as that a federal court must not adjudicate a case unless the case meets exacting and sometimes quite arbitrary requirements concerning deadlines for filing (for example, the requirement that in an appeal to a federal court of appeals in a civil case to which the federal government is not a party, the notice of appeal must be filed within 30 days of the final judgment by the district court); that the parties must have a particular type of stake in the case for it to be justiciable (the “standing” requirement); that it be “ripe” and not “moot”; and so forth. The effect of the concepts of standing, ripeness, mootness, and other legalist obstacles to decision on the merits of a case is to delay judicial intervention in the affairs of the nation, thus creating space for social experimentation. It would be unpragmatic for a court to invalidate a program as unconstitutional or otherwise unlawful before the program had a chance to prove its worth empirically.
+
+A related point is that the pragmatic judge is likely to favor narrow over broad grounds of decision in the early stages of the evolution of a legal doctrine. Deciding a case on a narrow ground is a corollary of an empiricist or experimentalist orientation. The narrower the ground, the less the judges are interfering with the challenged activity. The broader the ground, the less scope the judges will have for obtaining from future cases additional information bearing on the consequences of the activity, because the decision will be a precedent that until overruled or distinguished will rule new cases within its semantic domain, which may be vast.
+
+This last point underscores the difference between the pragmatist and legal process approaches. The latter insists on the disciplining effect of neutral principles—of the judge’s committing himself to a position that will prevent him from deciding future cases in accordance with his political preferences. (So a broad precedent is an example of a neutral principle.) Legal process is thus another example of legalism in the service of pragmatism. The pragmatist who rejects the legal process approach accepts the value of neutrality and of the doctrine of precedent but worries about premature commitment to a position with unforeseeable consequences. He therefore commends not only the distinguishing of precedents as a way of reaping the fruits of knowledge gained from fresh facts revealed by new cases but also the refusing to cut off further inquiry by laying down a broad principle in the first case in a line of cases. Would it have been wise for the Supreme Court in Brown v. Board of Education to have ruled flatly that the Constitution is colorblind and race therefore may never be used by a public institution as a basis for action, thus ruling out affirmative action by such institutions before it had been proposed, let alone implemented? Wise or unwise, it would have been unpragmatic.
+
+Neutral principles are a legalist trace in a school (the legal process school) that thought it had turned its back on legalism and was merely tempering legal realism. With neutral principles as with originalism, the past is allowed to rule the present and future. The neutral principle is laid down on the basis of what is known today but establishes a commitment for tomorrow, when much more may be known. Since the consequences of a decision always lie in the future, legal pragmatism is forward-looking. Adherence to precedent performs important functions, but ultimately precedent, and thus the past, is servant rather than master to the pragmatist. The value to him of the study of history lies less in directing judgment than in identifying rules that have nothing to validate them but a pedigree. Like the weakened descendants of overbred aristocrats, such rules are candidates for a critical reexamination that may lead to their supersession. Pragmatic judges thus are historicist in the counterintuitive sense of being alert to the possibility that a current legal doctrine may be a mere vestige of historical circumstances and should be discarded. Historical inquiry is like distinguishing; it is a search for differences rather than for similarities.21
+
+A key tenet of legal pragmatism is that no general analytic procedure distinguishes legal reasoning from other practical reasoning. Law has a special vocabulary, special concerns, special traditions. But the analytical methods used by judges are those of ordinary, everyday reasoning, which is concerned with practical benefits and costs. Yi shows judges moving beyond semantics to engage with the concrete interests presented by a case. At a deeper level legal pragmatism asks litigants and their lawyers, along with judges and their law clerks, to go beyond argument—beyond “rhetoric” in the pejorative sense of verbal jousting ungrounded in facts—to data: statistics, precise measurements, photographs, diagrams.
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+Judges are lawyers and bring to their judging the lawyer’s habitual exaggeration of the power of argument, and thus of words, to resolve disagreements. But they are less mesmerized by words than lawyers are22 because they have to choose between competing arguments that may be finely balanced. They are not judging a debate, moreover; they are looking for a sensible resolution and this pushes them to look beyond the bickering of the lawyers to the concrete interests at stake.
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+Lawyers are like mathematicians in wanting to manipulate symbols, albeit verbal instead of mathematical ones, rather than to investigate the relevant phenomena, which are the social interactions that law regulates. The greater the separation between legal language and the language in which nonlawyers discuss social and personal issues, the easier it is for lawyers and judges to think that their business is indeed to manipulate symbols rather than to engage with social reality. Bryan Garner’s invaluable Redbook is a reminder—in its lists of “stuffy” words, plethoric phrases, doublets (such as “cease and desist,” “free and clear”), dispensable legalese (“arguendo,” “gravamen,” “instant case,” “simpliciter,” “nexus,” and the rest), and common words that bear a special meaning in law (such as “appearance,” “consideration,” “constructive,”23 “presumption,” “servant,” etc.)24—of how easy it is to lose sight of reality in a welter of verbiage.
+
+I must not oversell pragmatism. It is not a machine for grinding out certifiably correct answers to legal questions. It does not dissolve political judging into policy science. It does not transform judges into expert administrators and law into cost-benefit analysis. It acknowledges the inevitability that like cases will often be treated inconsistently not only because different judges weigh consequences differently depending on a judge’s background, temperament, training, experience, and ideology, which shape his preconceptions and thus his response to arguments and evidence, but also because, for the same reasons, different judges see different consequences. Legal pragmatism accepts the empirical evidence of the attitudinal school. And it sets no higher aspiration for the judge than that his decisions be reasonable in light of the warring interests in the cases, although a reasonable decision is not necessarily a “right” one.
+
+But how, it may be asked, can a judge decide a case on any basis other than belief in what the right decision is? That is the kind of question that a law professor would be apt to ask. It forgets Aristotle’s warning against demanding that an inquiry be conducted with a degree of rigor that the type of inquiry does not permit. The judge does not choose his cases or the sequence in which they are presented to him, or contrive a leisurely schedule on which to decide them, unlike law professors, who choose their topics and need not let go of a paper until satisfied that it is right. Legalists place unrealistic demands on judges, who in our system should often have the uncomfortable feeling of skating on thin ice without the luxury of being able to defer decisions until certitude descends on them.
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+Although I am concerned more with pragmatism’s descriptive adequacy than with its normative appeal, I cannot ignore the question of its normative adequacy, because were it as repulsive a basis for judicial action as its critics claim, it could not plausibly be imputed to our judges. I disagree with the critics, but not because I think it demonstrable that pragmatic adjudication is “right.” Consider that most unpragmatic decision, Clinton v. Jones,25 in which the Supreme Court refused to grant President Clinton an immunity from Paula Jones’s suit for sexual harassment that would last until his term of office ended. The Justices should have realized that forcing the President to submit to a deposition in a case about his sexual escapades would be political dynamite that would explode and interfere with his ability to perform his duties. That of course is what happened. But one cannot say that the Court was “wrong” to find no basis in Article II of the Constitution for immunizing a sitting President from suits that arise from acts that he committed before he took office. A basic principle of republican government is that officials are not above the law; how far to go in compromising that principle in recognition of political reality is a matter of judgment, not of legal analysis in a conventional sense. So Clinton v. Jones was not “wrong.” Yet a Court consisting of politically savvy Justices would have decided the case the other way—and that, I am content to argue, would not have been “wrong” either.
+
+Some critics think that legal pragmatism lacks moral earnestness; that it cannot bestow metaphysical cachet or universality or “objectivity” on precious legal values such as freedom of speech.26 After all, did not Richard Rorty define pragmatism “as a doctrine of the relativity of normative judgments to purposes served”?27 There is nothing to prevent pragmatic judges from dressing their free-speech decisions in a rhetoric of moral realism if doing so will make the decisions more effective. But critics of legal pragmatism will not be satisfied with this response. They will argue that if the reality of judicial decision making is pragmatic, then however the judge chooses to articulate the grounds of his decision the danger will remain that a pragmatic balancing of competing interests cannot safeguard basic values.
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+The issue is brought into focus by recent controversies over limiting civil liberties in response to the threat of terrorism, which the attacks of September 11, 2001, taught us is acute. I have argued that the enhanced danger of terrorism in an era of weapons of mass destruction warrants a curtailment, albeit a modest one, of existing civil liberties.28 But by thus failing to give civil liberties lexical priority over competing interests, such as national security, the pragmatist cannot resist a gradual curtailment of those liberties that has no fixed stopping point. The pragmatist might reply that if we want to entrench civil liberties against any modification based on safety or other concerns, the proper entrenching tool is a constitutional amendment rather than a judicial interpretation of the Bill of Rights. But issues of delay and feasibility to one side, constitutional entrenchment can be overkill, creating an insuperable barrier to rethinking the proper scope of civil liberties in light of an emergency situation unforeseen when the Constitution was amended.
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+A better reply is that judges who want to curtail civil liberties have at hand legalist tools as powerful as those used by civil libertarians. The Constitution is full of contradictions and ambiguities, sources of endless contestation. In the case of national security, against arguments based on the language of the Bill of Rights can be deployed arguments based on the language of Article II, which confers on the President primary authority to conduct the nation’s foreign affairs, command of the armed forces, and the duty to enforce the nation’s laws. Legalism won’t resolve such disputes. Trying to banish pragmatism must fail because it cannot be banished. The only effect of trying to banish it would be to make judges even less candid than they are.
+
+But the objection to pragmatism’s lack of moral earnestness goes deeper than I have acknowledged. It can be understood sympathetically as distress at the thought that judges often make life-and-death decisions (literally so in capital cases) without warranted confidence that what they are doing is “right” in a strong sense of the word. Pragmatists seem to have a casual attitude toward truth, especially moral truth, as when Holmes said that what is true is simply what he could not help believing or that the test of truth is how well it “sells” in the marketplace of ideas. Jerome Frank was wrong to think that judges’ craving for certitude is infantile (see chapter 4); it is the consequence of the natural anxiety that decent people feel when they find themselves exercising power over other people and therefore want very much to think that their exercise of that power is just. But critics of pragmatism lack the tools to allay that anxiety. All that they can offer judges is a rhetoric of certitude. (Rhetoric in a different sense—the Aristotelian sense, noted in chapter 3, of the methodology for resolving issues that cannot be resolved by exact inquiry—is congenial to, perhaps even fundamental to, Holmes’s pragmatism.29)
+
+Some critics argue that legal pragmatism breeds cynicism about law that in turn induces intellectual laziness in students, law professors, lawyers, and, most ominously, judges. The legal pragmatist is said to be unwilling to invest significant time and effort in learning the rules of law and the methods of legal reasoning because he regards these things as obstacles to getting to the point, the point being to weigh consequences. That is incorrect. The law student must learn to pay careful attention to the conventional materials, specialized vocabulary, and other resources and techniques developed by the legal profession over millennia. He must learn these things en route to transcending them. But transcend them (or at least begin the process of transcending them) he must. He must be disabused of the notion that “the law” is a set of propositions written down in a book and legal training consists simply of learning how to find the correct place in the book. That is what laypeople think and some judges pretend to think. In our system the law as it is enforced in courts is created by judges, using legal propositions as raw materials. Lawyers must learn how to assist judges in that creative activity. That requires more than beating judges about the head with snatches of legalese (such as “clear and affirmative evidence”) taken from statutes and judicial opinions.
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+Legal pragmatism is said by its critics to allow, invite, or even command judges to decide cases however they want. By loosening the constraints of text and doctrine, the criticism continues, pragmatism turns judges into loose legislative cannons and expands the area of judicial indeterminacy to all cases. Not so. Judges are less likely to be drunk with power if they realize they are exercising discretion than if they think they are just a transmission belt for decisions made elsewhere and so bear no responsibility for any ugly consequences of those decisions. Legalists, sometimes hypocritically, sometimes unconsciously, smuggle their political preferences into their decisions but seek to deflect blame for any resulting cruelties or absurdities by pleading that the law made them do it.
+
+Legislation reflects the preferences of legislators, and think how those preferences are formed (even setting aside pressure from constituents). They are formed by each legislator’s values, temperament, life experiences, and conception of the scope and limits of the legislative function. And likewise in the case of the judge as legislator. But stated as a criticism, this ignores not only the possibility of weighing consequences in a dispassionate and even predictable manner in areas of consensus, but also the material, psychological, and institutional constraints on pragmatic as on other judges (more precisely, on judges when they are being pragmatic). Judges are subject to forcible removal from office for dereliction of duty; their decisions can be nullified by legislative or constitutional amendment; the process of selecting judges tends to exclude those who are the most power hungry, the most “political,” the farthest out of the mainstream; and the system of compensation and the rules concerning conflicts of interest subject judges to “flat” incentives—that is, incentives not tied to the outcome of the particular cases they are called upon to decide—so that a powerful potential source of bias is removed. If the judge is a legislator, at least he is a disinterested one.
+
+The good pragmatist judge, we know, is not a shortsighted pragmatist. He is not a philosophical pragmatist. But he is a constrained pragmatist. We know from previous chapters that judges in our system operate under both internal and external constraints. That is as true of pragmatic judges as it is of legalist judges. There are many consequences of a decision that a pragmatic judge cannot properly take into account. The issue is sharply focused by Bush v. Gore.30 Suppose a Justice thought that Gore had the better of the legal case, but that Bush would be a better President. The Justice might conclude that all things considered, a decision in favor of Bush would have better consequences than a decision in favor of Gore. Yet it would be improper for the Justice to consider the relative merits of Bush and Gore as presidential aspirants. It would violate the rule, basic to corrective justice, that cases must be decided “without respect to persons.” The pragmatic judge must play by the rules of the judicial game, just like other judges. The rules permit the consideration of certain types of consequence but forbid the consideration of other types. They limit the judge to being, by analogy to rule utilitarianism, a “rule pragmatist.”31
+
+The difference between a constrained and an unconstrained pragmatist is well illustrated by Jerome Frank in his twin roles as bomb-throwing legal realist and Second Circuit judge. He did not abandon legal realism on the bench, but he curbed it; his judicial opinions are well within the mainstream.32
+
+Judge Michael McConnell, the originalist whom we met in chapter 7, claims that “the real points of division [between legalists and pragmatists] relate to how strictly or loosely judges read the constraints [of legalism], and whether in the remaining gray areas they defer to democratic judgment or give play to their own ideological commitments.”33 He is right that “how strictly or loosely judges read the constraints” of legalism is a difference between the legalist and the pragmatist; legalists, for example, are more likely to remain on the semantic surface of a statute than to try to figure out its purpose. But whether “in the remaining gray areas [judges] defer to democratic judgment or give play to their own ideological commitments” is not a real difference. The originalist’s tiebreaker is not democracy (see chapter 11). Who except the self-deluded believe that “ideological commitments” play a significantly smaller role in the decisions of legalists, such as the four most conservative Supreme Court Justices, than in those of quasi-pragmatists, such as Justice Breyer?34
+
+Even if the objections to legal pragmatism are stronger than I think they are, there is no alternative in the United States of the twenty-first century. America’s judicially enforceable Constitution; its common law heritage; its undisciplined legislatures (a product in part of the weakness of political parties in the United States and in part of bicameralism and the presidential veto, which together make it extremely difficult to enact legislation unless it is left vague); the sheer complexity of the American legal system (the federal Constitution layered over federal statutes and the whole layered over the legal systems of the 50 different states)—all these things compound with the heterogeneity of the judges, and the related fact that judging in the United States is not a career but a position to which middle-aged lawyers are appointed after a career as a practicing lawyer, professor, or prosecutor, to create an immense irreducible domain of discretionary lawmaking. And many judges owe their appointments to political connections, to being at least on the outskirts of politics. Legalism is not a straitjacket that can be put on these worldly judges, and anyway has no resources to guide the making of new law as distinct from the ascertainment of the old, for it denies that lawmaking is a legitimate task of judges.
+
+Lateral entry deserves emphasis not only as a factor contributing to the heterogeneity of the judiciary but also as a reflection of the fluidity of American professional and intellectual life, which fosters legal pragmatism—as it does philosophical pragmatism—and helps stamp both as distinctively American movements. The legal profession in the United States is not compartmentalized; lawyers move freely among private practice, government service, law teaching, and judging. Nor is the profession sealed off from the rest of American intellectual life. It is permeable to developments in other departments of social thought, such as economics. John Dewey and other pragmatic philosophers were able to take as the model for all inquiry the methods of the natural sciences because American thought is not tightly bulkheaded. The permeability of professional cultures to outside influences is an antidote to the development of a parochial judicial culture in which law is an autonomous system of thought, isolated from the practice of law, the social sciences, and the commercial and political life of the nation.
+
+The heterogeneity of the judiciary encourages a proliferation of varied insights and retards group polarization, and at the same time anchors law more firmly in durable public opinion. This is both cause for and justification of the elaborate screening of judicial candidates for ideological predisposition and ethnic and other group identity, as well as for professional competence. But diversity comes at a price. The greater the judiciary’s diversity, the more disagreement, dissent, and distinguishing of cases (and hence the less adherence to precedent and therefore the less legal certainty), and the less uniformity across appellate panels. These costs have to be traded off against the epistemic value of diversity or, equivalently, the costs of confining deliberation to the like-minded.35
+
+But all this said, are American judges really predestined to be pragmatists? Can we trust Karl Llewellyn (see chapter 8), or was he just finding what he was looking for? The rhetoric of judicial opinions is predominantly legalistic; and the attitudinal school’s discovery of a wide political streak in American judging does not make the case, because political judging could be the work of an ideologue rather than a pragmatist.
+
+We can gain some insights into the issue from the critical literature on judges.36 From it we learn for example that Brandeis’s judicial decisions “were not determined by a uniquely ‘juristic’ set of values, but by generalized articles of social, economic, and political faith that derived as much from the gleanings of literature, history, and social sciences as they did from the study of law,”37 and that political judging characterized the Second Circuit even under the revered leadership of Learned Hand.38 From judicial biographies and the expanding list of book-length exposés of the Supreme Court we can learn (if we are so naïve as not to realize it already) that judges at all levels are all too human.
+
+But a neglected literature that I particularly wish to emphasize is writing by judges on judging.39 In a previous chapter I quoted Learned Hand on judging and I have referred to two famous works by Holmes in this one; there is additional evidence of Holmes’s judicial pragmatism in other writings of his, including letters and judicial opinions.40 There are Cardozo’s writings about judging, most famously his book The Nature of the Judicial Process (1921), “the fullest statement of a jurisprudence of pragmatism that we possess.”41 There is Judge Hutcheson’s article on decision by hunch, from which I took the epigraph in the introduction, surprisingly echoed by Supreme Court Justice Anthony Kennedy in a recent interview:
+
+
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+You know, all of us have an instinctive judgment that we make. You meet a person, you say, “I trust this person. I don’t trust this person. I find her interesting. I don’t find him interesting.” Whatever. You make these quick judgments. That’s the way you get through life. And judges do the same thing. And I suppose there’s nothing wrong with that if it’s just a beginning point. But after you make a judgment, you then must formulate the reason for your judgment into a verbal phrase, into a verbal formula. And then you have to see if that makes sense, if it’s logical, if it’s fair, if it accords with the law, if it accords with the Constitution, if it accords with your own sense of ethics and morality. And if at any point along this process you think you’re wrong, you have to go back and do it all over again. And that’s, I think, not unique to the law, in that any prudent person behaves that way . . . I think that maybe the qualities for achievement in my field are not different—much different—than any others. Number one: Knowing yourself, and being honest about your own failings and your own weakness. Number two: To have an understanding that you have the opportunity to shape the destiny of this country. The framers wanted you to shape the destiny of the country. They didn’t want to frame it for you.42
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+
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+There is Jerome Frank’s book, Courts on Trial: Myth and Reality in American Justice (1949), written after he became a federal court of appeals judge but repeating many of the realist heresies of his earlier and better-known book Law and the Modern Mind (1930). Frank’s distinguished rival on the Second Circuit, Charles Clark, articulated a pragmatic philosophy of judging, remarking that “only by recognizing the lonely responsibility of the judge as a legislator, and the inevitable subjective nature of his perception, can we hope to find ways and means of harnessing that subjectivity to the service of society, present and future.”43 Similar sentiments have been expressed by a host of other distinguished judges, including Walter Schaefer,44 Henry Friendly,45 Albert Tate,46 Roger Traynor,47 and Frank Coffin.48 Justice, later Chief Justice, Harlan Fiske Stone said that “within the limits lying between the command of statutes on the one hand and the restraints of precedents and doctrines, by common consent regarded as binding, on the other, the judge has liberty of choice of the rule which he applies, and his choice will rightly depend upon the relative weights of the social and economic advantages which will finally turn the scales of judgment in favor of one rule rather than another. Within this area he performs essentially the function of the legislator, and in a real sense makes law.”49
+
+I wish our current Justices were as candid as Stone, or as Judge Patricia Wald when she said that “our colleagues are our colleagues as a result of politics. The kind of controlling precedent the Supreme Court hands down to lower courts reflects the makeup of that court and has been determined, in large part, by the politics of the nomination and confirmation process . . . The values by which judges make choices in areas of discretion will more often than not be in sync with that section of the political spectrum they inhabited in their former lives.”50 Professor David Klein has gathered additional references along these lines,51 and J. Woodford Howard offers the following judicious summary based on extensive interviews with federal court of appeals judges: “The short of it is that federal intermediate courts tended to attract political lawyers who by vocation and training fused elements of political and legal culture in appellate adjudication.”52
+
+Judge Friendly’s former law clerk and good friend Michael Boudin, himself a distinguished federal court of appeals judge, has listed the elements of Friendly’s distinction. He mentions the “experience of a practicing lawyer who had spent three decades addressing real-world problems” and who “rivaled Justice Robert Jackson [a great pragmatic judge] in giving readers the sense that his decisions were grounded in reality.”53 He quotes Friendly’s advice that “on the whole it may be better that the [Supreme] Court should plot a few reference points, even on what may be largely an intuitive basis, which can be erased if they prove unwise, before it attempts to project a curve to which all future determinations must conform.”54 He remarks on Friendly’s view that “a judge’s first take is often an intuitive response” to the “diverse pressures” that a case exerts on a judge—pressures “to conform to precedent, to do justice, to achieve a socially useful result.” Boudin sums up the influences that shaped Friendly’s judging as “his training as a historian and respect for precedent, a dose of legal realism, a pragmatic interest in outcomes, a respect for legal process, an insistence on relative competence, a sense of what is practical, and a concern with judicial overreaching.”55
+
+This is the portrait of a pragmatic judge sensitive to the institutional as well as the substantive consequences of judicial decision making. And, speaking of Justice Jackson, as Boudin did, recall from chapter 4 Frederick Schauer’s redescription of Jerome Frank’s brand of legal realism: “an attempt to lessen the distance, descriptively and prescriptively, between how a judge as a human being and that same human being clothed in judicial robes would resolve a controversy.” That attempt gets close to the heart of legal pragmatism, as in the following description of Justice Jackson’s opinion-writing style: “Jackson never seemed to be searching for the proper ‘judicial’ stance or tone in his opinions. Instead, he appeared capable of expanding the stylistic range of opinion writing to accommodate his human reactions . . . The distance between judges and mortals was suddenly shortened.”56
+
+Llewellyn collected many choice examples of judicial self-reflection from different eras. I quote a few: “No precedent is of such force as resoun [right sense].”57 “Every lawyer knows that a prior case may, at the will of the court, ‘stand’ either for the narrowest point to which its holding may be reduced, or for the widest formulation that its ratio decidendi [reason for deciding] will allow.”58 “What is new in juristic thought today is chiefly the candor of its processes. Much that was once unavowed and kept beneath the surface is now avowed and open. From time immemorial lawyers have felt the impulse to pare down the old rules when in conflict with the present needs. The difference is that even when they yielded to the impulse, it was their habit in greater measure than today to disguise what they were doing, to disguise the innovation even from themselves, and to announce in all sincerity that it was all as it had been before.”59 “In talking to the [state] Chief Justices I [Llewellyn] found only about a third (including, and this gave me comfort, all but one out of the youngest third) who could recognize that I was telling truth about what they were doing, daily. There was even one who had been made to see that he ‘had been doing, all along, exactly what he didn’t want to’; but who guessed, wryly, that he would go on doing it.”60 And here is a quotation for the legalists: “A strong opinion [is] one in which by the employment of pure legal reasoning one arrived inescapably at a conclusion which no layman could possibly have foreseen.”61
+
+One can even reach back to Justice Joseph Story of the early-nineteenth-century Supreme Court, who, admonishing the lawyer to “accomplish himself for his duties by familiarity with every study,” said that the lawyer “will thus be taught to distrust theory, and cling to practical good; to rely more upon experience, than reasoning; more upon institutions, than laws; more upon checks to vice, than upon motives to virtue. He will become . . . more wise, more candid, more forgiving, more disinterested.”62 One can reach across the seas to other Anglo-American judiciaries and find similar sentiments expressed by their judges.63
+
+Of particular note is the pragmatist strain in the age of classic American legal formalism, which William Wiecek dates from 1886 to 1937.64 What I am calling legalism was indeed the official, the establishment, conception of judicial behavior. Yet Brian Tamanaha has compiled a wonderful assortment of contemporaneous statements indicative of a strong undertone of skepticism.65 We read that “it is useless for judges to quote a score of cases from the digest to sustain almost every sentence, when every one knows that another score might be collected to support the opposite ruling . . . He writes, it may be, a beautiful essay upon the law of the case, but the real grounds of decision lie concealed under the statement of facts with which it is prefaced.”66 A judge is quoted as saying that “what is called legal sense is often the rankest nonsense,”67 and the president of the American Bar Association as saying that “our courts can generally find precedents for almost any proposition.”68
+
+The first of these quotations is from an article published in 1881, the same year that Holmes published The Common Law. The novelty of Holmes’s criticism of legalism was that he thought it inevitable, and thus not particularly reprehensible, that judges should be occasional legislators rather than full-time rule appliers, though he also thought that if they were more self-conscious about what they were doing they would be more restrained.
+
+The distinction of most of the judges whom I have quoted or mentioned is notable, but more notable still is that they should confess pragmatism despite the allure of being able to pose as a discerner rather than a creator of law, for that is the less controversial position and also flatters the laity’s ignorant expectation of what a judge is supposed to do. Judges’ writing on judging, as well as what they say in interviews, especially when speaking off the record,69 is striking for the infrequency of legalist manifestos. There are some,70 of course, but many of them have an air of embattlement, of swimming against the tide, and sometimes of apology and qualification, as in Justice Scalia’s revealingly entitled article “Originalism: The Lesser Evil.”71 He confesses himself a “fainthearted” originalist and assures the reader that he would not countenance flogging even though on an originalist construal it is not a cruel and unusual punishment.72 He made a further confession of faintheartedness in another article: “We will have totality of the circumstances tests and balancing modes of analysis with us forever—and for my sins, I will probably write some of the opinions that use them. All I urge is that those modes of analysis be avoided where possible.”73
+
+Maybe distinguished judges are readier than others to confess pragmatism (even if it is only occasional pragmatism, as in the case of Justice Scalia) because their distinction insulates them from the criticism that a lesser heretic would invite, or because the distinguished judge is more likely to be an occasional legislator than his less distinguished colleagues and so more likely to realize that judging at its most demanding is a pragmatic activity.
+
+A final question is how well legal pragmatism, which along with constitutional law is the distinctive American contribution to jurisprudence (though with English roots—the English philosophical tradition is empiricist; the common law, which we got from England, is pragmatic; and remember Blackstone on statutory interpretation), travels. Perhaps not well, at least outside English-origin jurisdictions.74 Continental European judges are more legalistic than American or English ones. The European (civil law) legal systems, and the European systems of government more broadly, have been constructed along lines that greatly limit judicial discretion and hence departures from legalism. The judicial career attracts the type of person who is comfortable in a bureaucracy, and it breeds in him once there habits of obedience to directives and other authoritative texts. Bureaucratic administration is government by written rules. Continental Europe does not have the common law and until recently did not have judicial review of the constitutionality of statutes, and so judges’ legislative scope was severely truncated.
+
+European governments tend moreover to be highly centralized. Power is concentrated in parliaments that are functionally unicameral and enact legal codes that are clearer than most of our statutes. There are fewer gaps, overlaps, inconsistencies, and ambiguities. Most European courts are specialized (labor courts, criminal courts, etc.), and specialists tend to share the premises of analysis and decision, enabling them to derive conclusions by logical processes. Specialist courts also do not have to worry about adapting the rules and principles of one area of law to another. American judges at this moment are wrestling with adapting our normal law of criminal procedure to the special challenges presented by the struggle against international terrorism. They are rebalancing public safety and civil liberties in light of the perceived increase in danger. A European nation can if it wants deal with the problem by establishing a special court for terrorist cases. (We could do that too, but it would be a departure from the American tradition of generalist judges.) The judges of such a court could formulate doctrine for their specialized jurisdiction without having to rethink broader principles.
+
+Because the United States does not have the institutions that make a career judiciary feasible, legalism is not available to us as an overall judicial strategy. Is this a bad thing? That is a huge question. We saw in chapter 5 that our courts protect property rights, a cornerstone of freedom and prosperity, as well as European judiciaries do. Their judges are more disciplined than ours, more closely supervised, but being career judges less comfortable with commercial and other economic issues than our judges are. Specialization may be only a partial cure. The specialized judge who focuses on commercial cases presumably learns a great deal about the subject area in his judicial career, but this learning may not be a perfect substitute for direct participation in the commercial life of the nation as a practicing lawyer.75 On the other hand, although good statistics are lacking, there is no doubt that the United States spends more money per capita on its legal system than the countries with which we like to compare ourselves. Unfortunately, there are no data that would permit a determination of whether the benefits that our system generates exceed its heavy costs. All that can be said is that if judges are too much alike in background, politics, values, and other personal characteristics that influence judicial decision making in the gaping open area created by our constitutional structure and political culture, pragmatic judgments will rest on a thin base of knowledge and insight, while if judges are too different from one another, their decisions will fail to create a stable, intelligible pattern and people will be able only to guess what their legal obligations are. One can hope that the tough screening of federal judicial candidates is truncating the distribution of personality and opinion enough to ensure the necessary minimum of homogeneity but not so much as to eliminate a nourishing variety of opinion and experience.
+
+
+1. This is an old theme for me; see my books The Problems of Jurisprudence (1990), especially ch. 15; Overcoming Law (1995), especially ch. 19; The Problematics of Moral and Legal Theory, ch. 4 (1999); An Affair of State: The Investigation, Impeachment, and Trial of President Clinton 217–230 (1999); Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 169–187 (2001); Law, Pragmatism, and Democracy (2003).
+
+2. Brian Z. Tamanaha, “How an Instrumental View of Law Corrodes the Rule of Law,” 56 DePaul Law Review 469, 490 (2007) (“It is fair to surmise that a greater proportion of contemporary judges are judicial pragmatists . . . Judicial decisions today routinely cite policy considerations, consider the purposes behind the law, and pay attention to law’s social consequences”). For interesting recent acknowledgments of the prevalence of pragmatic judging in the Supreme Court, see Nelson Lund, “The Rehnquist Court’s Pragmatic Approach to Civil Rights,” 99 Northwestern University Law Review 249 (2004); Kenneth W. Starr, “The Court of Pragmatism and Internationalization: A Response to Professors Chemerinsky and Amann,” 94 Georgetown Law Journal 1565 (2006). I discuss the Court’s (intermittent) pragmatism in the next chapter. There is a growing literature, illustrated by John R. Tennert, “Administrative Law as Pragmatism,” 29 International Journal of Public Administration 1339 (2006), on the pragmatic vein in various fields of law, but it would carry me too far afield to discuss that literature in this book.
+
+3. Jack Knight and James Johnson, “The Priority of Democracy: A Pragmatist Approach to Political-Economic Institutions and the Burden of Justification,” 101 American Political Science Review 47, 49 (2007).
+
+4. Oliver Wendell Holmes, “The Path of the Law,” 10 Harvard Law Review 457 (1897).
+
+5. John Dewey, “Logical Method and Law,” 10 Cornell Law Quarterly 17 (1924).
+
+6. Letter from Oliver Wendell Holmes to Lewis Einstein, Nov. 24, 1912, in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. 66 (Richard A. Posner ed. 1992).
+
+7. “I recognize without hesitation that judges do and must legislate.” Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (dissenting opinion).
+
+8. Richard A. Posner, The Economics of Justice 25–27 (1981).
+
+9. Holmes, note 4 above, at 466; Oliver Wendell Holmes, Jr., The Common Law 1 (1881): “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
+
+10. Jack Knight and James Johnson, “Political Consequences of Pragmatism,” 24 Political Theory 68, 78 (1996) (emphasis added). Whether consensus justifies particular common law rules, as doubted by Knight and Johnson in their criticisms of my defense of legal pragmatism, is not the concern of this chapter. The concern is whether American judges are pragmatists, not whether they should be, except insofar as the normative adequacy of such a judicial philosophy might bear on the plausibility of thinking that American judges have ever actually practiced it.
+
+11. See Bernard Williams, “Modernity and the Substance of Ethical Life,” in Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument 40, 48–49 (Geoffrey Hawthorne ed. 2005).
+
+12. See Richard A. Posner, Economic Analysis of Law (7th ed. 2007).
+
+13. See Elisabeth Krecké, “Economic Analysis and Legal Pragmatism,” 23 International Review of Law and Economics 421 (2004).
+
+14. See, for example, Stephen A. Smith, Contract Theory 132–136 (2004).
+
+15. See Jody S. Kraus, “Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis,” 93 Virginia Law Review 287 (2007); Nathan Oman, “Unity and Pluralism in Contract Law,” 103 Michigan Law Review 1483, 1492–1498 (2005).
+
+16. Ferenc L. Toth, “Climate Policy in Light of Climate Science: The ICLIPS Project,” 56 Climatic Change 7 (2003). See also Thomas Bruckner et al., “Methodological Aspects of the Tolerable Windows Approach,” 56 Climatic Change 73 (2003).
+
+17. 480 F.3d 505 (7th Cir. 2007).
+
+18. Oliver Wendell Holmes, “Ideals and Doubts,” in Holmes, Collected Legal Papers 303, 306 (1920 [1915]).
+
+19. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945).
+
+20. This is less true in criminal than in civil cases because in most criminal cases the defendant is the appellant and is not paying for his lawyer, so he is under no economic pressure to forgo a long-shot appeal.
+
+21. I amplify this concept of legal historicism in chapter 4 of my book Frontiers of Legal Theory (2001).
+
+22. Coffey v. Northeast Regional Commuter Railroad Corp., 479 F.3d 472, 478 (7th Cir. 2007), remarks “the curious and deplorable aversion of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a verbal description. We have noted this aversion in previous cases, United States v. Boyd, 475 F.3d 875, 878 (7th Cir. 2007); Miller v. Illinois Central R.R., 474 F.3d 951, 954 (7th Cir. 2007); United States v. Barnes, 188 F.3d 893, 895 (7th Cir. 1999)—once remarking [in the Barnes case] that some lawyers think a word is worth a thousand pictures.”
+
+23. That is, “constructed”: “constructive possession” means that someone who is not in possession of a thing is treated by the law as if he were.
+
+24. Bryan Garner, with Jeff Newman and Tiger Jackson, The Redbook: A Manual on Legal Style, § 11 (2d ed. 2006).
+
+25. 520 U.S. 681 (1997).
+
+26. See, for example, R. George Wright, “Pragmatism and Freedom of Speech,” 80 North Dakota Law Review 103 (2004).
+
+27. Richard Rorty, “Dewey between Hegel and Darwin,” in Rorty and Pragmatism: The Philosopher Responds to His Critics 1, 15 (Herman J. Saatkamp, Jr., ed. 1995).
+
+28. Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006).
+
+29. Robert Danisch, Pragmatism, Democracy, and the Necessity of Rhetoric, ch. 4 (2007).
+
+30. 531 U.S. 98 (2000).
+
+31. See Melissa Armstrong, “Rule Pragmatism: Theory and Application to Qualified Immunity Analysis,” 38 Columbia Journal of Law and Social Problems 107 (2004); Posner, The Problematics of Moral and Legal Theory, note 1 above, at 241.
+
+32. See Robert Jerome Glennon, The Iconoclast as Reformer: Jerome Frank’s Impact on American Law, ch. 5 (1985).
+
+33. Michael W. McConnell, “Active Liberty: A Progressive Alternative to Textualism and Originalism?” 119 Harvard Law Review 2387, 2415 (2006), reviewing Justice Breyer’s book Active Liberty, which I discuss in chapter 11.
+
+34. Rorie Spill Solberg and Stefanie A. Lindquist, in “Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges before the Rehnquist Court, 1986–2000,” 3 Journal of Empirical Legal Studies 237 (2006), find a slightly higher degree of self-restraint on the part of conservative Justices, but conclude that, in general, “where liberal statutes are challenged, regardless of whether they emerge at the state or federal level, conservatives tend to be more likely to strike down those statutes. The opposite is true for conservative statutes.” Id. at 259–260.
+
+35. Harry T. Edwards, “The Effects of Collegiality on Judicial Decision Making,” 151 University of Pennsylvania Law Review 1639, 1667 (2003). Cass R. Sunstein et al., Are Judges Political? An Empirical Analysis of the Federal Judiciary (2006), emphasizes the benefits of diversity in insight and whistle-blowing, and the costs of uniformity in group polarization and ideological amplification—products of overconfidence from being among like-minded people and thus never challenged, never forced to reflect critically on one’s beliefs.
+
+36. Exemplified by G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (expanded ed. 1988).
+
+37. Stephen W. Baskerville, Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis 274 (1994).
+
+38. Marvin Schick, Learned Hand’s Court (1970).
+
+39. For a comprehensive bibliography of such writings, see Judges on Judging: Views from the Bench 305–323 (David M. O’Brien ed., 2d ed. 2004). And for a massive anthology of writings by judges as well as academics about judging, see Ruggero J. Aldisert, The Judicial Process: Readings, Materials and Cases (2d ed. 1996). There is also the occasional testimony of former law clerks. See, for example, Stephen L. Wasby, “‘Why Clerk? What Did I Get out of It?’” 56 Journal of Legal Education 411, 426 (2006), remarking that one “litigator’s strong belief that ‘it is facts more than law which decides cases’ really started during his clerkship year, ‘when I saw that application of law to facts was much more complex, subtle, and fact-oriented than I had imagined.’”
+
+40. See The Essential Holmes, note 6 above, and the references to Holmes in the books cited in note 1 above.
+
+41. Richard A. Posner, Cardozo: A Study in Reputation 28 (1990).
+
+42. “Anthony Kennedy Interview,” Academy of Achievement: A Museum of Living History, Oct. 22, 2006, www.achievement.org/autodoc/page/ken0int-3,int-5 (visited May 16, 2007) (emphasis added).
+
+43. Charles E. Clark and David M. Trubek, “The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition,” 71 Yale Law Journal 255, 275–276 (1961). See also Procedure: The Handmaid of Justice: Essays of Judge Charles E. Clark (Charles A. Wright and Harry M. Reasoner eds. 1965). Clark and Trubek, above, at 267, perceptively remark that Karl Llewellyn exaggerated the degree to which judges can attain certainty in difficult cases by the use of “realist” methods. We shall encounter similar exaggerations in chapter 12 in discussing the realist jurisprudence of David Beatty.
+
+44. Walter V. Schaefer, “Precedent and Policy,” 34 University of Chicago Law Review 3 (1966).
+
+45. Henry J. Friendly, Benchmarks (1967).
+
+46. Albert Tate, Jr., “The Law-Making Function of the Judge,” 28 Louisiana Law Review 211 (1968); Tate, “Forum Juridicum: The Judge as a Person,” 19 Louisiana Law Review 438 (1959).
+
+47. Roger J. Traynor, The Traynor Reader: A Collection of Essays by the Honorable Roger J. Traynor (1987).
+
+48. See Frank M. Coffin, The Ways of a Judge: Reflections from the Federal Appellate Bench (1980), and, even better, Coffin, On Appeal: Courts, Lawyering, and Judging (1994), especially chs. 13 and 14.
+
+49. Harlan F. Stone, “The Common Law in the United States,” 50 Harvard Law Review 4, 20 (1936).
+
+50. Patricia M. Wald, “Some Real-Life Observations about Judging,” 26 Indiana Law Review 173, 180 (1992). Judge Wald unsurprisingly describes herself as a pragmatist. Id. at 181.
+
+51. David E. Klein, Making Law in the United States Court of Appeals 15–16 (2002). Klein’s excellent book also contains numerous interviews with federal circuit judges, speaking anonymously and presumably therefore with more candor than usual. Another fine book, employing the same methodology, is J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits (1981).
+
+52. Howard, note 51 above, at 188.
+
+53. Michael Boudin, “Judge Henry Friendly and the Mirror of Constitutional Law” 11 (forthcoming in New York University Law Review).
+
+54. Id. at 17, quoting Henry J. Friendly, The Dartmouth College Case and the Public-Private Penumbra 31 (1969).
+
+55. Boudin, note 53 above, at 23.
+
+56. White, note 36 above, at 232. Chapter 11 of White’s book is a superb discussion of Jackson.
+
+57. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 52 n. 46 (1960).
+
+58. Id. at 117.
+
+59. Id. at 266–267, quoting Cardozo, “Jurisprudence,” in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tyco Brahe 7, 37 (Margaret E. Hall ed. 1947).
+
+60. Llewellyn, note 57 above, at 392.
+
+61. Id. at 39 n. 31.
+
+62. Joseph Story, Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University 34–35 (1829).
+
+63. See, for example, E. W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005); Tom Bingham, The Business of Judging: Selected Essays and Speeches, ch. 2 (2000); David Robertson, Judicial Discretion in the House of Lords (1998); John Bell, Policy Arguments in Judicial Decisions (1983).
+
+64. William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998).
+
+65. The quotations that follow are from Brian Z. Tamanaha, “The Realism of the ‘Formalist’ Age” (St. John’s University School of Law, Aug. 2007).
+
+66. W. G. Hammond, “American Law Schools, Past, and Future,” 7 Southern Law Review 400, 412–413 (1881). Hammond was the dean of the St. Louis Law School.
+
+67. Seymour D. Thompson, “More Justice and Less Technicality,” 23 American Law Review 22, 48 (1889).
+
+68. U. M. Rose, “American Bar Association,” 64 Albany Law Journal 333, 336 (1902).
+
+69. See note 51 above.
+
+70. See, for example, J. Harvie Wilkinson III, “The Role of Reason in the Rule of Law,” 56 University of Chicago Law Review 779 (1989); Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review 1175 (1989); Judges on Judging, note 39 above, chs. 13, 15, 16, 18, 20, 22. I have mentioned Judge McConnell; I discuss his views further, and those of other judges as well, in subsequent chapters.
+
+71. Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law School 849 (1989).
+
+72. Id. at 861, 864—for which he was criticized by Judge Easterbrook, perhaps the least fainthearted judicial defender of legalism. Frank H. Easterbrook, “Abstraction and Authority,” 59 University of Chicago Law Review 349, 378 n. 92 (1992).
+
+73. Scalia, note 70 above, at 1187 (emphasis added).
+
+74. Robertson, note 63 above, at 401, argues powerfully that “the ideology” of England’s highest court “is one of pragmatism, indeed the sort of pragmatism that is unable to conceive that it is an ideology.”
+
+75. On the pros and cons of judicial specialization generally, see the thorough discussion in Edward K. Cheng, “The Myth of the Generalist Judge: An Empirical Study of Opinion Specialization in the Federal Courts of Appeals” (Brooklyn Law School, May 10, 2007).
+
+
+
+
+
+III
+
+
+
+
+
+Justices
+
+
+
+
+
+10
+
+
+
+
+
+The Supreme Court Is a Political Court
+
+
+
+
+
+I have suggested that American judges are predestined to be pragmatists. But a more illuminating description of the Justices of the U.S. Supreme Court, particularly when they are deciding issues of constitutional law, is that they are political judges, as I shall argue with reference primarily to cases decided in the Court’s 2004 term, the last term before the Court changed direction as a result of the replacement of Rehnquist and O’Connor by Roberts and Alito. But political judges are pragmatists if what is driving them is, as I believe it mainly is, the political consequences of their decisions.
+
+I begin with a neglected factor in discussions of the politicization of the Court—the extraordinary growth in the ratio of lower-court to Supreme Court decisions. The Court can no longer control the lower courts by means of narrow, case-by-case determinations—the patient, incremental method of the common law. It must perforce act legislatively. In 2003 the federal courts of appeals decided 56,396 cases, compared to only 3,753 in 1960. State courts of last resort decided more than 25,000 cases in 2002,1 an unknown but probably substantial percentage of which presented a federal question, if one may judge from the fact that 13 percent of state supreme court decisions in the late 1960s—when constitutional law was not yet ubiquitous—concerned the federal constitutional rights of criminal defendants.2 State intermediate appellate courts decided more than 130,000 cases in 2003. What percentage were final decisions that raised issues of federal law and therefore were reviewable by the U.S. Supreme Court is unknown. So one cannot say how many cases reviewable by the Supreme Court the state courts decided in either period and therefore compute the percentages of those cases in which the Court granted certiorari. But one can compare the percentage of federal court cases in which the Court granted certiorari in 2004—0.11 percent (64 ÷ 56,396)—with the corresponding percentage in 1960—1.6 percent (60 ÷ 3,753). The comparison indicates that the Court reviewed, in relative terms, almost 15 times as many federal court cases in 1960 as in 2004.
+
+Granted, many of the cases terminated in the federal courts of appeals are not even remotely plausible candidates for further review, having been consolidated, abandoned, or dismissed because of obvious jurisdictional defects. If attention is confined to cases that the Administrative Office of the U.S. Courts classifies as terminated “on the merits” or (the corresponding, though not identical, classification in 1959) “after hearing or submission,” the figures of 56,396 and 3,753 in the preceding paragraph shrink to 27,009 and 2,705, and this adjustment changes the percentage of federal court of appeals decisions reviewed by the Supreme Court from 0.13 percent and 1.7 percent in 2004 and 1960, respectively, to 0.27 percent and 2.4 percent. Nevertheless the difference remains striking: the Court in 1960 decided, in relative terms, almost nine times as many federal cases as it decided in 2004.
+
+The Court has long emphasized that it is not in the business of correcting the errors, as such, of the lower courts; cases that come to it have already had at least one tier of appellate review. The statistics make plain that the Court is indeed out of the error-correction business, and this is a clue to how far it has departed from the conventional model of appellate adjudication and should prepare us to accept the Court’s basically legislative character. If the Court tried to make law the common law way—that is, in tiny incremental steps, which is a form of legislating but one remote from how legislatures proceed—it would have little control over the development of the law; it would be deciding too few decisions to provide significant guidance to the lower courts. So the Court tries to use the few cases that it agrees to hear as occasions for laying down rules or standards that will control a large number of future cases.3
+
+The declining ratio of Supreme Court to lower-court decisions may have another effect—that of feeding the widespread but inaccurate perception that a majority of the cases that the Court decides nowadays are constitutional cases. The percentage of Supreme Court cases that are primarily constitutional has not exceeded 50 percent in recent years. In fact the Court is deciding a smaller percentage of constitutional cases today than it did in the late 1960s and early 1970s.4 And because it is hearing fewer cases overall, the number of constitutional cases that it is hearing has fallen markedly. But those cases draw much more public attention than the more numerous statutory ones do. They are not only more consequential; they are more controversial even within the Court. In the 2004 term, 80 percent of the Court’s primarily constitutional decisions were by split vote, compared to 63 percent of its other decisions.5 A split decision is more likely to attract attention than a unanimous one, in part by generating more—and more contentious—opinions per case. Thus, although only 38 percent of all the Court’s cases in 2004 were primarily constitutional, 44 percent of the Justices’ opinions (including concurrences and dissents) were issued in such cases. And the average constitutional decision is more controversial than formerly because of the nation’s increased political polarization with respect to just the sorts of issue most likely to get the Court’s attention these days, such as abortion, affirmative action, national security, homosexual rights, capital punishment, and government recognition of religion. Why the Court is drawn mothlike to these flames is something of a mystery. Political ineptitude may be a factor—only one Justice serving in the 2004 term, O’Connor, had had significant political experience before becoming a Justice. But probably more important is that these issues tend to divide the lower courts, generating conflicts for the Supreme Court to resolve.
+
+As the number of cases the Court decides diminishes relative to the total number of lower-court cases that raise federal questions, it begins to seem as if the Court is abandoning large swaths of federal law—but of course not federal constitutional law—to the lower courts. To specialists in those fields the Court is a deus absconditus.
+
+The more the Court is seen as preoccupied with “hot-button” constitutional cases, the more it looks like a political body exercising discretion comparable in breadth to that of a legislature. Because the federal Constitution is so difficult to amend, the Court exercises more power, on average, when it is deciding constitutional cases than when it is deciding statutory ones. A constitution tends, moreover, to deal with fundamental issues, which arouse greater emotion than most statutory issues, and emotion can deflect judges from dispassionate technical analysis. And they are political issues: issues about political governance, political values, political rights, and political power. Constitutional provisions tend also to be both old and vague—old because amendments are infrequent (in part because amending is so difficult) and vague because when amending is difficult, a precisely worded constitutional provision tends to become an embarrassment; it will not bend easily to adjust to changed circumstances, and circumstances change more over a long interval than over a short one.
+
+A constitutional court composed of unelected, life-tenured judges, guided in deciding issues at once emotional and political only by a very old and in critical passages very vague constitution as difficult to amend as the U.S. Constitution is, is bound to be a powerful political organ unless, despite the opportunities presented to the Justices, they manage somehow to behave like other judges. But how can they, when with so little guidance from the Constitution they are asked to resolve issues of great political significance? Political issues by definition cannot be referred to a neutral expert for resolution. A political dispute is a test of strength in which the “minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.”6 Political issues can be resolved only by force or one of its civilized substitutes, such as voting—including voting by judges in cases in which their political preferences are likely to determine how they vote because of lack of guidance from the constitutional text.
+
+The Court is awash in an ocean of discretion. Asked in Roper v. Simmons7 to decide whether the execution of murderers under the age of 18 was constitutional, the Court was at large. The external constraints were nil. The Justices did not have to worry about being reversed by a higher court if they gave the “wrong” answer, let alone being hounded from office or seeing their decision flouted by Congress, the President, or some state official. One can imagine decisions by the Supreme Court that would evoke constitutional amendments or provoke budgetary or other retaliation by Congress. One can even imagine decisions that the President would refuse to enforce or that would incite a movement to impeach a Justice. There are historical precedents for such a push back. The more judges throw their weight around, the greater the pressure for curbing their independence.8 And because the Court, though powerful, cannot put its hands on most of the levers of governmental power, Congress or the President, without visibly retaliating, is often able to pull the sting from a constitutional decision.
+
+There was no danger that Roper would provoke a reaction from the other branches of government. But consider the Booker and Kelo decisions, also from the 2004 term.9 Booker enlarged the sentencing discretion of federal judges, and there were rumblings in Congress, which suspected that judges would use the additional discretion to impose more lenient sentences. That suspicion seems thus far largely groundless—sentencing practices and average sentencing length appear largely unchanged since Booker10—but had they changed, or for that matter before they changed, Congress could have reacted by raising the minimum sentences specified in federal criminal statutes. Kelo interpreted the “public use” criterion of eminent domain broadly, stirring up such a storm of controversy that Congress and the states have taken steps to deprive the interpretation of its significance by placing limits on the use of the eminent domain power. So the Supreme Court is not omnipotent, even in constitutional cases. But the contention that the judiciary is the “weakest” branch of government11 is misleading. It is plenty strong.
+
+What is true is that, as I noted in chapter 5, the Court is more constrained by public opinion than the lower federal courts are because of its much greater visibility, which is due to the greater impact of its decisions. A court of appeals can get away with declaring the phrase “under God” in the Pledge of Allegiance unconstitutional12 because its decision is binding in only one region of the country, and even then only until reversed by the Supreme Court, as the decision in that case was, on a technical ground (lack of standing to sue) that enabled the Court to avoid the wrath of both sides in the heated national debate over the role of religion in public life.13 A radically unpopular decision by the Supreme Court could provoke swifter and fiercer retaliation than the same decision by a lower court. Imagine if the Supreme Court of the United States rather than the Supreme Judicial Court of Massachusetts had created a constitutional right to gay marriage.
+
+This is a clue to what an extraordinary judicial institution the U.S. Supreme Court is. The usual external constraints on judicial discretion are severely attenuated except for public opinion, which operates more strongly on the Supreme Court than on the ordinary courts. Yet that is one of the most problematic of external constraints on judges. Legislators are supposed to be constrained by public opinion; judges are supposed to ignore it.
+
+Nor did any of the internal constraints narrow the Justices’ discretion in the Roper case. The Justices did not have to worry that someone or something (their own judicial consciences, perhaps) would harrow them for disregarding controlling texts in reaching the result they did. The Eighth Amendment’s prohibition of “cruel and unusual punishments” is a sponge. One might think that if not the text of the Eighth Amendment, then perhaps its history, could disambiguate the meaning of the term. That would have made a quick end to young Simmons. But the Court frequently disregards the history of constitutional provisions on the sensible ground that vague provisions (and even some rather definite ones) should be interpreted with reference to current values rather than eighteenth-century ones. Even Justice Scalia, we recall, does not think that flogging criminals would pass muster under the Eighth Amendment today, as it would have in the eighteenth century.14
+
+A sponge is not constraining; nor, in the Supreme Court, is precedent. The Court in Roper brushed aside Stanford v. Kentucky,15 which had held that executing a 16- or 17-year-old (Simmons was 17) does not violate the prohibition against cruel and unusual punishments. The Court is reluctant to overrule its previous decisions, but the reluctance is prudential rather than dictated by the law. Unlike a lower court, the Supreme Court always has a choice of whether to follow a precedent. If the Court follows a precedent because it agrees with it, the precedent has no independent force, no “authority,” any more than a law review article that the Court happened to agree with would have authority. Yet the number of cases in which precedent dictated the outcome might be small even if the Justices were committed to following precedent unbendingly, because then they would write narrow decisions and interpret their predecessors’ decisions narrowly, lest the dead hand of past decisions prevent the law from adapting to changed conditions.
+
+Nor does conformity to precedent make a decision “correct” in a robust sense. The precedent may be wrong, yet the Court may decide to follow it anyway. Suppose the Court issues a decision, A, and years later an indistinguishable case, B, comes up for decision. (Actually this is rather unlikely to happen, because the lower court in which B was filed would have applied A, and there would have been no occasion for the Court to hear B. But ignore this point, though it is a reason for doubting that precedent determines many Supreme Court decisions.) Even if all the current Justices disagree with A, the Court might decide to reaffirm it—perhaps to create the impression that the Court is rule-bound rather than rudderless, or perhaps because people have relied on and adjusted to A. So the Court decides B the same way. If later C comes up for decision and is indistinguishable from A and B, the fact that both A and B would have to be overruled for C to be decided as the Court would prefer to decide it becomes an even stronger reason to decide it the same way as the two previous cases. There is nothing in this lengthening line of precedent to suggest that C is “correct,” as distinct from institutionally appropriate.
+
+In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justices O’Connor, Kennedy, and Souter, in a joint opinion, let slip the mask, and in a part of the opinion agreed to by a majority of the Justices explicitly grounded the policy of adhering to precedent in concerns for the Court’s political effectiveness: “There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.”16 It is unlikely that the Justices meant that it would be “implausible” to impute vast error to earlier Supreme Court Justices. There is nothing implausible about that; it is possible to disagree on entirely plausible grounds with immense reaches of Court-fashioned constitutional law, including the use of the Fourteenth Amendment to make the Bill of Rights (with minor exceptions) applicable to the states, a move that has spawned thousands of decisions. And think of all the decisions that went down the drain when the Supreme Court overruled Swift v. Tyson.17 Probably the three Justices meant only that whatever the Court may think of particular prior decisions, it must adhere to most of them lest the public tumble to the epistemic shallowness of the body of constitutional law that the Supreme Court has erected upon the defenseless text of the Constitution. It is because so many of the Court’s decisions could so easily be questioned that error must not be acknowledged more than very occasionally.
+
+Honoring precedent independently of whether it is sound injects path dependence into law: where you end depends to a great extent on where you began. Today’s law may be what it is not because of today’s needs but because of accidents of judicial appointment many years ago that resulted in decisions that no one agrees with today but that courts let stand as a matter of prudence. The authors of the joint opinion in Casey made clear that they thought the famous case they were reaffirming (actually just the core of it), Roe v. Wade, had been decided incorrectly. Undoubtedly a majority of today’s Court disagrees with a great number of the decisions rendered by a much more liberal Court in the turbulent 1960s. A newly appointed Supreme Court Justice may pay lip service to most of the Court’s earlier decisions even if he dislikes the policies on which they rest. But he will construe those decisions narrowly in order to minimize their impact. And when he finds himself, as he often will, in the open area in which conventional sources of law, such as clearly applicable precedents, give out, he will not feel bound by those policies. So if he can command a majority the law will veer off in a new direction. Eventually the old precedents will be interpreted to death or, finally, overruled explicitly.
+
+This process of gradual extinguishment of unloved precedents, illustrated in the Court’s 2006 term by the plurality opinion in Hein v. Freedom From Religion Foundation, Inc.,18 written by the Court’s newest member (Alito), is rudely referred to as “boiling the frog.” If you want to boil a frog, you put him in warm water and gradually turn up the heat; should you put him in boiling water at the start, he would jump out and you would have to put him back and this time hold him down. Either way he would die, though more slowly the first way, and Justice Alito’s warm-water opinion likewise augurs the eventual demise of taxpayer standing to challenge religious establishments.
+
+The decisional process that I am characterizing as political and strategic may sound just like the method of the common law. Judges make up the common law as they go along, yet common law decision making is a lawlike activity. It is suffused with policies that reflect political judgments (for example, in favor of capitalism), but differs from constitutional law in critical respects. It is a decentralized, quasi-competitive system of lawmaking because each of the 50 U.S. states is sovereign in the common law fields. It is subject to legislative override. It deals mainly with subjects on which there is a considerable political consensus (who opposes enforcing contracts or providing a remedy for victims of negligence?), so that deciding a case does not require making a political choice. And common law judges proceed incrementally, giving great weight to precedent, hesitating to lay down broad, flat rules. As a result of these things, the common law is more disciplined and predictable, less personal and political, than constitutional law—to such a degree, indeed, as to make “common law constitutional interpretation”19 an oxymoron.
+
+Evidence of the powerful influence of politics on constitutional adjudication in the Supreme Court lies everywhere at hand. Consider the emphasis placed in confirmation hearings on the nominee’s ideology to the exclusion of his legal ability. Not a single question directed to John Roberts in his hearing for confirmation as Chief Justice of the United States was designed to test his legal acumen. Nowadays a certain minimum competence is demanded (and Roberts did receive some tokens of respect for his outstanding credentials). But above that level the contenders get little credit for being abler legal analysts than their competitors, and sometimes they receive negative credit. That was the fate of Robert Bork, whose intellectual distinction was held against him as making him more dangerous.20
+
+Confirmation battles are not mere posturing by politicians who do not understand that Supreme Court Justices are not like them. Think of the Supreme Court’s decision, shortly after Samuel Alito replaced Sandra Day O’Connor, upholding the federal partial-birth abortion statute.21 The decision in effect overruled Stenberg v. Carhart,22 where a few years earlier the Supreme Court had invalidated an essentially identical state statute. Justice Kennedy, the author of the majority opinion in the new decision, had dissented in Stenberg, and it is apparent that what made the difference in the outcomes of the two cases was not the minor differences between the statutes but the replacement of O’Connor (part of the 5–4 majority in Stenberg) by the more conservative Alito, which gave Kennedy the fifth vote that he needed. Kennedy’s attempt to distinguish Stenberg was so unconvincing that it makes one think that when he said in Casey that overruling weakens the Court, he meant that only acknowledged overruling has that effect.
+
+Or glance back through 50 years of distinguished Forewords to the Harvard Law Review’s annual Supreme Court issue and ask yourself whether the positions urged in them could be thought interpretive in a deferential sense—interpretation as discovering as opposed to imposing meaning—rather than legislative. When, for example, Harvard law professor Frank Michelman proposed that the equal protection clause be interpreted to require minimum welfare benefits for poor people,23 could he have thought his proposal a discovery of the meaning of equal protection? What he was saying sotto voce was that as a liberal he would like to see the Supreme Court do something for poor people and that the Court could do so, without being laughed at too hard, by employing the rhetoric of equal protection deployed in his Foreword. If one is not a welfare-state liberal, Michelman’s argument—his brief, really—falls flat even if one would bow to a persuasive argument that welfare rights really are found in the equal protection clause. No such argument is available.
+
+In Roper the Supreme Court was not interpreting a directive text, hewing to a convincing historical understanding of the Constitution, or employing apolitical principles of stare decisis or common law adjudication. It was doing what a legislature asked to allow the execution of 17-year-old murderers would be doing: making a political judgment. That is true of most of the Court’s constitutional decisions, even of the most celebrated constitutional decision of modern times, Brown v. Board of Education.24 On legalist grounds, Brown could without any sense of strain have been decided in favor of the school board by a literal interpretation of the equal protection clause and a respectful bow to Plessy v. Ferguson,25 which had upheld “separate but equal” a half century before Brown, and the reliance that the southern states had placed on Plessy in configuring their public school systems.26 The “rightness” of Brown owes nothing to legalist analysis, and its acceptance may be due largely to the civil rights revolution led by Martin Luther King, Jr., that followed it.
+
+The implicit ground of the decision was the Court’s disapproving recognition that the segregation of public facilities in the South was intended to keep black Americans in a servile state, separate and unequal, stamped by their compelled separation as racially inferior (“no dogs or negroes allowed”). This system was contrary to American ideals, gratuitously cruel, and an embarrassment to the United States in its conflict with international communism. It was also based on inaccurate beliefs about the capabilities of black people—and to show that a policy is based on factual error is an especially powerful, because objective, form of criticism. That is why sophisticated modern religions avoid making claims that could be falsified empirically, such as that tossing a goat into a live volcano will bring rain.
+
+Against the decision in Brown it could be argued, first, that if instead of forbidding public school segregation the Court had insisted that states practicing segregation spend as much money per black as per white pupil, the expense of maintaining parallel public school systems might have forced integration more rapidly than the Court’s actual decision, which was not fully implemented for decades.27 Second, to decide Brown the way it wanted to, the Court had to overrule a long-established decision, heavily relied on by the segregationist states in fashioning their institutions, educational and otherwise, and to do so in the face of evidence that the framers and ratifiers of the equal protection clause had intended only to protect blacks against the withdrawal of the standard police protections that whites received, so that blacks would not be outlaws in a literal sense.28 Third, for reasons of politesse the Court was unwilling to state forthrightly that segregation was racist and instead had to cite unconvincing social science evidence concerning the psychological effect of segregated schooling. But the second and third criticisms just identify Brown as a political decision and the opinion as a political document. It was a politically sound decision and a politically sound opinion, and apparently that is good enough, for no responsible critic of the Court questions the soundness of Brown anymore.
+
+Brown has achieved such prestige that a plurality of the Justices, in a recent decision curtailing affirmative action (reverse discrimination) in public schools, intimated (and one of the members of the plurality, Justice Thomas, stated outright) that Brown holds that the Constitution is “colorblind”—that is, that it forbids discrimination in favor of blacks or other minorities as flatly as it forbids discrimination against them.29 Whatever the merits of the “colorblind” interpretation of equal protection, it is disingenuous (as well as unpragmatic, as I suggested in chapter 9) to ascribe it to Brown. The Justices in Brown were not thinking about affirmative action, but about the plight of blacks under the apartheid regime then prevailing in the southern (and some border) states. The invocation of Brown in the recent decision was fig-leafing.
+
+It is the unusual constitutional case in which everyone agrees to waive legalist objections by observing that, yes, it was decided on political grounds, but they were good grounds and it would be pedantic to demand more. In this regard Plessy v. Ferguson differs from another famous overruled decision, Lochner v. New York.30 Although a number of respectable legal thinkers believe that the maximum-hours statute invalidated in Lochner was a bad statute rightly invalidated,31 no one wants to reinstate racial segregation. Typically, as with Lochner, there is persisting disagreement over the political desirability of a famous (or notorious) constitutional decision, and this disagreement blocks consensus on whether the decision was correct.
+
+Although Brown is a classic legislative decision, there are cases in which Justices vote for results that they would not support were they legislators whose constituents permitted them a free choice. Examples from the 2004 term include Florida v. Nixon,32 in which Justice Ginsburg wrote the Court’s opinion reinstating a death sentence that a state supreme court had reversed on federal constitutional grounds, and (less certainly) Illinois v. Caballes,33 in which Justice Stevens wrote the Court’s opinion holding that a dog sniff conducted during a lawful traffic stop was not a search because it could not reveal anything other than the presence of an unlawful substance and so did not invade a legitimate interest in privacy.
+
+Justices occasionally, and sometimes credibly, issue disclaimers that a particular outcome for which they voted is one they would vote for as a legislator. I believe Justice Scalia when he says that his vote to hold the burning of the American flag as a form of political expression that is constitutionally privileged34 was contrary to his legislative preferences;35 and I believe Justice Thomas when he says that he would not vote for a law criminalizing homosexual sodomy even as he dissented from the decision invalidating such laws.36 But such discrepancies between personal and judicial positions usually concern rather trivial issues, where the judicial position may be supporting a more important, though not necessarily a less personal, agenda of the Justice. No one except a military veteran is likely to get excited about flag burning (and sure enough, the three veterans on the Court when the flag-burning cases were decided, though politically diverse, all dissented, joined by Justice O’Connor). Not only is flag burning rare and inconsequential, but it is likely to be even more rare if it is not punishable—for then the flag burner is taking no risks, and his action, being costless to him, does not signal deep conviction to others and so loses its symbolic and hortatory significance. (Where would Christianity be without its martyrs?) And only someone deeply disturbed by homosexuality could mourn the passing of the sodomy laws, since by the time the Supreme Court declared them unconstitutional they had been repealed or invalidated on state law grounds in most states and had virtually ceased to be enforced in the remaining ones, though people deeply hostile to homosexuality may have valued the laws as symbolic statements. One thing important to Justice Scalia is promoting an approach to the Constitution that would, if adopted, entail the eventual overruling of Roe v. Wade and other decisions of which he deeply disapproves. And one thing important to Justice Thomas (as well as to Scalia) is opposing the kind of “living constitution” rhetoric deployed by Justice Kennedy in homosexual rights cases,37 a rhetoric that invites conforming constitutional law to the personal preferences of “progressive” jurists. In effect, Justices Scalia and Thomas trade a minor preference for a major one.
+
+But this is not a satisfactory explanation for Scalia’s vote in the flag-burning cases. Nothing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech. The First Amendment forbids Congress to pass laws abridging “freedom of speech.” But the term is not defined and cannot be taken literally because that would make libel, slander, criminal solicitation, betrayal of military secrets, the broadcasting of obscenities in prime-time television, child pornography, fraudulent advertising, publishing stolen trade secrets, infringing copyrights, public employees’ speech within the scope of their employment, and falsely shouting “Fire!” in a crowded theater all constitutionally privileged acts—which the Supreme Court has held they are not. Burning a flag is not even “speech” in a literal sense. So without offending a textualist or an originalist the Court could have ruled that, like assassinating one’s political opponents or parading naked through the streets in order to promote nudism, burning things is not “speech,” though it can be highly expressive.
+
+So maybe Justice Scalia is not really a textualist or an originalist. Or maybe textualism-originalism should be thought a component of a broader concept of legalism that makes a place for the doctrine of precedent. That would be an uneasy alliance, since most of the threads in the fabric of constitutional law are nonoriginalist precedents. Anyway, adherence to precedent cannot explain Scalia’s vote in the flag-burning cases. As the dissenting Justices explained, there was no ruling precedent. There was a constitutional doctrine, tenuously rooted in the text of the First Amendment, to the effect that any public expressive activity is privileged unless it does significant harm. The doctrine is far from clear, but it would be muddier still were there an exception for flag burning; and Scalia prefers rules to standards, a preference common among legalists, as we know, because it enlarges the area for legalist decision making. But it is not a preference that can be derived by legalist techniques, all of which favored the dissenters in the flag-burning cases.
+
+Scalia’s vote in Booker, the case that demoted the federal sentencing guidelines from mandatory to advisory status, may seem to have cut against his legislative preferences more sharply than his vote in the flag-burning cases. Yet neither Booker nor the version that Scalia would have preferred, which would not have required even the qualified adherence to the guidelines that Justice Breyer’s majority opinion requires, is likely to cause a reduction in the average severity of criminal sentences. (We saw earlier that apparently it has not had such an effect.) The guidelines had narrowed the sentencing variance among judges, but the narrowing did not make the average defendant worse off (unless he was a risk preferrer). The average severity of federal sentences did rise during the regime of the mandatory guidelines.38 But that was because of choices made by the Sentencing Commission in picking specific guidelines, not because the guidelines required that sentences be based on judicial fact-finding rather than, as in the old days, on judicial whim. Anyway, Congress has the last word on how severely to punish federal crimes, and Scalia does not object to sentencing schemes that allow judges to pick a sentence anywhere between the floor and the ceiling set by Congress. A “rule of law” aficionado like Justice Scalia might be expected to oppose increasing the discretion of sentencing judges, but pockets of discretion, such as sentencing and jury trials, have rarely bothered judges who prefer rules to standards.
+
+It is not an adequate reply to criticism of a controversial decision that a Justice joined to say that he was voting against his “desire.” People have multiple desires, often conflicting, and they must weigh them against each other in coming to a decision—the lesson of Buchanan v. Warley, discussed in chapter 1. A Justice may desire that burning the American flag be punished but desire more that constitutional standards such as freedom of speech be recast as rules that have few exceptions. Justice Scalia surely disapproves of extravagant awards of punitive damages to tort plaintiffs, but he disapproves more of the concept of substantive due process that his colleagues have used to impose a constitutional limit on those awards.39 Such doctrinal beliefs are as personal or political as the desire for a particular outcome; they are not the product of submission to the compulsion of the constitutional text or of some other conventional source of legal guidance (though the judge may think they are) because there are no such compulsions in the cases that I have been discussing. The conventional “left” and “right” ideologies are not the only things that matter to Supreme Court Justices. But the other things that matter to them need not be professional legal norms, especially ones incapable of guiding decisions because their application requires a clear constitutional text or a binding precedent—and remember that the Court is never bound by precedent.
+
+Sometimes, moreover, what is involved in voting against one’s seeming druthers may be a calculation that the appearance of being “principled” is rhetorically and politically effective. It fools people. So it is worth adhering to principle when the cost to the judge’s substantive objectives is slight.
+
+I do not mean to be portraying the Justices as cynics who consciously make the trade-offs that I have been describing. I assume they accept the conventional law-constrained conception of judges and believe they conform to it. They would be uncomfortable otherwise, for they would experience cognitive dissonance. Most jobholders believe their job performance conforms to their employer’s reasonable expectations; many are mistaken.
+
+The expanded role of law clerks in the work of the Supreme Court (as in that of the lower courts) has produced an unearned increase in the judicial comfort level. Supreme Court law clerks are more numerous and experienced (because all now have spent at least a year in a lower-court clerkship before coming to the Court) than they used to be.40 They are also on average somewhat abler because law schools draw a higher average quality of applicants than they used to,41 probably as a consequence of the astronomical salaries of elite lawyers. There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish. So a Supreme Court Justice—however questionable his position in a particular case might seem to be—can, without lifting a pen or touching the computer keyboard, but merely by whistling for his law clerks, assure himself that he can defend whatever position he wants to take with enough professional panache to keep the critics at bay. A law clerk is not going to tell his Justice “It won’t write”—the symbol of the self-disciplining effect of authorship. It would be a confession of inadequacy. So “delegation of the opinion-drafting function to law clerks may increase the propensity of Justices to decide cases based solely on their policy preferences.”42 The more that is delegated (because of more and better clerks), the more sway the propensity can be expected to have.
+
+It is true that some constitutional cases can be decided by conventional legalist techniques, just by placing the facts alongside the constitutional text. But they tend to be hypothetical rather than real cases. If Congress passed a law requiring that all books be submitted to a presidential board of censors for approval to be withheld if any of them criticized any federal official, adjudging the statute unconstitutional would not require the Justices to make a political judgment. But cases that clear arise infrequently, and when they do they rarely reach the Supreme Court. And the cases that are unclear in a legalist sense are rarely clear in a political sense. Brown was exceptional. Many of the landmark Supreme Court decisions were decided by close votes and would have been decided the other way had the Court been differently but no less ably manned. Even Brown, which was unanimous, might have been decided differently had Earl Warren not been Chief Justice.43
+
+If constitutional law is saturated by political judgments, a Justice has a choice between accepting the political character of constitutional adjudication wholeheartedly and voting in cases much as legislators vote on bills, or, feeling bashful about being a politician in robes, setting for himself a very high threshold for voting to invalidate on constitutional grounds the action of another branch of government. The first, the “aggressive judge” approach (“judicial activism”), expands the Court’s authority relative to that of the other branches of government. (Judges like to refer to these as the “political branches,” as if the federal judiciary itself were not a politically powerful branch of government.) The second, the “modest judge” approach (“judicial self-restraint”), tells the Court to think very hard indeed before undertaking to nullify the actions of the other branches of government.
+
+But we must distinguish between two senses of “judicial activism.” In one sense, the sense in which I have just used the term, it means enlarging judicial power at the expense of the power of the other branches of government (both federal and state).44 In another but misleading sense it refers to the legalist’s conceit that his technique for deciding cases minimizes judicial power by transferring much of that power back, as it were, to elected officials (not only legislators but also the members of the state conventions that ratified the Constitution), from whom the judges are thought to have wrested it by loose construction. The two senses may seem the same, both trying to rein in judges. They are not. The legalist implements his approach by literal (textualist) or historical (originalist) interpretation of statutes and the Constitution, and such interpretation, though nominally referrable back to elected officials, often has the effect of curtailing the powers of the nonjudicial branches. Think of what a literal interpretation of the commerce clause, of the First Amendment’s free-speech clause, or of the Second Amendment’s right to bear arms would do to the government’s ability to keep military secrets, punish criminal solicitation, regulate transportation or communications that do not cross state lines or national boundaries, and forbid the sale of heavy weaponry to private persons. The Constitution of 1787 envisioned a much smaller federal government than we now have, and legalist techniques could be used to carve the government back to its eighteenth-century dimensions. Legalists of the “Constitution in Exile” school think that the Constitution as a whole is greatly underenforced, while legalists in the Bush Administration think that Article II (presidential power) is greatly underenforced.
+
+Judicial modesty or self-restraint, understood as the rejection of judicial activism in the sense of judicial aggrandizement at the expense of the other branches of government, is not a legalist idea but a pragmatic one. The notion of Holmes and Brandeis that the states are laboratories for social experimentation is at once quintessentially pragmatic in exalting experimentation over a priori judgments and a keystone of a policy of judicial modesty, although pragmatism could be thought to counsel activism in cases in which a statute challenged on constitutional grounds limits experimentation, such as the federal ban on partial-birth abortion that the Supreme Court has upheld.
+
+Versions of judicial modesty include Thayer’s principle that statutes should be invalidated only if they are contrary to any reasonable understanding of the constitutional text45 and Holmes’s “can’t helps”46 or “puke” test: a statute is unconstitutional only if it makes you want to throw up.47 Holmes was not speaking literally, of course; he meant only that a conviction of error is not enough—there must be revulsion. But there is a difference between the two approaches. Thayer’s is a one-way approach, Holmes’s a two-way. Thayer’s approach limits—it never expands—judicial review. Holmes’s approach allows judges to stretch the constitutional text when necessary to avoid extreme injustice. Holmes’s Constitution has no gaps—it is noteworthy how rarely his constitutional opinions quote the constitutional text.
+
+The difference between their approaches illuminates Griswold v. Connecticut,48 which invalidated a Connecticut statute—anachronistic in 1965 (only Massachusetts, another heavily Catholic state, had a similar statute) and well-nigh incomprehensible today—that forbade the use of contraceptives, with no exception even for married couples. A Thayerian would disapprove of the decision because the statute was not unconstitutional beyond a reasonable doubt; indeed, it is difficult to find a provision of the Constitution on which to hang one’s hat in a case about contraception. A Holmesian might find the statute so appalling (not only because of its theocratic cast, but also because its only practical effect was, by preventing birth control clinics from operating, to deny poor married couples access to contraceptive devices other than condoms49) that he would vote to invalidate it despite the difficulty of grounding his vote in the constitutional text. A Holmesian might react similarly to Harmelin v. Michigan,50 in which the Court refused to invalidate a life sentence for possessing a small quantity of cocaine. Actually there was a bigger constitutional handle in that case for invalidating the sentence—the cruel and unusual punishments clause of the Eighth Amendment—than there was for invalidating the statute in Griswold.
+
+In the modest role the Justice is still a politician, but he is a timid one. He wants the Supreme Court to play a role a bit like that of the House of Lords after its authority shrank to the delaying of legislation voted by the House of Commons. The Court can keep its thumb in the dike only so long; if public opinion is overwhelming, the Justices must give way, as any politician would have to do.
+
+If the Justices acknowledged to themselves the essentially personal, subjective, political, and, from a legalist standpoint, arbitrary character of most of their constitutional decisions, then—deprived of “the law made me do it” rationalization for their exercise of power—they might be less aggressive upsetters of political applecarts than they are. But that is probably too much to expect, because the “if” condition cannot be satisfied. For judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job. Acknowledging that they were making political choices would also undermine their confidence in the soundness of their decisions, since judges’ political choices cannot be justified by reference to their professional background or training. Judges do not like to think that they are expressing an amateurish personal view when they decide a difficult case. Some judges “agonize” over their decisions; most do not; but both sorts feel a psychological compulsion to think they are making the right decision. (Some judges think that just by virtue of their having been made judges, their decisions must be right, or at least as right as any other judge’s.) A judge who does not become comfortable with his decision by the time it is handed down might ever after be tormented by doubts that it was correct. No one likes to be tormented, so judges do not look back and worry about how many of their thousands of judicial votes may have been mistaken. As the years pass they become increasingly confident because they have behind them an ever-longer train of decisions that they doubt not are sound. Anent self-torment, I admit that Justice Blackmun was not a happy camper.51 But his decisions were no less predictable, and certainly no less aggressive in their assertion of judicial power, than those of Justices who take a more relaxed attitude toward their judicial duties.
+
+Judicial modesty is not the order of the day in the Supreme Court. I instanced Roper; a further example is the already mentioned Booker.52 Legislatures typically specify for each crime a minimum and a maximum sentence—often far apart, thus creating a wide sentencing range—and let the judge pick any sentence within the range to impose on the particular defendant. The mandatory sentencing guidelines curtailed judges’ sentencing discretion, but Booker restored it, though not completely, because the Court ruled that the judge must still compute the defendant’s guidelines sentence and that any departure from it must be reasonable in light of sentencing factors set forth in the Sentencing Reform Act.53
+
+The guidelines required that the sentence be based not only on the facts about the defendant’s conduct that the jury had found beyond a reasonable doubt but also on facts that the judge found at the sentencing hearing by a mere preponderance of the evidence. The defendant might have been indicted for and convicted of possessing with intent to distribute two grams of cocaine, but if the government at the sentencing hearing persuaded the judge by a preponderance of the evidence that the defendant had actually possessed with intent to distribute 200 grams, he would have to sentence the defendant in accordance with the guideline applicable to the larger quantity.
+
+Yet under the pre-guidelines regime, which no Justice thought unconstitutional, sentencing had been even more lax procedurally. The sentencing judge could impose the statutory maximum sentence without any evidence at all having been presented at the sentencing hearing concerning the actual amount of the illegal drug that the defendant had possessed above the statutory minimum found by the jury.
+
+Why the mandatory feature of the guidelines should have been thought to violate the Sixth Amendment, a provision designed for the protection of criminal defendants, is a mystery. Gearing sentences to findings made on the basis of evidence gave defendants more procedural rights than they had had before the guidelines, when judges could pick any point in the statutory sentencing range when determining a sentence. Because judges’ discretion had been greater (hence the greater variance in sentences), defendants’ rights had been fewer, since a plea to a judge to exercise his discretion in favor of imposing a lenient sentence is a plea for mercy rather than a claim of right, unless his discretion is tightly cabined, as it was not in the pre-guidelines sentencing regime.
+
+Invalidation of the mandatory feature of the guidelines did not solve the problem of procedural informality in sentencing. The government can still put on a bare-bones case yet count on a heavy sentence if the judge is known to be unsympathetic to the class of offenders to which the defendant belongs. And the judge must still compute the guidelines sentence, which may be high because of evidence first presented at the sentencing hearing. Although he is not bound to impose that sentence, imposing it is the course of least resistance because any deviation must be justified to the appellate court as “reasonable,” whereas a guidelines sentence can be presumed by that court to be reasonable.54
+
+However the Sixth Amendment issue should have been resolved, the Court’s resolution reflected an ingenious compromise, forged by Justice Breyer, under which the guidelines, though demoted to advisory status (in other words, to being genuine “guidelines”), retain considerable bite. The sentencing judge must still, as I noted, calculate the guidelines sentence, though he can give a different sentence. But some departures from guidelines sentences had been authorized by the Sentencing Commission itself,55 so that all the Court did in the end was to loosen the bindings a little more—and in doing so make more work for the district judges. The Sentencing Reform Act contains a laundry list of factors that the judge is to consider in picking a sentence within the statutory limits.56 Until Booker, the use that a sentencing judge could make of the factors was severely circumscribed by the statute itself in order to ensure the guidelines’ mandatory character.57 Since judges must still calculate the guidelines sentence but now must consider the statutory sentencing factors as well, the Court has increased the burden of sentencing—with benefits that are obscure. The mandatory guidelines regime could not be thought inconsistent with a reasonable understanding of the Sixth Amendment; it was not revolting either. So it flunked neither Thayer’s test of unconstitutionality nor Holmes’s. A modest judge would have voted to reject the constitutional challenge to the guidelines.
+
+For completeness I note that some constitutional issues can be resolved satisfactorily on grounds neither legalist nor political in any contentious sense of those words. Here is an example, albeit a hypothetical one. Article I, section 9, of the Constitution—the “suspension clause”—authorizes Congress to suspend habeas corpus in times of invasion or rebellion. In the eighteenth century, when the Constitution was promulgated, habeas corpus had the limited function of protecting a person against being detained by the government without judicial acquiescence in the detention. Habeas corpus enabled the detainee to require the government to satisfy a judge of its legal right to hold him. So if he was a convicted criminal, all the government had to prove was that he had been convicted by a court that had jurisdiction to try him.58 But later Congress expanded federal habeas corpus and today it is a means by which convicted criminals, having exhausted their direct appellate remedies, can challenge their conviction or prison sentence on constitutional grounds.
+
+Suppose now that Congress curtailed or even eliminated federal habeas corpus as a postconviction remedy, though there was no rebellion or invasion. Would that be a violation of the suspension clause? An originalist would say no; a “living Constitution” buff would say yes; a textualist (here illustrating a fissure in the textualist-originalist school) would also have to say yes (habeas corpus is habeas corpus). But one does not need a theory to recognize that a judge’s ruling that “curtailing an optional statutory enlargement violates the suspension clause would create an irrational ratchet. Habeas corpus could always be enlarged, but once enlarged could not be returned to its previous, less generous scope without a constitutional amendment. Once this was understood, there would be few if any further enlargements.”59 If an expansion of habeas corpus could thus be rescinded only by amending the suspension clause, this would mean that Congress could entrench a statute against repeal, just as if the expansion of habeas corpus had been authorized by a constitutional amendment. The effect would be to enlarge Congress’s power beyond the boundaries set for it in Article I and to bypass the procedure specified in Article V for amending the Constitution.
+
+A decision by Congress to eliminate all postconviction remedies could still be challenged. But the proper ground would be due process rather than the suspension clause, which limits a much more ominous form of government action—executive or military detention, bypassing the courts altogether. Rejecting a claim based on the suspension clause, however, though it would have political significance as well as legalist and pragmatic justifications, would not be “political,” because liberals and conservatives ought to be able to agree on the result.
+
+Still, the bin containing cases that are at once politically contentious and legalistically indeterminate is chronically overflowing in the Supreme Court. It is no surprise that the search for an alternative to conceiving of the Court as a political organ has been a preoccupation of the Supreme Court Forewords published annually in the Harvard Law Review for the past half century. One of the most interesting is Henry Hart’s.60 It focuses on the effect of caseload on the judicial process in the Supreme Court. Hart is usually thought an apostle of the legal process approach. But it would be more accurate to describe him as a Progressive reformer in a sense that associates him with such diverse persons and movements as Max Weber, Woodrow Wilson, Louis Brandeis, and the New Deal, and thus with the exaltation of expertise, in the American setting with the celebration of the administrative agency as the epitome of law made rational, expert, and modern, and even with the legal realist movement. I think Hart in his Foreword was trying to say that if only the Supreme Court would behave in the hyperrational fashion of idealized administrative agencies, its decisions would be legitimate by virtue not of their pedigree (of being sound interpretations of past political settlements, such as the Constitution) but of the expertness of the decision makers. The Court would be a superlegislature because it was super. But it would not be political in the usual sense, as legislatures are; its model would be a politically neutral civil service guided by reason rather than public opinion. Justice Jackson’s famous dictum61 would be reversed: the Court would be final because it was infallible. What was holding the Court back, Hart thought, was that it was failing to allocate its time sensibly. The Justices were not taking enough time to discuss the cases thoroughly because they were granting certiorari profligately and therefore hearing too many unimportant cases. Hart’s was the Progressive dream of policy emptied of politics by procedure.
+
+A pipe dream, actually. From a distance of half a century, Hart’s Foreword seems either naïve to the point of almost total cluelessness or intellectually dishonest in arguing that what was preventing the Justices from fulfilling the Progressive agenda was that they were using their time inefficiently. He seems to have had no sense of how judges, including Supreme Court Justices, actually used (and use) their time. Even when he wrote, it was not true that “writing opinions [was] the most time-consuming of all judicial work, and the least susceptible of effective assistance from a law clerk.”62 Today, as we know, most judicial opinions, including many Supreme Court opinions, are largely ghostwritten by law clerks. Though there were fewer law clerks per judge (or Justice) in the 1950s, when Hart was writing, even then many of the Justices’ opinions were written by clerks, as Hart either did not know or pretended not to know. He may not have realized that because writing judicial opinions is for most judges a chore rather than a joy, the availability of law clerks eager to lift that chore from their judges’ shoulders allows judges plenty of time to discuss the cases with each other—if they want to.
+
+A giant “if.” The naïveté of Hart’s “time chart” (his tabulation of the time that Justices devoted to their various judicial tasks, proving to his satisfaction that they lacked the time to deliberate adequately) was noted at the time by the legal realist Thurman Arnold. His rudely accurate assessment of Hart’s Foreword—“there is no such process as [the maturing of collective thought], and there never has been; men of positive views are only hardened in those views by [judicial] conferences”63—was summarily dismissed by Hart’s dean, Erwin Griswold.64 The rough tone of Arnold’s article and the transparency of his political motivations made his diatribe easy to disparage. But his central point was correct.
+
+Griswold wrote that “the volume of the work of the Court is staggering,” the Justices being busy “reading long records” and “writing reflective opinions.”65 These things were not true when he wrote and are not true today. Justices do not read the full records of the cases they decide—much, sometimes all, of the record of a case is irrelevant, and most of the relevant parts have been distilled in the opinions of the lower courts. The Justices delegate much of the opinion writing. And the opinions are rarely “reflective”; they are briefs in support of the decision.
+
+Griswold acknowledged that the process of adjudication at the Supreme Court level is “not a merely mechanical one” (he meant not legalistic).66 But he described it as “a tightly guided process. The scope of individual decision is properly narrow.”67 That is not true either; the Justices exercise vast discretion, thrashing about in a trackless wilderness. Griswold went on to paint the judicial process in heroic colors, very flattering to judges and a mystification to the public:
+
+
+
+It is a process requiring great intellectual power, an open and inquiring and resourceful mind, and often courage, especially intellectual courage, and the power to rise above oneself. Even more than intellectual acumen, it requires intellectual detachment and disinterestedness, rare qualities approached only through constant awareness of their elusiveness, and constant striving to attain them.68
+
+
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+These attributes are desirable, but they are not required; they are not part of the job description. Few Justices have had “great intellectual power,” nor is such power usually conjoined with “an open and inquiring” mind or “the power to rise above oneself.” Justices Holmes, Brandeis, and Jackson are uncontroversial examples of great Justices, but would anyone think them intellectually detached and disinterested (Holmes was emotionally detached) or “striving to attain” these qualities?
+
+Like Griswold, Hart would not admit the limitedness of the average Justice, and so the mediocrity (as it seemed to him) of Supreme Court opinions cried out for an explanation. The one he offered was that the Justices were hearing too many cases and so lacked sufficient time to discuss them with each other and thus allow the power of collective thinking to save them from making mistakes. He did not mention the lack of deliberation in English courts (see chapter 5), though in the 1950s, when he was writing, the English judiciary was admired by American legal thinkers despite its disavowal of collective thinking.
+
+Hart’s effort to be precise about the amount of time the Justices had in which to deliberate miscarried because of his ignorance (and again, I do not know whether this was actual or feigned) of their working conditions and, more important, of the nature of judicial decision making. He seems to have thought that the typical case the Supreme Court agreed to decide was a complex puzzle that would take even very bright people a long time to unravel. Most cases, certainly most constitutional cases, are not of that character. Indeterminacy, a common feature of cases that get to the top of the judicial pyramid, is not the same thing as complexity. It is the difference between politics and science.
+
+As for those cases that are complex, the data that might enable them to be solved as puzzles are usually unobtainable, or at least are not obtained, and so those cases cannot be decided by methods analogous to solving puzzles or designing operating systems either. Roper v. Simmons, for example, had an “obtainable but not obtained” dimension—empirical data that the Justices were unable (or perhaps just unwilling) to process, showing that they are not about to become the expert administrators of Hart’s vision of adjudication. They ignored a statistical literature on the deterrent effect of capital punishment69 that bolsters the commonsense proposition that there is indeed an incremental such effect. This might have given the Justices pause by making the interests of the murder victims more perspicuous. But the Justices are not comfortable enough with statistical theory and methodology to want to hang their hats on statistical studies that fall short of being conclusive, as the studies of the deterrent effect of capital punishment do.70 They fear being taken in.
+
+Maybe they are right to be diffident about relying on statistical studies. But if so they should be consistently diffident. The Justices in the Roper majority should not have relied on a psychological literature that they mistakenly believed showed that persons under 18 are incapable of mature moral reflection.71 One does not have to be a social scientist to know that such an inference cannot be correct. Chronological age does not coincide with mental or emotional maturity; age 18 is not an inflection point at which teenagers suddenly acquire an adult capacity for moral behavior. The studies on which the Court relied acknowledge that their findings that 16- or 17-year-olds are less likely to make mature judgments than 18-year-olds are statistical rather than individual72 and do not support a categorical exclusion of 16- and 17-year-olds from the ranks of the mature. At most the studies demonstrate a need for careful inquiry into the maturity of a young person charged with capital murder. The Court thought juries incapable of such an inquiry—but if so, they are incapable of ever deciding when a murderer is bad enough to be executed or good enough to be spared.
+
+The principal study cited by the Court acknowledges that “the definitive developmental research has not yet been conducted, [and] until we have better and more conclusive data, it would be prudent to err on the side of caution.”73 Caution might well be thought to argue not, as the authors of the quoted study believe, for outlawing the death penalty for 16- and 17-year-olds but rather for leaving the judgment to the states, though for those Justices who find capital punishment a disturbing practice, caution may mean forbidding it whenever there is the slightest doubt about its propriety. Unless the Justices are naïve about social science (which they may be, however), these studies could not have figured in the decision, as distinct from the advocacy of the decision in the Court’s opinion.
+
+The picture of Supreme Court Justices poring over esoteric scholarly articles to come to a decision is an unrealistic one. The expert-administrator model of Supreme Court adjudication misconceives how judges reach decisions. Experienced appellate judges read the briefs in a case, discuss the case with their law clerks, listen to oral argument, perhaps dip into the record here and there, maybe do some secondary reading, briefly discuss the case at conference with the other judges, and from the information and insights gleaned from these sources, filtered through preconceptions based on experience, temperament, and other personal factors, make up their minds. It is not a protracted process unless the judge has difficulty making up his mind, which is a psychological trait rather than an index of conscientiousness.
+
+So it is unlikely that the Justices would do a better job if they decided fewer cases and thus had more time to spend on each one. But we need not rest on conjecture. We have the results of a natural experiment. The Justices now do decide fewer cases and thus have more time to spend discussing each one—should they desire to. Although the number of paid petitions for certiorari has doubled since 1958 (the unpaid—in forma pauperis—petitions are mostly frivolous and easily disposed of), the number of law clerks has also doubled and an ingenious “pool” system of processing petitions for certiorari has been adopted that enables the Justices to delegate most of the screening function to the clerks. (Instead of each clerk’s writing a cert. memo for his Justice, one clerk writes a cert. memo for all eight Justices in the pool.74) Most important, the Court has been deciding fewer and fewer cases and is now issuing opinions in only about 70 cases a year, compared to 129 in 1958. In the 2006 term, it decided only 68 cases.
+
+Not that number of decisions is the sole measure of a court’s workload. The cases could be getting tougher, and this might be reflected in longer opinions or in more separate opinions. But the decline in the number of decisions by the Supreme Court has not been offset by an increase in separate (that is, dissenting and concurring) opinions. The total number of opinions, not just of decisions, has declined. Nor have these declines been offset by a significant increase in opinion length (since the early 1970s). And so the total word output of the Justices has declined along with the number of opinions.75
+
+Why the Supreme Court’s caseload and output have declined is a mystery. (The fact that the decline has coincided with an increase in the quality and number of the Justices’ law clerks is a disturbing commentary on the effect of bureaucratization on productivity.) The Court’s mandatory jurisdiction has, it is true, been curtailed by Congress; the Court used to hear appeals that it would not have heard had they been petitions for certiorari, which is why that jurisdiction was curtailed. Yet that has not been a major factor in the caseload decline,76 because prior to Congress’s action the Court had “taken it upon itself to rewrite the statute and to treat most appeals as the equivalent of petitions for certiorari, subject only to discretionary review.”77 Anyway, the Court might have taken up any slack created by the curtailment of its mandatory jurisdiction by accepting more cases for review, important cases that it had not had time for when it was burdened by the mandatory jurisdiction.
+
+It did not do so. One reason may be that the lower courts—perhaps because of the Court’s penchant for laying down rules explicitly designed to guide them, or perhaps because of a growing professionalism in those courts as a result of more numerous and experienced clerks, the rise of computerized research, and more careful screening of candidates for lower-court judgeships—stray less frequently from the Court’s directives. And here we may find the silver lining in the increased senatorial scrutiny that candidates for appointment to the federal courts of appeals have been required to undergo ever since it became clear in the early 1980s that President Reagan was using these appointments to try to change the ideological profile of the courts of appeals. The scrutiny is largely political in motivation and character and as a result tends to exclude candidates who are in either tail of the political distribution. So the courts of appeals are more centrist than they used to be, and the more centrist they are, the fewer intercircuit conflicts they produce for the Supreme Court to resolve and the fewer wild departures for the Court to rein in.
+
+The decline in the Court’s output provides a test of Hart’s workload hypothesis—and does not support it. There is no evidence that the steep decline in the Justices’ workload since the 1980s has led to better decisions. The decisions may be better, either because of an increase in the average quality of the Justices or the increase in the number and quality of their law clerks—the opinions are on average more polished, more “professional” in appearance, than in days of yore—but not because the Justices have been conferring more. By all reports they have been conferring less because Chief Justice Rehnquist ran a crisper conference than his predecessor, Warren Burger. (Chief Justice Roberts is reported to be less impatient than Rehnquist was.) There are diminishing returns from effort. Probably even in Hart’s time the point had been reached at which further judicial effort per case would not have yielded commensurate benefits.
+
+Hart’s acolytes might reply that all he meant was that if the Justices deliberated more they would produce better opinions, not that they would deliberate more if they had the time. But that is not the thrust of his Foreword. The thrust is that if only the Justices would stop granting certiorari in trivial cases—such as cases under the Federal Employers’ Liability Act in which the only question was whether the plaintiff had enough evidence of the defendant’s negligence to get to a jury—they would deliberate more. What was wanting, he seems to have thought, was not the will but the time.
+
+That was wrong. But Hart’s more interesting error was to think that dramatic improvements in the quality of judicial decision making would ensue if only the Justices talked out their differences at greater length. Hart was confused not only about the character of constitutional disputes but also about the nature of reasoning. This is apparent in the famous purple passage in which he said that
+
+
+
+the Court is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.78
+
+
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+In everyday usage, the “voice of reason” means a reasonable response to a situation—calm, impartial, prudent, practical—rather than a response driven by a commitment to “principles.” Drawing from a more technical vocabulary, we might speak of problem solving—that is, of reasoning from common premises—as “instrumental reason.” Hart seems to have thought that “reason” in either of these senses (which he may not have distinguished in his own mind) would bring about convergence on constitutional doctrine if only the Justices would take the time to argue out their differences.
+
+Hart’s is a seminar model of the appellate process that comes naturally to academics. It is no accident that his claim that the Justices were not spending enough time in discussion echoed similar complaints by Justice Frankfurter and before him by Justice Brandeis.79 All three were brilliant, articulate intellectuals; two were distinguished professors. It is a source of frustration to brilliant people to be unable to persuade their intellectual inferiors, and a natural reaction is to seek more time to persuade, knowing that they can out-argue their duller colleagues. What they may not realize, being intellectuals and therefore exaggerating the power of reasoned argument, is that such argument is ineffectual when the arguers do not share common premises and—what turns out to be related—that people do not surrender their deep-seated beliefs merely because they cannot match wits with the scoffers. (Robert Bork’s intellectual distinction did not disarm his opponents.) In such situations the principal effect of arguing is, as Thurman Arnold noted and the psychological literature on group behavior confirms,80 to drive the antagonists farther apart—or at least to cause them to dig in their heels.
+
+When the premises for deciding a matter are shared, instrumental reason can generate conclusions that will convince all participants and observers; and collective deliberation may help in enabling conclusions to be derived from common premises. The process is kept honest by empirical verification: the airplane of novel design either flies or does not fly. But in most constitutional disputes, the disputants are not arguing from common premises. One thinks public safety more important than the rights of people accused of crimes; the other thinks the opposite. One views the actions of the police through the lens of a potential victim of a crime, the other through the lens of a person wrongfully accused. One worries about subtle forms of sexual harassment; the other (invariably male) worries about being falsely accused of harassment. One considers affirmative action naked discrimination; the other considers it social justice and a political necessity. One considers the banishment of religion from public life a sacrilege and a moral disgrace; another fears that religion will penetrate and subvert government, turning the United States into a theocracy unless the government has no truck whatsoever with religion; a third fears that entangling religion with government, however slightly, hurts religion. One views abortion from the standpoint of the hapless fetus, the other from the standpoint of a woman forbidden to terminate an unwanted pregnancy. One values the states as laboratories for social experimentation; the other regards state government as provincial and local governments as little better than village tyrannies. One holds Thayer’s view of judicial review; the other holds Justice Brennan’s. The Justices either overlook the social scientific studies that might narrow some of these gaps or, as we saw in Roper, use them tendentiously.
+
+The attitude of Supreme Court Justices toward deliberation is illustrated by Chief Justice Rehnquist’s decision, when he fell seriously ill in the fall of 2004, to participate until he got better only in the decision of cases in which his would be the deciding vote. This bespeaks a voting model, not a deliberative model, of Supreme Court adjudication. In a deliberative model, the participation of all members of the Court in every case is important not only because the Justices are assumed in that model to be open to persuasion but also because each may be able to contribute to making the opinion in even a unanimous decision the best that it can be. In a voting model, participation is unimportant if one’s vote is not going to be decisive.
+
+Rehnquist was behaving in character. He had written illuminatingly about the nature of the deliberative process in the Supreme Court—so different from what Hart had imagined (or perhaps pretended to imagine) it to be:
+
+
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+When I first went on the Court, I was both surprised and disappointed at how little interplay there was between the various justices during the process of conferring on a case. Each would state his views, and a junior justice could express agreement or disagreement with views expressed by a justice senior to him earlier in the discussion, but the converse did not apply; a junior justice’s views were seldom commented upon, because votes had been already cast up the line. Probably most junior justices before me must have felt as I did, that they had some very significant contributions to make, and were disappointed that they hardly ever seemed to influence anyone because people didn’t change their votes in response to their, the junior justices’, contrary views. I felt then it would be desirable to have more of a round-table discussion of the matter after each of us had expressed our ideas. Having now sat in conferences for nearly three decades, and having risen from ninth to first in seniority, I realize—with newfound clarity—that my idea as a junior justice, while fine in the abstract, probably would not have contributed much in practice, and at any rate was doomed by the seniority system to which the senior justices naturally adhere.
+
+
+
+. . . If there were a real prospect that extended discussion would bring about crucial changes in position on the part of one or more members of the Court, that would be a strong argument for having that sort of discussion even with its attendant consumption of time. But my years on the Court have convinced me that the true purpose of the conference discussion of argued cases is not to persuade one’s colleagues through impassioned advocacy to alter their views, but instead, by hearing each justice express his own views, to determine therefrom the view of the majority of the Court. This is not to say that minds are never changed in conference; they certainly are. But it is very much the exception and not the rule, and if one gives some thought to the matter, this should come as no surprise.81
+
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+What he was describing is perilously close to the traditional English model of judicial decision making without deliberation.
+
+For all the deficiencies of his Foreword, Henry Hart was right that the Justices’ institutional “surround” might constrain (rather than, as I have been emphasizing, unconstrain) their judicial performance. Even if the Supreme Court is really just a legislature in most of its constitutional cases, the method of selecting Justices, the terms and conditions of their employment, the resulting qualities and attitudes of the Justices, and the methods they use in legislating differ from the corresponding methods and circumstances of legislators. The differences may be so great that the product, even if legislative in a sense, so differs from the characteristic product of the official legislatures—is so much more disciplined, impersonal, reasoned, nonpartisan—as to be “lawlike” in the same sense that the common law, although also legislative rather than interpretive, is lawlike. Maybe when all the characteristics of the Court as an institution are considered—especially the fact that the Justices try to justify their decisions in reasoned opinions, which, even when they are advocacy products largely drafted by law clerks wet behind the ears, reflect a degree of deliberation and a commitment to minimal coherence that are not demanded of legislative bodies—the correct conclusion is that the Justices’ legislative discretion is really rather narrowly channeled. Maybe Hart’s mistake was to focus too narrowly on the effect of caseload on judicial behavior.
+
+The findings of the attitudinalists, along with other evidence examined in this book, suggest otherwise, of course. Yet those findings should not be allowed to obscure a major difference between Supreme Court Justices and (other) legislators, a difference stemming from the fact that legislators are elected for short, fixed terms and Justices are appointed for life, as well as from the difference in role expectations between politicians and judges. As a consequence of these differences, Justices are less partisan than elected officials—that is, less emotionally and intellectually tied to a particular political party. Democratic and Republican Justices are invariably less Democratic and Republican than their counterparts in elected officialdom, often to the chagrin of the appointing President. Appointment to a life-tenured position liberates federal judges from partisan commitments.
+
+Nonpartisanship, unlike ideological neutrality, is an attainable ideal; indeed, it is the nearly automatic consequence of the Justices’ not having to stand for election or kowtow to politicians, or indeed to anyone else. But “nonpartisan” is not the same as “nonpolitical.” A person can be the former without being the latter—can even be the latter without being the former, for there are people whose identification with a political party is unrelated to a political preference, being a matter of family tradition or personal friendships rather than of political conviction. Still, with political parties in a two-party system being coalitions and as a result lacking intellectual coherence, Supreme Court Justices have motive and opportunity to forge for themselves a coherent, party-independent political identity. They are still political, but they are more detached and thoughtful than the “official” politicians. So maybe—this is the implicit view of many constitutional scholars, and of some Justices as well—Justices are better legislators than the members of Congress and state legislatures and would be better still if the institutional setting could be made more conducive to deliberation. (There is an echo of Henry Hart in this suggestion.)
+
+The suggestion is difficult to defend convincingly, however, because of differences between judges and the official legislators that undercut the claim of judges’ legislative superiority. Except for Justice Thomas, the current Justices of the Supreme Court grew up in privileged circumstances and do not rub shoulders with hoi polloi. Sheltered, cosseted members of the upper middle class, and, most of them, quite wealthy, the Justices are less representative of the American public than elected officials are. They also lack ready access to much of the information that elected officials obtain routinely in the course of their work. They have much smaller, less specialized staffs, and as lawyers they have professional biases and prejudices that can distort their legislative judgments. Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court Justices are at risk of acquiring an exaggerated opinion of their ability and character. In a democratic society of great size and complexity, it is difficult to justify giving a committee of lawyer aristocrats the power not just to find or apply the law and make up enough law to fill in the many gaps in the law that is given to them, but also to create out of whole cloth, or out of their guts, large swatches of law that as a practical matter they alone can alter.
+
+A great weakness of the Court as a legislative body is that it does not have its hands on enough of the levers of power to effectuate grand designs. (This could of course be thought its saving grace—that the Court is mischievous rather than prepotent.) The Court was able to eliminate the stigma of officially segregated schools, but not segregation itself. It could create new procedural rights for criminal defendants—a major project of the Court in the 1960s—but legislatures could and did offset the effect by increasing the severity of criminal sentences. Maybe fewer innocent people were convicted, but those who were served longer sentences;82 the total misery of the wrongfully convicted was not lessened. The Court altered the structure of state legislatures by requiring that both the lower and the upper houses of every state legislature be apportioned by population, but possibly without effect on the content of state legislation.83 The Court created a right to abortion, but in states where abortion is unpopular a variety of legal and extralegal pressures continue, more than 30 years later, to deny many women access to abortion.84
+
+At the opposite extreme from Hart’s technocratic conception of the Supreme Court is the idea of the Court as a moral vanguard. Evaluating this idea might not seem to belong in a discussion of alternatives to the conception of the Court as a political court; the idea might seem the quintessence of a political approach. I am inclined to agree, but the proponents do not think so. Believers in natural law as a source of or limitation on positive law do not think they are politicizing law. No more did Alexander Bickel, in his influential Foreword published two years after Hart’s, in which he cast the Court in the role of a secular Moses that would lead the American people out of their moral wilderness.85
+
+Like Hart, Bickel was much taken with “principles.” “Principles” in the sense in which both of them, following Herbert Wechsler,86 used the term echoes the Aristotelian origins of the idea of the rule of law and some of the modern derivatives of the idea, such as the notion of equal protection of the laws and the related notion that legislation should be general and prospective. One way to try to prevent judges from picking and choosing among litigants on inappropriate grounds is to require that legal rules be general in their application rather than pinpointed on specific individuals or groups, just as requiring that legislation be prospective makes it difficult for a legislature to target its enemies. This does not tell us what the content of the rules should be. But reading Bickel’s Foreword one realizes that he had definite ideas about where the public policy of the United States should be moving and that these ideas were his “principles.” They were political ideas, and Bickel realized that the Supreme Court had to move carefully in imposing them on the nation because other institutions would fight back. For Bickel and his judicial avatar, Guido Calabresi, the Supreme Court is not (quite) political (it is “principled”), but it is in a tense political competition with the elective institutions.87
+
+There is an air of condescension in Bickel’s Foreword: the Court has an “educational function” that it performs by “engag[ing] in a Socratic dialogue with the other institutions and with society as a whole concerning the necessity for this or that measure, for this or that compromise.”88 It is apparent in this account who is Socrates and who are Socrates’ stooges; who is the law professor and who are the law students. As in Hart’s Foreword there are many admiring references to Justice Frankfurter, the only professor on the Supreme Court at the time. (Bickel had clerked for Frankfurter.)
+
+The sense of substantive direction, what we might call the teleological mode, is missing from the school of Hart—Hart the Progressive, the technocrat (it is never very clear what substantive principles he embraced). Bickel’s project is clothed in references to principles, but the clothing is diaphanous. He wanted to make the United States more civilized by his lights but realized that the Court, because of the limits of its power, could achieve such an aim only if it was politically adroit. That would require it to avoid giving “bad” legislation that it did not yet dare condemn the imprimatur of constitutionality (the Court should exercise its discretionary power to refuse to hear the case), which the ignorant laity would treat as an endorsement, and instead to engage legislatures in a coercive “dialogue.”89 (So here is an echo of Hart’s faith in deliberation, but a faint one, because of the one-sidedness of Bickelian dialogue.) Bad state legislation should be invalidated on narrow grounds that give the states the illusion that if they did a better job of articulating the concerns underlying the legislation, or at least expressed their desire for the legislation more forcefully, it might survive.90 But it would be a Bickelian Court’s hope that the legislators would have their eyes opened by the Court’s tutorial, or that efforts at reenactment would founder on the inertial difficulty of enacting legislation.
+
+Bickel’s Foreword discusses at length the Connecticut anti-contraception statute later invalidated in the Griswold decision. He was mindful that nothing in the Constitution or in the Court’s previous decisions seemed to bear on such a statute; family and sex law had long been thought prerogatives of the states. But he did not want the Court to affirm the constitutionality of—and thus give a boost to—such a bad statute, and so he recommended that the Court invalidate it on the narrow ground that because it was not being enforced it should be deemed abandoned.91 Such a ruling would allow the state to reenact it. But because it is much more difficult to enact a statute than to leave it unenforced (or weakly enforced, as in the case of the Connecticut statute) on the books, probably it would not be reenacted and so Bickel’s goal would be achieved without a confrontation with the state over the power to regulate contraception.
+
+The moral vanguard school of constitutional theory exemplified by Bickel (who actually referred approvingly to “the Court’s function of defining the moral goals of government”92), although it uses all the tricks of the lawyerly trade to work its will, implicitly conceives of the Supreme Court as a freewheeling legislative body, albeit a more enlightened one than “real” legislatures; conceives of it in fact as a legislature with a bully pulpit from which, not being tongue-tied by partisan commitments, it can preach in clarion tones to the multitude. But being more enlightened it has to bring the elected officials and public opinion along by subtle maneuvers:
+
+
+
+The resources of rhetoric and the techniques of avoidance enable the Court to exert immense influence. It can explain the principle that is in play and praise it; it can guard its integrity. The Court can require the countervailing necessity to be affirmed by a responsible political decision, squarely faced and made with awareness of the principle on which it impinges. The Court can even, possibly, . . . require a second decision.93
+
+
+
+The Court is a teacher in a class of slow learners consisting of the people and their elected representatives.
+
+We should mark the family resemblance between Bickel’s moral vanguardism, despite its cloak of principle, and the active side of Holmes’s “can’t helps” or “puke” test. Both are delaying games in the sense that if public opinion adamantly favors some policy that the Justices cannot stomach, eventually they will have to give way. The moral vanguard has to stop its march if there is no one following it. But there is an important difference between them. Bickel thought the Justices could educate the masses to fall in line with the Justices’ superior insights. Holmes harbored no such hopes, which he would have described as illusions, because he was skeptical of the force of moral reasoning.
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+Today the leading moral vanguardist on the Supreme Court is Justice Kennedy. But he ignores Bickel’s warning against Justices’ tipping their hands. Kennedy is a kind of judicial Ronald Dworkin, who also will have no truck with disguises. The slogan of both could be—borrowing from the Army’s former recruiting slogan “Be All That You Can Be”—“Make the Constitution All That It Can Be.” A newer Army slogan, “An Army of One,” could describe Justice Kennedy’s Court, given his significance as the sole swing Justice now that O’Connor has retired. In all 24 of the Court’s 5–4 decisions in the 2006 term, Kennedy was in the majority.
+
+Justice Kennedy’s opinions in Lawrence v. Texas94 (the homosexual sodomy case) and Roper v. Simmons make only limited efforts to ground decision in conventional legal materials. They could not do more, operating with nondirective constitutional provisions and in the teeth of adverse precedent. They are appeals to moral principles that a great many Americans either disagree with or think inapplicable to homosexuals and juvenile murderers. The approach is consistent, however, with the judicial philosophy that Justice Kennedy expressed in the interview from which I quoted in chapter 9, when he said that “all of us have an instinctive judgment that we make . . . You make these quick judgments . . . Judges do the same thing . . . But after you make a judgment, you then . . . have to see if that . . . accords with your own sense of ethics and morality. And . . . [you have to understand] that you have the opportunity to shape the destiny of this country. The framers wanted you to shape the destiny of the country. They didn’t want to frame it for you.” This is the most powerful judge in America speaking, and, if we may judge from his decisions, meaning what he says—that the framers of the Constitution wanted Anthony Kennedy to shape the destiny of the country in accordance with his own sense of ethics and morality, though it strikes many as quirky.95
+
+There is a messianic quality to Kennedy that sorts ill with the conventional conception of a judge. Consider his reliance in both Lawrence and Roper on decisions of foreign courts. I discuss the pros and cons of such reliance in chapter 12; its imprudence is shown by the surprising antipathy it has aroused96—surprising because the citations in judicial opinions rarely receive attention in the lay press. But more interesting is the relation of citing foreign decisions to moral vanguardism. It seems that Kennedy is a natural lawyer—a believer in the existence of universal moral principles (the source of his “own sense of ethics and morality”) that inform—and constrain—positive law. If the principles are indeed universal, they might be expected to leave traces in the decisions of foreign courts.
+
+Strip Roper v. Simmons of its fig leaves—the psychological literature that it misused, the global consensus to which it pointed, the national consensus that it concocted by treating states that have abolished capital punishment as having decided that juveniles have a special claim not to be executed (the equivalent of saying that these states had decided that octogenarians deserve a special immunity from capital punishment)—and you reveal a nakedly political decision. A decision taking sides on a moral issue that divides the public along approximately party lines and cannot be resolved by expert analysis, let alone by conventional legal reasoning, is a political decision.
+
+A court can as I said be political without being pragmatic, but it can also be political and pragmatic. Zelman v. Simmons-Harris97 upheld the constitutionality of funneling public monies to private schools by giving parents vouchers that they can use to pay for their children’s tuition. Most private schools are Catholic parochial schools. Although the decision was inescapably political—a taking of sides on an issue that divides the Democratic and Republican parties—it was also pragmatic. There is a great deal of dissatisfaction with American public education. A voucher system would encourage competition in public education, and competition in turn could be expected to improve education—either directly by driving the worst school administrations from the market or indirectly by stimulating new approaches to education, or both. But these benefits could not be realized if voucher systems were declared unconstitutional. Such a declaration would strangle a worthwhile social experiment in its cradle.
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+Opponents consider vouchers a form of public subsidy to the Catholic Church. Should that turn out to be their effect (as is unlikely, since they stimulate the creation of new secular private schools by providing parents with the wherewithal to bypass public schools in favor of secular as well as religious private schools), there will be time enough to invalidate them. Because Supreme Court Justices are unlikely to develop a taste for social science, social experiments are necessary to generate the data needed for intelligent constitutional rule making.98 Granted, decisions create reliance and even bring into existence interest groups that will defend the decisions—busing as a remedy for school segregation attracted the enthusiastic support of companies that manufacture or lease school buses. So if vouchers spread like wildfire, the Court might have difficulty putting out the flames.
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+Five years after Zelman there is no evidence either that school voucher systems are multiplying rapidly or, as the dissenting Justices worried, that they are fomenting religious strife. Yet if someone were to challenge the arguments for the voucher decision—whether on the ground that even indirect financial assistance to parochial schools is an “establishment” of religion according to the best understanding of the Court’s previous decisions, or that a voucher system will fatally weaken public education and by doing so undermine a variety of civic values—there would be no killer riposte. Although the impact of voucher systems on public schools, and on educational performance generally, is an empirical issue, there was no way in which the Court could have determined its validity before the systems went into effect.
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+With Zelman compare the decision in the Seattle School District case striking down public school affirmative action programs.99 Activist and unpragmatic, the decision is in conflict with the spirit of Zelman. Rather than encouraging experimentation in our troubled education system, it throws a monkey wrench into the efforts of public schools to cope with the vexing issue of race. The plurality opinion in Seattle School District pretends most unpragmatically that invalidation of the affirmative action programs was compelled by the sanctified precedent of Brown v. Board of Education, thus excusing the Justices from having to consider the practical consequences of their decision. While reading Brown broadly, the Justices read the Court’s decisions that actually involved affirmative action, as Brown of course did not, narrowly. The dissenters—the four liberal Justices—complained loudly. But they behave like the conservative Justices when the shoe is on the other foot. Zelman and Seattle School District are equally grist for the attitudinal mill. Both involve the issue of judicial intervention in the management of schools. In Zelman the conservative Justices, who favor private education and religion and dislike affirmative action, voted against judicial intervention and the liberal Justices voted for it. In Seattle School District the liberal Justices, who favor public education and affirmative action and do not wear religion on their sleeves, voted against judicial intervention and the conservative Justices voted for it.
+
+Zelman was a good decision from a pragmatic standpoint because it allowed a social experiment to be conducted, Seattle School District a bad one because it interrupted a social experiment on legalist grounds without considering the likely consequences of its intervention.100 In between is Kelo v. City of New London, which upheld the condemnation of private property for use in an urban development project as a “public use,” and thus within the state’s eminent domain power, even though the condemned land was to be transferred to the private developers of the project.101 The only reason the Court gave for thinking that the project might benefit the public rather than just the private developers and (new) owners was that “the area [of the redevelopment project, a waterfront area in downtown New London, Connecticut] was sufficiently distressed to justify a program of economic rejuvenation.”102 This question-begging justification (“distressed”) opened the way to the parade of horribles in Justice O’Connor’s dissent, in which we read that “the specter of condemnation hangs over all property.”103 If “economic rejuvenation” is a public use, what is to prevent a city from condemning the homes of lower-middle-class families and giving them free of charge to multimillionaires, provided it can show that the new owners would be likely to pay enough for various local goods and services, and in property and other local taxes, to offset the expense of compensating the owners of the condemned properties at market value?
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+The majority and dissenting opinions spar over the original meaning of the term “public use” and over the correct interpretation of the previous cases in which the condemnation of property for the purpose of transferring it to a private entity had been challenged (and in this back-and-forth the majority has the better of the argument). They do not ask practical questions: What is the reason for eminent domain? Does the New London development plan comport with that reason? What have been the economic and social consequences of such development projects?
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+The power of eminent domain seems at first glance a strikingly arbitrary method of taxation. When the power is exercised, the condemnor is required to pay only the market value of the condemned property. Ordinarily an owner’s subjective valuation will exceed the property’s market value because the property fits his needs or tastes particularly well or because relocation would be costly. Otherwise he probably would have sold it. A private purchaser who wanted the property would therefore have to pay a price sufficiently higher than the market value to compensate the owner for the loss of these idiosyncratic, property-specific values. Awareness of such values explains why courts are more likely to deem inadequate a damages remedy for breach of contract, and thus to order specific performance, when the contract is for the sale of land than when it is for the sale of a fungible type of property. The eminent domain power allows the government to obtain property by paying just its market value and by doing so to extinguish idiosyncratic values; in effect they are taxed away to help pay for the acquisition. If the market value of a condemned property is $100,000 and its total value (including idiosyncratic value) is $125,000, condemnation in effect enables the government to pay for the property with $100,000 out of its own coffers and $25,000 out of the owner’s pocket.
+
+The only justification for this form of taxation is the existence of holdout problems, problems best illustrated when the power of eminent domain is employed, whether on behalf of government, in the case of highways, or of private firms, such as railroads, telephone companies, and pipeline companies, that provide point-to-point services. The ability of a railroad, for example, to operate between two points depends on its acquiring an easement from every one of the intervening landowners, and knowing this each landowner will hold out for a very high price. Eminent domain in these situations is an antimonopoly device.104
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+Holdout problems are not limited to right-of-way situations. They can arise whenever someone wants to assemble a large tract of land that is divided into many individually owned parcels. So a pragmatist would want to ask whether that was the situation in New London; if not, it would be a good case for placing a limit on the concept of public use. It is hard to tell from the opinions. The city wanted to redevelop a 90-acre tract adjoining a site on which Pfizer had decided to build a large research facility. The plaintiffs owned 15 lots in parts of the tract that were either to be developed for office space, in the hope that Pfizer’s proximity would attract other businesses, or to be used for parking, for retail stores catering to visitors, for facilities ancillary to a nearby marina, or for some combination of these uses. Conceivably, leaving the plaintiffs’ 15 homes in place, scattered throughout these areas and thus giving rise to what New London’s brief colorfully termed the “spotted leopard” problem, would make it difficult to develop the areas for their intended uses; imagine a parking lot dotted with houses. If so, the plaintiffs had holdout power that may have justified the use of eminent domain to obtain their property.
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+The Court mentions the holdout issue only in passing. The opinions do not even indicate the size of either the plaintiffs’ lots or the 2 parcels (out of the 7 that constituted the 90-acre tract that was condemned) that contained those lots, although from the briefs one learns that one of the parcels was 2.4 acres in size and the plaintiffs’ lots occupied 0.76 acres in it, which was almost one-third of the total area and so might indeed have presented a holdout problem. But as I will note shortly and the Court briefly acknowledged,105 it is uncertain whether private developers actually need the aid of eminent domain to solve holdout problems.
+
+The majority opinion does not acknowledge that whether a change in land use is a good thing is not the same question as whether eminent domain is a proper method of bringing about the change. If a property would be worth more in a different use and there is no holdout obstacle to transacting with the existing owner, the market will take care of shifting the property to its more valuable use; there is no need for the government to assist.
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+The minimal attention given to the issue of holdouts (even though it was discussed at length in the briefs and mentioned at the oral argument106) supports Justice O’Connor’s concern that the decision signifies the abandonment of any limitation on “public use” except that the condemning authority be acting in good faith. But her argument would have been more convincing had she given some examples of actual, as distinct from imagined, abuses of the eminent domain power. She gave none but merely—in typical lawyer fashion—cited a few cases, a brief, and a single study that she made no attempt to evaluate despite its being an advocacy document of doubtful objectivity.107 If the inference from this meager documentation is that abuse of the eminent domain power is infrequent—an inference supported by the sparseness of the references to eminent domain in the scholarship on urban redevelopment108—then it is hard to work up indignation about municipalities’ being allowed to continue exercising the power. Placing limits on that exercise can be reserved for a case in which it is plain that the power was abused.
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+A point O’Connor might have made but did not is that private developers who want to assemble a large contiguous parcel of land seem generally able to do so by employing “straw man” purchasers.109 That it is difficult for government to operate with the requisite secrecy is a bad argument for allowing government to use eminent domain on behalf of private developers; it should let the developers fend for themselves.
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+A political interpretation of the Kelo decision is that liberal Justices give the benefit of the doubt to the government when it opposes property rights, while eminent domain is a bête noire of conservatives because it overrides those rights. The four liberal Justices, joined by Justice Kennedy, made up the majority, though Kennedy, while joining Justice Stevens’s opinion, wrote a concurring opinion indicating reservations about eminent domain that do not appear in Stevens’s opinion. The three most conservative Justices—Rehnquist, Scalia, and Thomas—dissented, joined by O’Connor, whose opinion demonstrates her solicitude for property rights.
+
+An alternative explanation for the result in the case is simply that the Court’s majority was prudently reluctant to become involved in the details of urban redevelopment. A flat rule against a taking in which the land that is taken ends up in the hands of private companies would be unsound and was not urged by the dissenters. An amicus curiae brief on behalf of the American Farm Bureau Federation gave a number of examples of what appear to be foolish, wasteful, and exploitive redevelopment plans. It is unclear how representative the examples are, yet it would not be surprising to discover that most redevelopment plans are unholy collusions between the real estate industry and local politicians. But if so, there is little the Supreme Court can do. The more limitations the Court placed on the private development of condemned land, the more active the government itself would become in development. Had the City of New London built office space, parking lots, and the like on land that it had condemned, a challenge based on the “public use” limitation would have been unlikely to succeed—unless the Court confined “public use” to holdout situations and was prepared to try to determine, case by case, whether a genuine holdout situation existed. But this is a thicket the Court is not minded to enter, as evidenced by Eldred v. Ashcroft,110 which upheld the constitutionality of the Sonny Bono Copyright Term Extension Act against the argument that extending the copyright term from life plus 50 years to life plus 70 years was inconsistent with the purpose of the Constitution’s empowering Congress to authorize copyrights only for “limited Times.” It was inconsistent, but the courts do not have the intellectual tools for determining how long copyright protection should last.
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+Another complication unremarked by the Court in Kelo is that tightening up the public use requirement, and thus curtailing the government’s power to use eminent domain, would increase the expense to the government of acquiring property. The higher expense, except insofar as it deterred acquisitions, would beget higher taxes, which might have as arbitrary an incidence as the taxation of idiosyncratic land values through exercise of the eminent domain power. Along with the possibility that constricting the concept of public use would induce the government to develop property itself, the unpredictable tax effects of curtailing the eminent domain power illustrate the difficulty the Supreme Court has in bringing about durable social change when it does not control the full array of public policy instruments. The Court cannot regulate the taxing power or prevent the government from engaging in real estate development.
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+Paradoxically, the strong adverse public and legislative reactions to the Kelo decision111 are evidence of its pragmatic soundness. When the Court declines to invalidate an unpopular government power, it tosses the issue back into the democratic arena. The opponents of a broad interpretation of “public use” now know that the Court will not give them the victory they seek. They will have to roll up their sleeves and fight the battle in Congress and the state legislatures—where they may well prevail. Property owners and the advocates of property rights are not a helpless, marginalized minority. They have plenty of political muscle, which they are free to use, since there is no constitutional impediment to the government’s declining to exercise the full range of powers that the Constitution, as interpreted by the Supreme Court, allows it. The responses of Congress and the states will constitute a series of social experiments from which much will be learned about the proper limits on eminent domain.
+
+So the result in Kelo may be pragmatically defensible, but the Court articulated no pragmatic defense. This is typical, and is the obverse of the practice of citing foreign decisions as authority. Pragmatic reasons do not sound very lawlike, whereas citing decisions of a judicial body—any judicial body—sounds quintessentially lawlike in a system, which is the U.S. system, of case law. Moreover, to go beyond the simplest type of pragmatic reasoning—such as let’s keep out of this briar patch—would require the Court to develop a taste for empirical inquiry. Like most judges, Supreme Court Justices (abetted by their law clerks, from whom experience has yet to rub off the legalist undercoat applied to them by their law school education) are more comfortable with opinions that remain on the semantic surface of issues, arguing over the meaning of malleable terms such as “public use” or “cruel and unusual punishments” rather than over the consequences of adopting one meaning over another. This has the political value, moreover, of disguising the political character of Supreme Court decision making.
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+Justice Breyer (of whom I shall have more to say in the next chapter) is generally regarded as the most pragmatic member of the current Supreme Court. Yet he dissented in Zelman, joined Clinton v. Jones (though with an uneasy concurrence, sensing trouble ahead), is an enthusiastic citer of foreign decisions (but at least he is fluent in French), and joined Justice Stevens’s majority opinion in Kelo without writing separately to explore the interests at stake. But he redeemed himself by his vote and separate opinion in Van Orden v. Perry,112 one of the two Ten Commandments decisions the Court handed down on the last day of its 2004 term. In the other, McCreary County v. ACLU,113 a five-Justice majority including Breyer invalidated the display of the Ten Commandments in a county courthouse. He switched sides in Van Orden, creating a five-Justice majority to permit a monument inscribed with the Ten Commandments to remain on display on the grounds of the Texas state capitol. The majority agreed only on the result, because Justice Breyer did not join Chief Justice Rehnquist’s opinion. There are passages in that opinion that I imagine struck rather the wrong chord for Breyer, notably the statement that “recognition of the role of God in our Nation’s heritage has also been reflected in our decisions.”114 Whether God has actually played a role in the nation’s history is a theological question, the answer to which depends first on whether there is a God and, if so, whether He intervenes in the life of nations and has some special fondness for the United States. It is odd for the Supreme Court to offer answers to these questions. But perhaps all that the Chief Justice meant by “God” was invocations of God, and all that he meant by “heritage” was the national culture.
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+Rehnquist was on solid ground in enumerating some of the countless invocations of the Deity in American public life, including many approving references to the Ten Commandments. He inferred that “the inclusion of the Ten Commandments monument” in a varied, one might even say (though with no disrespect intended) motley, assemblage of monuments on the Texas state capitol grounds—dedicated to everything from “Heroes of the Alamo” (of course) to Texas cowboys, Texas schoolchildren, volunteer firemen, and Confederate soldiers115—“has a dual significance, partaking of both religion and government.”116
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+The implication is that a secular purpose can redeem a religious display even if the secular purpose is not paramount, and Breyer was unwilling to go that far. Instead he looked into the history of the Ten Commandments monument and discovered that it had been donated to Texas by the Fraternal Order of Eagles, a primarily secular organization that “sought to highlight the Commandments’ role in shaping civic morality as part of that organization’s efforts to combat juvenile delinquency.”117 From this and other facts, including that it had taken 40 years for anyone to complain about the state’s sponsoring a religious display, Breyer concluded that the monument’s predominant purpose was to convey a secular message about the historical ideals of Texans.
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+The reference to the many years without a lawsuit seems at first encounter off-key—it fairly invites the American Civil Liberties Union to sue the minute it learns of any new display of the Ten Commandments on public property. But as Breyer explained, the dearth of complaints “helps us understand that as a practical matter of degree this display is unlikely to prove divisive,” whereas “to reach a contrary conclusion . . . might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”118 In other words, if, as the Justices who dissented in Van Orden appear to believe, the Constitution forbids any and all “governmental displays of sacred religious texts,”119 a decision so holding would trigger an ACLU-led campaign to purge the entire public space of the United States of displays of the Ten Commandments, ubiquitous as they are. It is hard to imagine not only a more divisive but also a more doctrinaire and even absurd project, faintly echoing as it would the campaigns of Mexico, Republican Spain, and the Soviet Union in the 1930s against the churches of those countries, not to mention the destruction of religious images by the Iconoclasts of eighth-century Byzantium.
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+What the dissenters in Van Orden missed is the dual religio-secular character of the Ten Commandments, which resembles the dual religio-secular character of Christmas and renders the invocation of the Ten Commandments innocuous in most settings—though perhaps not, as the plurality opinion in Van Orden suggests, in all. Christmas is a religious holiday for believing Christians, but it is also a national holiday, and a secular holiday for children, for shoppers and retailers, and even for most atheists (they are shoppers, and some of them are even children). So salient is the secular dimension that it requires rather a special effort to remind people of the religious significance of Christmas. The Ten Commandments are similarly multifaceted. They are a set of religious commands for believing Christians and Jews, a set of moral imperatives (thou shalt not kill, thou shalt not bear false witness, etc.) as binding on the nonbeliever as on the believer, a literary rendition of moral duties, a Hollywood spectacular,120 a milestone of Western intellectual history, and, to the cynical, a set of clichés and anachronisms (such as do not covet thy neighbor’s cattle) and pathetic overstatements of duty. Most of the commandments are not explicitly religious, and those that are get the least attention—who but the Taliban has been worrying lately about graven images, or even about taking the Lord’s name in vain? The spirit of Justice Souter’s dissent in Van Orden puts one in mind of bowd-lerizers and the (literal) fig-leafers. For he would permit the display of the Ten Commandments on public property only if they were secularized by placing Moses in the company of nonreligious figures such as Plato, Beethoven, or Equity—preferably with the text of the commandments, like the private parts of a fig-leafed statue, invisible.121
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+The obvious criticism to make of Breyer’s opinion in Van Orden is that it does not enunciate a rule that would enable the lower courts and the pro– and anti–Ten Commandments forces to determine how far the government can go in the display of the commandments on public property. But that is not a good criticism once the political character of constitutional adjudication is acknowledged. Compromise is the essence of democratic politics and hence a sensible approach to dealing with indeterminate legal questions charged with political passion—this is Bickelian prudence minus Bickelian teleology. To describe the display of the Ten Commandments as an “establishment” of religion is far-fetched from the standpoint of the text or original meaning of the establishment clause of the First Amendment. On its face and in light of its history, the clause is simply a prohibition against Congress’s creating an established church, like the Church of England. To get from there to forbidding the State of Texas to display the Ten Commandments on its capitol grounds in company with the Heroes of the Alamo, or even the State of Kentucky to display them in a courthouse, requires a complicated chain of reasoning with too many intellectually weak links to convince doubters. In these circumstances, to give a complete victory to the secular side of the debate (or for that matter to the religious side) could be thought at once arrogant, disrespectful, and needlessly inflammatory. If the Supreme Court is inescapably a political court when it is deciding constitutional cases, we may at least hope that it might be restrained in the exercise of its power, recognizing the subjective character, the insecure foundations, of its constitutional jurisprudence:
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+. . . O, it is excellent
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+To have a giant’s strength, but it is tyrannous
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+To use it like a giant.122
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+This is an admonition for Justices of the Supreme Court, and indeed for all judges, to ponder.
+
+
+1. Shauna M. Strickland, Court Statistics Project Staff, State Court Caseload Statistics, 2004 105 (2005) (tab. 1).
+
+2. Robert A. Kagan et al., “The Business of State Supreme Courts, 1870–1970,” 30 Stanford Law Review 121, 147 n. 63 (1977).
+
+3. Frederick Schauer, “Freedom of Expression: Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture,” in European and US Constitutionalism 47, 60–61 (G. Nolte ed. 2005).
+
+4. See the tables entitled “Subject Matter of Dispositions with Full Opinions” in the Harvard Law Review’s November issues for 1955 through 2003.
+
+5. These also are statistics compiled by the Harvard Law Review.
+
+6. James Fitzjames Stephen, Liberty, Equality, Fraternity 21 (1993 [1873]).
+
+7. 543 U.S. 551 (2005).
+
+8. This is a global phenomenon. See Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Peter H. Russell and David M. O’Brien eds. 2001).
+
+9. United States v. Booker, 543 U.S. 220 (2005); Kelo v. City of New London, 545 U.S. 469 (2005).
+
+10. In the 26 months after Booker was decided, 61.6 percent of federal sentences were within the applicable sentencing guidelines range, compared to 67.5 percent in the preceding decade. (Computed from data published at the Web site of the United States Sentencing Commission, www.ussc.gov.) A negligible effect on sentence length is documented (though for only the first year after Booker was decided—more recent data are not yet available) in United States Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sentencing, ch. 4 (Mar. 2006). See also Michael W. McConnell, “The Booker Mess,” 83 Denver University Law Review 665, 676 (2006). Cf. John F. Pfaff, “The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines,” 54 UCLA Law Review 235 (2006).
+
+11. See, for example, United States v. Hatter, 532 U.S. 557, 567 (2001), quoting Federalist No. 78 (Hamilton), in The Federalist Papers 226, 227 (Roy P. Fairfield ed., 2d ed. 1966).
+
+12. Newdow v. United States Congress, 292 F.3d 597, 612 (9th Cir. 2002).
+
+13. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 17–18 (2004).
+
+14. See Ex parte Wilson, 114 U.S. 417, 427–428 (1885).
+
+15. 492 U.S. 361 (1989).
+
+16. 505 U.S. 833, 866 (1992).
+
+17. 41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64, 71–78 (1938).
+
+18. 127 S. Ct. 2553 (2007). The opinion drew a forceful dissent from Justice Scalia, who does not believe in the “boiling the frog” approach to precedents, preferring their outright overruling.
+
+19. The title of a well-known article by David A. Strauss, 63 University of Chicago Law Review 877 (1996).
+
+20. Lawrence C. Marshall, “Intellectual Feasts and Intellectual Responsibility,” 84 Northwestern University Law Review 832, 833, 836–837 (1990).
+
+21. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
+
+22. 530 U.S. 914 (2000).
+
+23. Frank I. Michelman, “The Supreme Court, 1968 Term: Foreword: On Protecting the Poor through the Fourteenth Amendment,” 83 Harvard Law Review 7 (1969). On the political underpinnings of constitutional law scholarship, see Barry Friedman, “The Cycles of Constitutional Theory,” Law and Contemporary Problems, Summer 2004, pp. 149, 151–157.
+
+24. 347 U.S. 483 (1954).
+
+25. 163 U.S. 537 (1896).
+
+26. Herbert Wechsler famously doubted whether Brown had been decided correctly. Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 1, 31–34 (1959). Learned Hand thought the decision erroneous. Hand, The Bill of Rights 54–55 (1958).
+
+27. In 1951–1952, the average expenditure per pupil in white public schools in the South was $132.38, compared to $90.20 in black public schools. Truman M. Pierce et al., White and Negro Schools in the South: An Analysis of Biracial Education 165 (1955) (tab. 39). See also Robert A. Margo, Race and Schooling in the South, 1880–1950: An Economic History 24–26 (1990). Thurgood Marshall “wanted black children to have the right to attend white schools as a point of leverage over the biased spending patterns of the segregationists who ran schools.” Juan Williams, “Don’t Mourn Brown v. Board of Education,” New York Times, June 29, 2007, p. A29.
+
+28. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 348–349 and n. 143 (1985). More on these points in the next chapter.
+
+29. Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007). For penetrating criticism of the opinions, see Stuart Taylor, Jr., “Is There a Middle Ground on Race?” National Journal, July 9, 2007, http://nationaljournal.com/taylor.htm (visited July 13, 2007).
+
+30. 198 U.S. 45 (1905).
+
+31. See, for example, Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 211–218, 222–223 (2004); Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 128–129, 279–282 (1985); Bernard H. Siegan, “Protecting Economic Liberties,” 6 Chapman Law Review 43, 91–96, 100–101 (2003); and references cited in David E. Bernstein, “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” 92 Georgetown Law Journal 1, 6 nn. 16, 18 (2003).
+
+32. 543 U.S. 175 (2004).
+
+33. 543 U.S. 405 (2005).
+
+34. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989).
+
+35. See, for example, Frank Sikora, “Justice Scalia: Constitution Allows ‘Really Stupid’ Things,” Birmingham News, Apr. 14, 1999, p. 3D; Margaret Talbot, “Supreme Confidence: The Jurisprudence of Justice Antonin Scalia,” New Yorker, Mar. 28, 2005, pp. 40, 42–43.
+
+36. Lawrence v. Texas, 539 U.S. 558, 605 (2003) (dissenting opinion).
+
+37. See, for example, id. at 579 (“as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom”).
+
+38. United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform 42–43 and fig. 2.2 (2004).
+
+39. See TXO Production Corp v. Alliance Resources Corp., 509 U.S. 443, 470 (1993) (Scalia, J., concurring); BMW of North America Inc. v. Gore, 517 U.S. 559, 598 (1996) (Scalia, J., dissenting); State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (Scalia, J., dissenting).
+
+40. See Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (2006); Artemus Ward and David L. Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (2006).
+
+41. William D. Henderson and Andrew P. Morriss, “Student Quality as Measured by LSAT Scores: Migration Patterns in the U.S. News Rankings Era,” 81 Indiana Law Journal 163 (2006).
+
+42. David R. Stras, “The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process,” 85 Texas Law Review 947, 961–962 (2007). See also Stras, “The Incentives Approach to Judicial Retirement,” 90 Minnesota Law Review 1417, 1422 n. 22 (2006).
+
+43. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 302 (2004).
+
+44. Richard A. Posner, The Federal Courts: Challenge and Reform 318 (1996).
+
+45. James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review 129, 138–152 (1893).
+
+46. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, vol. 2, p. 1124 (Mark DeWolfe Howe ed. 1953).
+
+47. Id. at 888.
+
+48. 381 U.S. 479 (1965).
+
+49. The use of condoms was permitted on the ground that their purpose was to prevent the spread of venereal diseases—which is, of course, only one of their purposes. For a discussion of the invalidated statute, see Richard A. Posner, Sex and Reason 324–328 (1992).
+
+50. 501 U.S. 957 (1991).
+
+51. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005).
+
+52. See United States v. Booker, 543 U.S. 220, 229–234 (2005) (Justice Stevens’s opinion for the Court); id. at 244–247 (Justice Breyer’s opinion for the Court). Stevens and Breyer each wrote a majority opinion, Stevens on the unconstitutionality of the guidelines as mandatory sentencing directives, Breyer on their constitutionality as merely advisory.
+
+53. 18 U.S.C. § 3553(a).
+
+54. Rita v. United States, 127 S. Ct. 2456 (2007).
+
+55. See, for example, United States Sentencing Commission, U.S. Sentencing Guidelines Manual §§ 3B1.2, 3E1.1, 4A1.3 (2004).
+
+56. 18 U.S.C. § 3553(a).
+
+57. 18 U.S.C. § 3553(b).
+
+58. See, for example, Henry J. Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Convictions,” 38 University of Chicago Law Review 142, 170–171 (1970).
+
+59. LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998).
+
+60. Henry M. Hart, Jr., “The Supreme Court, 1958 Term: Foreword: The Time Chart of the Justices,” 73 Harvard Law Review 84 (1959).
+
+61. Brown v. Allen, 344 U.S. 443, 540 (1953) (concurring opinion) (“We are not final because we are infallible, but we are infallible only because we are final”).
+
+62. Hart, note 60 above, at 91.
+
+63. “Professor Hart’s Theology,” 73 Harvard Law Review 1298, 1312 (1960). Arnold continued:
+
+There is no possibility that I could pool my wisdom with Professor Hart’s so that the wisdom of both of us, “successfully pooled,” would “transcend the wisdom of” either of us. The reason is that I do not think his wisdom is real wisdom, and I am sure that he has the same opinion of mine. To lock the two of us in a room until I came to agree with the theology of Professor Hart by the process of the “maturing” of our “collective thought” would be to impose a life sentence on both of us without due process of law.
+
+
+
+
+
+Id. Arnold was correct. He had the advantage over Hart of having been an appellate judge, albeit briefly.
+
+64. Erwin N. Griswold, “The Supreme Court, 1959 Term: Foreword: Of Time and Attitudes: Professor Hart and Judge Arnold,” 74 Harvard Law Review 81 (1960).
+
+65. Id. at 84.
+
+66. Later, when he was Solicitor General, Griswold was explicit about the existence of an open area in which a judge’s “political and philosophical preconceptions and outlooks will inevitably, and rightly, be of great importance.” Erwin N. Griswold, The Judicial Process 24 (1973).
+
+67. Griswold, note 64 above, at 92.
+
+68. Id. at 94.
+
+69. See Hashem Dezhbakhsh and Paul H. Rubin, “From the ‘Econometrics of Capital Punishment’ to the ‘Capital Punsihments’ of Econometrics: On the Use and Abuse of Sensitivity Analysis” (Emory University, Sept. 2007), and studies cited there (most finding deterrent effect, some not); Dezhbakhsh et al., “Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data,” 5 American Law and Economics Review 344, 364–365 (2003); Joanna M. Shepherd, “Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment,” 33 Journal of Legal Studies 283, 305 (2004); and other studies cited in Paul Rubin, “Statistical Evidence on Capital Punishment and the Deterrence of Homicide: Written Testimony for the Senate Judiciary Committee on the Constitution, Civil Rights, and Property Rights,” Feb. 1, 2006, http://judiciary.senate.gov/testimony.cfm?id=1745&wit_id=4991 (visited June 13, 2007).
+
+70. See, for example, John Donohue and Justin J. Wolfers, “A Reply to Rubin on the Death Penalty,” Economists’ Voice, Apr. 2006, http://bpp.wharton.upenn.edu/jwolfers/Press/Death%20Penalty(BEPressReply).pdf (visited May 13, 2007); Craig J. Albert, “Challenging Deterrence: New Insights on Capital Punishment Derived from Panel Data,” 60 University of Pittsburgh Law Review 321, 363 (1999); Ruth D. Peterson and William C. Bailey, “Is Capital Punishment an Effective Deterrent for Murder? An Examination of Social Science Research,” in America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 251, 274–277 (James R. Acker et al. eds., 2d ed. 2003).
+
+71. Roper v. Simmons, note 7 above, at 568–575.
+
+72. See Jeffrey Arnett, “Reckless Behavior in Adolescence: A Developmental Perspective,” 12 Developmental Review 339, 344 (1992) (“It is not being suggested here that all adolescents are reckless, only that adolescents as a group engage in a disproportionate amount of reckless behavior”). Arnett makes no distinction between persons under and over 18; in fact, he defines adolescence “as extending from puberty to the early 20’s.” Id. at 340. And he does not directly discuss murder or other serious crimes. A study cited not by the Court but by Laurence Steinberg and Elizabeth S. Scott in “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty,” 58 American Psychologist 1009 (2003), discusses “teens” in passing but, like Arnett, does not classify them by age. See Baruch Fischhoff, “Risk Taking: A Developmental Perspective,” in Risk-Taking Behavior 133, 142, 148 (J. Frank Yates ed. 1992).
+
+73. Steinberg and Scott, note 72 above, at 1017. See also id. at 1012–1014. The Steinberg-Scott study, coauthored by law professor Elizabeth Scott, is an advocacy article. Its last sentence is: “The United States should join the majority of countries around the world in prohibiting the execution of individuals for crimes committed under the age of 18.” Id. at 1017. The only “study” cited by the Court other than the Arnett and Steinberg-Scott articles is not a study at all, but an old, speculative book by Erik H. Erikson, Identity: Youth and Crisis (1968). The Court did not cite a study that concludes that adolescents “may be just as competent as adults at a number of aspects of decision making about risky behavior.” Lita Furby and Ruth Beyth-Marom, “Risk Taking in Adolescence: A Decision-Making Perspective,” 12 Developmental Review 1, 36 (1992). For other cautionary notes, see Fischhoff, note 72 above, at 148, 152, 157.
+
+74. Justice Stevens is the holdout.
+
+75. For statistics and sources, see Richard A. Posner, “The Supreme Court, 2004 Term: Foreword: A Political Court,” 119 Harvard Law Review 31, 35–39 (2005).
+
+76. Margaret Meriwether Cordray and Richard Cordray, “The Supreme Court’s Plenary Docket,” 58 Washington and Lee Law Review 737, 751–758 (2001); Arthur D. Hellman, “The Shrunken Docket of the Rehnquist Court,” 1996 Supreme Court Review 403, 410–412.
+
+77. Erwin N. Griswold, “Rationing Justice—The Supreme Court’s Caseload and What the Court Does Not Do,” 60 Cornell Law Review 335, 346 (1975).
+
+78. Hart, note 60 above, at 99.
+
+79. Dennis J. Hutchinson, “Felix Frankfurter and the Business of the Supreme Court, O.T. 1946–O.T. 1961,” 1980 Supreme Court Review 143 (1980).
+
+80. See, for example, Cass R. Sunstein, “Deliberative Trouble? Why Groups Go to Extremes,” 110 Yale Law Journal 71 (2000); Daniel J. Isenberg, “Group Polarization: A Critical Review and Meta-Analysis,” 50 Journal of Personality and Social Psychology 1141 (1986).
+
+81. William H. Rehnquist, The Supreme Court 254–255, 258 (2001).
+
+82. In the 1960s, the average federal criminal sentence was 34.4 months. It rose to 40.4 months in the 1970s and to 59.6 months for the period between 1994 and 2003. Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics—2003 424–425 (1996) (tab. 5.23).
+
+83. Stephen Ansolabehere and James M. Snyder, Jr., “Reapportionment and Party Realignment in the American States,” 153 University of Pennsylvania Law Review 433, 434 (2004); William H. Riker, “Democracy and Representation: A Reconciliation of Ball v. James and Reynolds v. Sims,” 1 Supreme Court Economic Review 39, 41–55 (1982). But see Jeffrey R. Lax and Mathew D. McCubbins, “Courts, Congress, and Public Policy, Part II: The Impact of the Reapportionment Revolution on Congress and State Legislatures,” 15 Journal of Contemporary Legal Issues 199 (2006).
+
+84. In 2000, 34 percent of women ages 15 to 44 lived in the 87 percent of the nation’s counties that have no abortion clinic or other provider, and 86 of the nation’s 276 metropolitan areas had no provider. Lawrence B. Finer and Stanley K. Henshaw, “Abortion Incidence and Services in the United States in 2000,” 35 Perspectives on Sexual and Reproductive Health 6 (2003). See also Guttmacher Institute, “State Policies in Brief: An Overview of Abortion Laws,” Sept. 2007, http://guttmacher.org/statecenter/spibs/spib_OAL.pdf (visited Sept. 11, 2007).
+
+85. Alexander M. Bickel, “The Supreme Court, 1960 Term: Foreword: The Passive Virtues,” 75 Harvard Law Review 40, 77 (1961).
+
+86. Wechsler, note 26 above, at 15–20.
+
+87. See, for example, Quill v. Vacco, 80 F.3d 716, 738–743 (2d Cir. 1996) (Calabresi, J., concurring), reversed, 521 U.S. 793 (1997); United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring); Guido Calabresi, “The Supreme Court, 1990 Term: Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores),” 105 Harvard Law Review 80, 103–108 (1991).
+
+88. Bickel, note 85 above, at 50. See also id. at 64.
+
+89. Id. at 47–58.
+
+90. Id. at 58–64.
+
+91. “A device to turn the thrust of forces favoring and opposing the present objectives of the statute toward the legislature, where the power of at least initial decision properly belongs in our system, was available to the Court, and it is implicit in the prevailing opinion [Poe v. Ullman, 367 U.S. 497 (1961)]. It is the concept of desuetude.” Bickel, note 85 above, at 61. But the Court invalidated the Connecticut statute not on the ground of desuetude, but as an infringement of a constitutional right of privacy (an Aesopian term meaning sexual freedom). Griswold v. Connecticut, 381 U.S. 479, 485–486 (1965). Actually the statute was not wholly ineffectual; it prevented the creation of birth control clinics. Posner, note 49 above, at 205.
+
+92. Bickel, note 85 above, at 79.
+
+93. Id. at 77.
+
+94. 539 U.S. 558 (2003).
+
+95. Consider this strange passage from Kennedy’s opinion for the Court in the partial-birth abortion case, Gonzales v. Carhart, note 21 above, at 1634: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.” Loving your child and therefore wanting him to live shows no respect for human life in general. Most Nazis loved their children. And what has the point to do with partial-birth abortion? Most women who have an abortion do not think they are killing a child. If that is what they are doing, the implication (which I am sure Justice Kennedy does not accept) is that failure to criminalize abortion is a denial of equal protection of the laws in the original sense of equal protection of the laws: it is the systematic and deliberate withdrawal of police protection from a large class of children. What does it tell us about the commitment to legalism of the four most conservative Justices of the Supreme Court that they should have joined such a wild opinion?
+
+96. See, for example, Dana Milbank, “And the Verdict on Justice Kennedy Is: Guilty,” Washington Post, Apr. 9, 2005, p. A3; Dennis Byrne, “Trampling All Over State Legislatures,” Chicago Tribune, Mar. 7, 2005, p. 15; Ed Feulner, “Courting Trouble,” Washington Times, Mar. 16, 2005, p. A18; Jonathan Gurwitz, “If It Pleases the Court, Law by Consensus,” San Antonio Express-News, Mar. 13, 2005, p. 3H.
+
+97. 536 U.S. 639 (2002).
+
+98. Michael C. Dorf, “The Supreme Court, 1997 Term: Foreword: The Limits of Socratic Deliberation,” 112 Harvard Law Review 4, 60–69 (1998).
+
+99. Note 29 above.
+
+100. In chapter 9, I gave another example of an unpragmatic Supreme Court decision—Clinton v. Jones.
+
+101. 545 U.S. 469 (2005).
+
+102. Id. at 483.
+
+103. Id. at 503. Note the echo—could it be deliberate, the work of a law clerk with a sense of humor?—of the opening sentence of the Communist Manifesto: “A spectre is haunting Europe, the spectre of communism.” Karl Marx and Friedrich Engels, The Communist Manifesto 1 (1998 [1848]).
+
+104. On the simple economics of eminent domain, see Richard A. Posner, Economic Analysis of Law § 3.7, pp. 55–61 (7th ed. 2007); Steven Shavell, Foundations of Economic Analysis of Law 123–136 (2004).
+
+105. 545 U.S. at 489 n. 24.
+
+106. Transcript of Oral Argument, pp. 39–40, www.supremecourtus.gov/oral_arguments/argument_transcripts/04–108.pdf (visited May 2, 2007).
+
+107. 545 U.S. at 503. The study, undertaken on behalf of private developers, is a detailed examination of a large number of recent eminent domain proceedings. Dana Berliner, “Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain” (2003), www.castlecoalition.org/pdf/report/ED_report.pdf (visited May 2, 2007). In many of the cases discussed, the court rebuffed the attempt to use eminent domain. In others, though the use of eminent domain appears questionable, the report’s presentation is one-sided, and it is difficult to make a judgment about the reasonableness of the use of the power. The report does not discuss holdout problems.
+
+108. Note, for example, the sparse index references to eminent domain in Revitalizing Urban Neighborhoods 276 (W. Dennis Keating et al. eds. 1996), and the absence of such references in Charles C. Euchner and Stephen J. McGovern, Urban Policy Reconsidered: Dialogues on the Problems and Prospects of American Cities 343 (2003). Even scholars hostile to urban development projects rarely refer to eminent domain. See, for example, James V. DeLong, Property Matters: How Property Rights Are under Assault—and Why You Should Care 378 (1997).
+
+109. Daniel B. Kelly, “The ‘Public Use’ Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence,” 92 Cornell Law Review 1, 20–24 (2006).
+
+110. 537 U.S. 186 (2003).
+
+111. See, for example, John Ryskamp, The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch (2007); Daniel H. Cole, “Why Kelo Is Not Good News for Local Planners and Developers,” 22 Georgia State University Law Review 803 (2006); Abraham Bell and Gideon Parchomovsky, “The Uselessness of Public Use,” 106 Columbia Law Review 1412, 1413–1426 (2006); Donald E. Sanders and Patricia Pattison, “The Aftermath of Kelo,” 34 Real Estate Law Journal 157 (2005); Timothy Egan, “Ruling Sets Off Tug of War over Private Property,” New York Times, July 30, 2005, p. A1; Kenneth R. Harney, “Eminent Domain Ruling Has Strong Repercussions,” Washington Post, July 23, 2005, p. F1; Adam Karlin, “Property Seizure Backlash,” Christian Science Monitor, July 6, 2005, p. 1. According to the National Conference of State Legislatures’ tracking of eminent domain legislation, www.ncsl.org/programs/natres/EMINDOMAIN.htm (visited Oct. 4, 2007), 32 states have enacted legislation provoked by Kelo.
+
+112. 545 U.S. 677 (2005).
+
+113. 545 U.S. 844 (2005).
+
+114. 545 U.S. at 687.
+
+115. Id. at 681 n. 1.
+
+116. Id. at 692.
+
+117. Id. at 701.
+
+118. Id. at 704 (emphasis in original).
+
+119. Id. at 735 (Stevens, J., dissenting).
+
+120. Earnings from the Cecil B. DeMille movie The Ten Commandments helped to finance the Eagles’ project, which DeMille personally encouraged, of placing Ten Commandments monuments throughout the United States. See “Supreme Court Issues Rulings on Ten Commandments Cases,” Ten Commandments News, June 15, 2005, http://10commandments.biz/biz/newsletter/2005/june/supreme_court_ten_commandments.php (visited May 2, 2007). When it comes to establishment clause issues, the taint of commerce is the saving grace for religion.
+
+121. 545 U.S. at 740–741 and n. 4.
+
+122. William Shakespeare, Measure for Measure, act 2, sc. 2, ll. 107–109.
+
+
+
+
+
+11
+
+
+
+
+
+Comprehensive Constitutional Theories
+
+
+
+
+
+I noted in preceding chapters the allure of comprehensive theories as a way of dispelling the uncertainty of resolving cases in areas in which the orthodox legal materials of decision run out. The pressure to develop such theories is particularly acute in constitutional law, where the inadequacy of the orthodox materials is most conspicuous. The most recent entry in a crowded field is the theory advanced by Justice Breyer in his book Active Liberty.1 It is a little unfair to use Breyer’s book to illustrate the limitations of comprehensive constitutional theories. A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all. The dog’s walking is inhibited by anatomical limitations, the Justice’s writing by political ones. Supreme Court Justices are powerful political figures; they cannot write with the freedom and candor of obscure people. Still, my subject is judges, and a book by a sitting Supreme Court Justice articulating his judicial philosophy bears importantly upon it.
+
+Beginning in the 1970s, the initiative in constitutional debate passed to the conservatives. They proposed—and, owing largely to accidents of appointment, to a marked extent achieved—a rolling back of liberal doctrines (notably in regard to states’ rights, police practices, and executive power) and of the methodology of loose construction that had enabled liberal Justices to offer a plausible justification for those doctrines. The liberals continue to win a share of victories in areas such as homosexual rights and capital punishment, but for the most part their stance has been defensive:2 defense of the Warren Court and Roe v. Wade, defense of a broad interpretation of the commerce clause and congressional power generally and a narrow interpretation of the Second Amendment and presidential prerogative. Breyer is a liberal, but he wants to do more than defend liberal decisions piecemeal. He wants an overarching approach to set against the textualism and originalism of his judicial foes, but one more modest and democratic, less elitist and academic, less removed from the actualities of the judicial process, than Ronald Dworkin’s moral theory of constitutional law. Breyer’s book will be widely read. The short book of Scalia’s against which his book is directed has been cited in more than a thousand law review articles.3 What Breyer’s book is unlikely to do is to persuade his colleagues or other judges. The victories of conservative judges have been due not to the power of their ideas but to the electoral success of Republicans, the political hue of the judicial appointments to which that success has given rise, and a general rightward drift in American public opinion.
+
+Breyer follows Benjamin Constant in distinguishing between the “liberty of the ancients” and the “liberty of the moderns,” and aligns “active liberty” with the former. He fails to note that Constant was writing against the “liberty of the ancients,” which Rousseau had introduced in France with tragic results, and in favor of the “liberty of the moderns.”4 To Constant, the liberty of the ancients signified the collective exercise of sovereignty, with no concept of individual rights against the state.5 It is an extreme version of what we now call “direct democracy,” illustrated by referenda in California and Switzerland and by the New England town meeting. The “liberty of the moderns,” in contrast, is liberty from state oppression. It is what Isaiah Berlin called “negative liberty.”6 It is what citizens of Athens and of revolutionary France lacked. Its instruments include representative democracy (not direct democracy, as in ancient Athens), separation of powers, federalism, and the type of legally enforceable rights against government that are found in the Bill of Rights.
+
+Breyer understands by “liberty of the ancients” the liberty that Athenian citizens enjoyed for much of the fifth and fourth centuries b.c.7 because their city was a democracy. Constant, on the contrary, believed Athens to have been the ancient state that “most resembles the modern ones” and Sparta a better example of the liberty of the ancients.8 Yet Athens exemplified ancient liberty too. The Athenian Assembly, to which all citizens belonged, had plenary power; there were no legislators other than the citizens themselves when attending its sessions. To prevent the emergence of a political class, the few executive officials were chosen mainly by lot, for one-year terms, though some were elected and could be reelected.9 Similarly, there were no judges except randomly selected subsets of citizens—jurors who voted without deliberating, unguided by jury instructions, since there were no judges to give such instructions. For that matter, there was no legal profession, though orators such as Demosthenes would draft speeches for the litigants to give at trial. There was plenty of litigation, but there were no rights to life, liberty, or property enforceable against the state. The only justice was popular justice.
+
+Breyer wants the Supreme Court to do more to promote the “active liberty of the ancients,”10 and underscores the point by remarking that “‘active liberty’ . . . bears some similarities to Isaiah Berlin’s concept of ‘positive liberty.’”11 That was Berlin’s term for the “liberty of the ancients” as revived by Rousseau and extended, Berlin thought, by modern totalitarians!12 But of course Breyer does not really want to turn the United States into a direct democracy on the model of ancient Athens, or on any other model. He says that “‘delegated democracy’ need not represent a significant departure from democratic principle,”13 and by “delegated democracy” he means simply representative democracy. The “liberty of the ancients” is a historical curiosity that Breyer, who is not a classicist or an intellectual historian, should have left to the experts in such matters. It does no work in his book. It is a failed effort to theorize a political program. The program closely resembles that of John Hart Ely, who argued that the major thrust of the Warren Court had been to make American government more democratic,14 but not democratic in the direct-democracy sense. Breyer, like Ely, wants to show that our judiciary, though an oligarchy, is, even at its most aggressive, a force for democracy. (In the next chapter we shall see this paradox being pushed even harder by the former Israeli supreme court justice Aharon Barak.) The specific issues pressed by Breyer differ from Ely’s, but this mainly reflects changes in the policy agenda over the quarter century that separates their two books.
+
+It may seem curious, given the influence on Breyer of Ely’s theory, that he should refer to Ely only in passing.15 It is not that he is trying to steal Ely’s thunder; that would be wholly out of character for Breyer. It is I think a reluctance to acknowledge the academic provenance of his theory. The Justices do not want to take their cues from academics—this is an aspect of the alienation of the academy from the judiciary that I discussed in chapter 8. Justice Scalia is the most influential Supreme Court theorist, but his theory is distinctly homegrown. Although like Breyer he is a former academic, his advocacy of the originalist theory of constitutional interpretation does not come with an academic pedigree. There is an increasing preciosity to constitutional theory16 that is off-putting to judges. And there are grounds for believing that if Justices are politicians in robes, constitutional theorists are politicians in academic gowns (a belief supported by, among other things, the academic briefs in Rumsfeld v. FAIR). Liberal judges and lawyers are urged to challenge Scalia on his own turf by redescribing themselves as textualists-originalists and arguing that the original meaning of the constitutional text is that judges are to be nonoriginalist interpreters.17 This is a rhetorical gambit, politically motivated.
+
+As a Supreme Court Justice, writing in the glare of public scrutiny that such judges receive, Breyer cannot acknowledge that he wants to impose his concept of “active liberty” on the Constitution. Convention requires him to find the concept in the venerable parchment.18 Manfully he tries. He recognizes that it is an uphill struggle: “The primarily democratic nature of the Constitution’s governmental structure has not always seemed obvious.”19 Indeed not—and for the excellent reason that the structure is not “primarily democratic.” It is republican, with a democratic component. The Constitution’s rejection of monarchy (no king), aristocracy (no titles of nobility), and a national church (no religious oaths of office) was revolutionary. But the governmental structure that it created bore no resemblance to that of ancient Athens and was, and remains, incompletely democratic.
+
+Of the major components of the federal government—the executive branch, consisting of the President, the Vice President, and other high officials; the judiciary; the Senate; and the House of Representatives—only the last was to be elected by the people. And since the Constitution conferred no voting rights but instead allowed the states to fix the eligibility criteria for voters for members of the House (except that the criteria had to be the same as those the state prescribed for voters for members of the lower house of its own legislature), states could limit the franchise by imposing property or other qualifications for voting. The President and Vice President were to be chosen by an Electoral College whose members would in turn be chosen by the states according to rules adopted by each state legislature; there was no requirement of popular election of the Electoral College’s members. Other executive branch officials would be appointed by the President or by federal judges. Senators would be appointed by state legislatures, whose members were not required by the federal Constitution to be elected. Supreme Court Justices (and other federal judges, if Congress took up the option conferred on it by the Constitution to create federal courts in addition to the Supreme Court) would be appointed by the President, subject to senatorial confirmation, for life. Political parties were not envisaged; the best men (hoi aristoi) were expected to rule, rather than the survivors of party competition. There was no trace of direct democracy in the Constitution of 1787, and thus no provision for initiatives, referenda, or recalls. The framers purported to be speaking on behalf of “We the People,” as the preamble states, but there is no novelty in adopting a nondemocratic regime by plebiscite; ask Napoleon. Even the ratification of the Constitution was by state conventions rather than by direct popular vote. The Constitution guarantees a republican (that is, a nonmonarchical) form of government to each state, but not a democratic government.
+
+If the framers had “confidence in democracy as the best check upon government’s oppressive tendencies,”20 why is there so little democracy, and none of it direct democracy, in the document they wrote? The Bill of Rights, it is true, added a dollop of direct democracy in its guarantees of the right to a jury trial in criminal and some civil cases (although American juries, unlike ancient Athenian ones, are supervised by professional judges). But the major thrust of the Bill of Rights was to limit legislative and executive power—to place liberty in opposition to democracy—and thus to vindicate the “liberty of the moderns,” not the liberty of the ancients that Breyer purports to find in the Constitution.
+
+What we see in the structure of our eighteenth-century Constitution is not an echo of Athens but the adaptation of the institutions of the British eighteenth-century monarchy to a republican ideology. The President corresponds to the king; he exercises the traditional monarchical prerogatives of pardoning, conducting foreign affairs, appointing executive officials and judges, and commanding the armed forces. He is of course not directly elected. The Senate and the Supreme Court correspond to the House of Lords (the House of Lords Appellate Committee is Britain’s supreme court21), and the House of Representatives corresponds to the House of Commons: elected, but by a restricted franchise. Subsequent amendments and changing practices and institutions made the Constitution more democratic, but Breyer insists that the original Constitution, the Constitution of 1787, was animated by the spirit of Pericles. There is irony in an anti-originalist trying to give a historical pedigree to his anti-originalist approach. Breyer’s lack of interest in the background and the actual texture of the Constitution is consistent with the loose-constructionist approach that he champions in his book and in his judicial opinions.
+
+Breyer offers a series of illustrations of how the concept of active liberty would, if accepted as the true spirit of the Constitution, shape constitutional law. He begins with free speech. He contrasts political and commercial speech, arguing that the former is entitled to much greater protection because it is central to democracy. But he also defends, against free-speech objections, campaign finance laws that limit political advertising.
+
+The notion of the primacy of political speech is common, but it is misleading and unhelpful. It ignores a principle of rational decision theory that is fully applicable to legal pragmatism: that consequences should be evaluated at the margin. The question should not be whether political speech is more valuable than commercial speech in the sense that prohibiting all political speech would be worse than prohibiting all commercial speech. That is never the issue. The issue always is a comparison of the harm done by a marginal curtailment of one value with the benefit to another value from the curtailment. It is easy to imagine restrictions on political speech that would do less harm than restrictions on commercial speech; compare a prohibition against advocating suicide bombing with a prohibition of all commercial advertising. And where does scientific and artistic expression fit into Breyer’s hierarchy of speech categories? He does not say, though it is especially easy to imagine restrictions on freedom of scientific inquiry that would be far more destructive of the nation’s power and prosperity than minor restrictions on political expression.
+
+Breyer argues that limiting contributions to political campaigns should not be held to infringe freedom of speech. He recognizes that to forbid a person to spend $1 million to buy a television commercial extolling a candidate curtails expression. But he thinks that limiting the right of the rich to buy campaign advertising is justified by the contribution that such a limitation would make to active liberty. The First Amendment is to be understood “as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process,” and campaign finance laws have a “similar objective. They seek to democratize the influence that money can bring to bear upon the electoral process, thereby building public confidence in that process, broadening the base of a candidate’s meaningful financial support, and encouraging greater public participation.”22 The fear is that without limitations on individual campaign contributions, candidates will confine their fund-raising to the handful of fat cats, and the ordinary people will become alienated from the political process because they will assume that policy is shaped by the interests of the rich and that the people’s voice is not heard.
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+No evidence for this implausible speculation is offered. The wealthy are not a monolith; they have conflicting interests and opinions. Also they lack the votes—there are too few wealthy people—to swing elections, and so political advertisements are aimed at average people. And it is odd to think that the fewer political advertisements there are, the greater the amount of political participation there will be. Furthermore, if some candidates court the wealthy, others will be spurred to raise money from the nonwealthy—something the Internet has made easier to do.
+
+I am not suggesting that Breyer is wrong to think that campaign finance laws do not violate the First Amendment. If there is no evidence that they promote democracy, there is likewise no evidence that they curtail free speech enough to undermine democracy or do any other harm to society. And concern about the possibly malign effects of private spending on political campaigns is hardly frivolous, for otherwise voters would be allowed to sell their votes. But it is no help in resolving challenges to campaign finance laws to suggest that the test of their constitutionality should be “proportionality.” Breyer wants the law’s “negative impact upon those primarily wealthier citizens who wish to engage in more electoral communication” to be weighed against “its positive impact upon the public’s confidence in, and ability to communicate through, the electoral process . . . Does the statute strike a reasonable balance between electoral speech-restricting and speech-enhancing consequences? Or does it instead impose restrictions on speech that are disproportionate when measured against their electoral and speech-related benefits, taking into account the kind, the importance, and the extent of those benefits, as well as the need for the restriction in order to secure them?”23 “The inquiry is complex,” writes Breyer.24 No, it is indeterminate.
+
+The problem is not that he is asking the court to weigh imponderables. For while “weighing imponderables” sounds like an oxymoron (“imponderable” is from the Latin ponderare, meaning “to weigh”), it isn’t quite. Often a judge can know, even without quantification, that one interest at stake in a case is weightier than another. In a negligence case neither the burden of precautions nor the probability and magnitude of the accident that will occur if the precautions are not taken may be quantified or even quantifiable, yet it may be apparent that there is a grave risk of a serious accident that could easily be averted (negligence), or that the cost of the precautions would be disproportionate to the slight risk of a minor accident (no negligence). That is the “tolerable windows” approach that I advocated in chapter 9. But the key terms in Breyer’s test, such as “impact upon the public’s confidence in, and ability to communicate through, the electoral process” and the “importance” of a challenged law’s “electoral and speech-related benefits,” are so nebulous that they cannot be weighed against each other at all. High-level abstractions such as “democracy” and “active liberty” can be arrayed with equal plausibility on either side of constitutional questions. They are makeweights. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing decision (as reapportionment decisions are widely thought to be) it can be defended as an application of the “higher democracy” embodied in the Constitution. So originalists are democrats along with loose constructionists. Likewise federalists, who want to honor the democratic choices made at the state and local levels, and nationalists who want to honor the democratic choices made at the federal level.
+
+Breyer is one of the nationalists, despite his acknowledgment that a nation as populous as the United States needs a federal system in order to give the citizenry a sense of full participation in political life because issues at the state and local levels are often both more important and more intelligible to people than issues involving the national government. Disagreeing with a majority of his colleagues,25 he argues that the federal government should be allowed to compel state officials to assist in enforcing federal law, as by requiring local sheriffs to check on compliance with federal gun control laws. He thinks that unless the federal government can force state officials to assist in administering federal programs, it will need a larger bureaucracy and so will expand at the expense of state and local government. A more likely consequence of federal commandeering of state officials would be more federal programs because some of their costs would have been shifted from the federal treasury to the states. State officials would be drafted as de facto federal employees. That is the antithesis of federalism.
+
+Continuing in a nationalist vein, Breyer challenges the decisions in which the Supreme Court has limited federal regulation by defining interstate commerce more narrowly than it had done since the 1930s.26 He argues that federal laws based on an expansive understanding of interstate commerce are democratic because “the public has participated in the legislative process at the national level.”27 But remember that he has acknowledged that political participation is less participatory at the national than at the state level, an acknowledgment inconsistent with criticizing the Court for expanding the scope for political participation at the state level by narrowing the scope for federal regulation.28 Oddly, considering his commitment to salting law with democracy, he does not remark the fact that, as I noted in chapter 5, state government is more democratic than our national government.
+
+Consistent with his reputation (not wholly earned, as we saw in chapter 10) as a pragmatic judge, Breyer urges his colleagues to “ask about the consequences of decision-making on the active liberty that federalism seeks to further” and to “consider the practical effects on local democratic self-government of decisions interpreting the Constitution’s principles of federalism.”29 But when consequences can only be conjectured, the judge is left at large. When would one know that a law had impaired such elusive phenomena as “active liberty” or “local democratic self-government”?
+
+Breyer endorses the approach proposed by Alexander Bickel and more recently by Guido Calabresi for promoting “dialogue” between courts and legislatures (see chapter 10). Here is Breyer’s version:
+
+
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+Through a hard-look requirement, for example, the Court would communicate to Congress the precise constitutional difficulty the Court has with the statute at issue without resorting to permanent invalidation. Congress, in reenacting the statute, would revisit the matter and respond to the Court’s concerns. A clear-statement rule would have the Court call upon Congress to provide an unambiguous articulation of the precise contours and reach of a given policy solution. Those doctrines would lead the Court to focus upon the thoroughness of the legislature’s consideration of a matter.30
+
+
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+This one-sided dialogue would tie Congress and state legislatures in knots. Offered by Breyer as an olive branch to a democratically elected branch of government, it would expand judicial power at the expense of legislatures by invalidating legislation because it failed to meet the criteria of thoroughness, clarity, and precision.
+
+In another part of the book Breyer points out that new technologies have altered the landscape of privacy. He urges courts to forgo offering definitive answers when there is so much uncertainty and such rapid change. Instead the answers should be allowed to “bubble up from below” in a process “best described as a form of participatory democracy.”31 Breyer illustrates with a decision that he joined in which the Court held the First Amendment violated by a federal statute that forbade broadcasting a private cell phone conversation, which an unknown person had intercepted with a scanner and delivered to a radio station.32 Breyer wrote a concurring opinion that emphasized three points and indicated that he might have voted differently had at least one of them been absent: the radio station had been an innocent recipient of the tape of the illegally intercepted conversation; the conversation, which was between two union officials, was a matter of public interest because it contained a threat to damage property; and the conversation was about business rather than about intimate private matters, so the affront to privacy in broadcasting the conversation was less than it might have been.
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+All this has little to do with “participatory democracy” (the empty slogan of 1960s radicals) or for that matter with new technologies. The decision subordinates the privacy of conversations to the media’s interest in disseminating matters that the public may be interested in learning about. The principal effect may be to discourage the use of analog cell phones (which are easier to eavesdrop on than wire telephones, and which are anyway on their way out—an already old new technology) for the discussion of sensitive matters. The irony is that the media know well the value of privacy of communications for themselves—newspapers and other news media are desperate to avoid having to identify their reporters’ confidential sources—but do not respect the same privacy interests of the subjects of their stories. Decisions that fail to protect the privacy of communications may result in fewer communications, with a resulting loss to freedom of speech and so, one might have thought, to active liberty.
+
+In a discussion of affirmative action, Breyer declares his agreement with certain “practical considerations”33 that Justice O’Connor mentioned in the part of her opinion for the Court in Grutter v. Bollinger34 that upheld the affirmative action program of the Michigan Law School. They are that American businesses and the American military consider affirmative action important to their operations and that effective integration of a group into the nation’s civic life requires that “the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”35 What O’Connor was saying, though one must read between the lines to get it, was that black people in America, because on average they lag so far behind whites, need a helping hand to raise them to a level at which they will feel well integrated into American society, rather than constituting a disaffected underclass.
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+Pragmatically appealing as that ground for affirmative action may be, it has nothing to do with democracy. Athens thrived on exclusion. Most of the population consisted of women, slaves, and aliens, none of whom had the rights of citizens; citizens comprised no more than 20 percent, and perhaps as little as 10 percent, of the adult population.36 I would not labor the point had not Breyer sounded a Rousseauian note in the series of rhetorical questions by which he seeks to tie O’Connor’s analysis to active liberty: “What are these arguments but an appeal to principles of solidarity, to principles of fraternity, to principles of active liberty?”37 Solidarity and fraternity, yes; these were ideals of Athenian society as of the French Revolution. But they are not, as Breyer implies, democratic ideals. Nondemocratic societies have frequently achieved high levels of solidarity, sometimes, as in the case of Nazi Germany, with the aid of racist policies.
+
+Breyer’s book makes some good arguments against strict construction and in favor of using statutory language and other clues to infer a statute’s purpose and then using that purpose to guide interpretation. But he fails to engage the strongest argument against the purposive approach—that it tends to override legislative compromises. (He also overlooks the related possibility of multiple purposes that may be in conflict.38) The original or underlying purpose of a statute may be clear enough, but that purpose may have been blunted in drafting in order to obtain majority support. If so, using the pristine purpose to resolve ambiguities might give the supporters of the statute more than they were able to achieve in the legislative process. That would be undemocratic.
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+Is Breyer’s commitment to democracy or just to policies that he happens to favor? There is a revealing slip when he says that “an interpretation of a statute that tends to implement the legislator’s will helps to implement the public’s will and is therefore consistent with the Constitution’s democratic purpose.”39 The slip is in referring to a single legislator rather than to the legislature. Legislation is passed by cobbling together a majority of often fractious legislators representing different interests. Compromise is inescapable and can obliterate single-minded purpose. The public is not a singularity either.
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+This is not to suggest that the purposive approach is wrong. Most of the gaps in statutes are unintentional, and there is no way to fill the gaps sensibly without reflecting on what a statute seems to have been aimed at accomplishing. But that is the counsel of good sense rather than anything to do with democracy (Blackstone was not a democrat, nor was Aristotle, who had made the same point 2,000 years earlier40). This is further shown by Breyer’s proposal that the best way to implement the purposive approach is to adopt the “fiction” of the “reasonable legislator.”41 The interpreter asks not what the actual legislators thought but what a “reasonable” legislator (again singular) would have thought. It is the judge who decides what is “reasonable,” for remember that the “reasonable legislator” is a fiction. To suggest that this approach will “translate the popular will into sound policy”42 is heroic, even if one passes over the uncertainties buried in the concept of the “popular will.” The concept of the “reasonable legislator” is a tool for maximizing the judge’s discretion in statutory interpretation, as the judge is bound to regard himself as being “reasonable” and therefore as knowing what a reasonable legislator would do.
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+What is true and important is that legislators may be content to have the judiciary impose “reasonable” interpretations on their legislative handiwork; otherwise the legislators will have to spend a lot of time amending their and their predecessors’ enactments. Textualists do legislatures no favor by insisting that statutes speak clearly; the conditions of the legislative process, and in particular the need to compromise in order to get statutes passed, make it impossible for legislatures to promulgate unambiguous statutes. Judges clean up after legislators, which is fine, and even in a sense democratic.
+
+The concept of the reasonable legislator recurs when Breyer turns to administrative law. Chevron U.S.A. v. Natural Resources Defense Council, Inc.43 held that when a regulatory statute is ambiguous, the court should defer to the regulatory agency’s statutory interpretation, if reasonable, on the theory that in such cases statutory interpretation, though a quintessentially judicial task, has been delegated by Congress to the agency that enforces the statute, subject to only light judicial review. Breyer proposes that to determine in a particular case whether this delegation has occurred the judge should “ask whether, given the statutory aims and circumstances, a hypothetical member [i.e., a reasonable member of Congress] would likely have wanted judicial deference in this situation,”44 or, contrariwise, would have wanted to decide the question for himself. That is the wrong question. By hypothesis, the statute is ambiguous. Congress did not decide for itself, or if it did, we do not know what its decision was. The question is whether Congress should be taken to have wanted the courts or the regulatory agency to resolve the ambiguity. About all that can be said in answer to that question is that if the issue in the case is a technical one that is within the scope of the agency’s expertise but not the judges’, the court might as well defer; otherwise not. The idea of “delegation” in Chevron is a fiction. It is doubtful that Chevron, heavily cited though it is, altered judicial review of administrative action.45
+
+Textualists (or textualists-originalists), such as Breyer’s frequent sparring partner Scalia, argue, as Breyer notes, that the kind of loose-construction approach that Breyer champions “open[s] the door to subjectivity.”46 It does, and the only good response is that textualism or originalism is just as protean as “active liberty.” Breyer’s response is different. It is that “a judge who emphasizes consequences, no less than any other, is aware of the legal precedents, rules, standards, practices, and institutional understanding that a decision will affect.”47 But “aware of” does not mean “committed to.” Breyer joined Lawrence v. Texas (see chapter 10), which overruled Bowers v. Hardwick,48 and he joined Roper v. Simmons, which, as we saw in chapter 10, overruled Stanford v. Kentucky. Lawrence and Roper are bold “liberal” decisions. Neither exhibits a careful attention to consequences. The sodomy statutes struck down in Lawrence had virtually no consequences, since by the time the case was decided they were almost never enforced. They had become little more than a statement, to which few were listening, of social disapproval of homosexuality, and the Court substituted its own, more “enlightened” moral view. And we recall that the psychological studies offered in Roper to show that juveniles lack adequate moral maturity to appreciate the significance of murdering were misunderstood by the Court.
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+In defense of his dissent in Zelman, the school voucher case (see chapter 10), Breyer says in his book that he “saw in the administration of huge grant programs for religious education the potential for religious strife.”49 This “seeing” of a “potential” is a conjecture that unless voucher programs were permitted to go into effect would never be either confirmed or falsified. There is a parallel to Lochner. When it was decided in 1905, a body of respectable opinion held that laws limiting hours of work were enlightened measures that would improve the welfare of the working class at slight social cost. The question for the Supreme Court was whether to invalidate such measures on the ground that they deprived employers of “liberty of contract,” a term not found in the Constitution, in circumstances constituting a denial of “due process of law,” a term not obviously related to the content of a law as distinct from its form or from the circumstances of its enactment. Holmes pointed out in his dissent that to invalidate New York’s maximum-hours law would require the Court to choose between economic theories, for it could hardly be thought that the framers of the Constitution had made the choice for the Justices. By knocking down the law the Court killed a social experiment.
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+To foreclose social experiments adopted by elected legislatures is not only unpragmatic, it is undemocratic. Breyer votes more often than his conservative colleagues to uphold federal statutes, but his democratic credentials, as well as his commitment to federalism, are placed in question by his joining decisions such as Lawrence and Roper, in which the Court struck down state legislation, and by his dissent in Zelman. He is also an enthusiastic citer of foreign constitutional decisions, and that is a form of elitism, for decisions by foreign courts are not events in American democracy.50
+
+Fuzzy contours are a notable feature of Breyer’s constitutional doctrines, and he defends fuzziness in his book, arguing that “insistence upon clear rules can exact a high constitutional price.”51 He asks whether “three strikes and you’re out” laws, which can result in a criminal’s being sentenced to life even though his third crime was a minor one, such as a theft of golf clubs or videotapes, can be adjudged cruel and unusual punishment. The Court thought not.52 Breyer dissented. He acknowledges in his book that the position he advocated in his dissent “would leave the Court without a clear rule.”53 One is put in mind of his dissent in Eldred v. Ashcroft (see chapter 10), where he proposed that a statute extending a copyright term “lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective.”54 That is a standard to give standards a bad name. And it is a reminder that if judges are going to be occasional legislators—and Supreme Court Justices frequent legislators—they have to be able to formulate rules and standards that will provide the kind of guidance that explicit legislation provides.
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+Although Breyer is the Justice most knowledgeable about intellectual property in general and copyright in particular, his dissent in Eldred attracted no support from his colleagues; Justice Stevens, the other dissenter, did not join Breyer’s dissent. Breyer has confessed his inability to persuade his colleagues to his views about economic regulation,55 another field in which, like intellectual property, he has expert knowledge that his colleagues lack. He attributes his inability in part to his colleagues’ preference for “bright-line rules” in the law, which he thinks difficult to reconcile with economic reasoning because “economics often concerns gradations, with consequences that flow from a little more or a little less . . . I tend to disfavor absolute legal lines. Life is normally too complex for absolute rules.”56 But complexity is a reason for having rules. It is unpragmatic to ignore the economizing properties of rules.
+
+Breyer has said that judicial “independence is a state of mind. It reflects an indifference to improper pressure and a determination to decide each case according to the law.”57 I do not question the sincerity of his commitment to judicial independence, but I do wonder what the word “law” means to him. Unless one can take seriously his endeavor to derive “active liberty” from the Constitution, which one cannot, and thinks that Breyer can derive all his judicial votes from “active liberty,” hence giving them a constitutional pedigree, which is also out of the question, “law” for Breyer, or at least constitutional law, seems more his own creation than a body of thought external to his personal views. I am tempted to describe him as a bricoleur—one who uses “the instruments he finds at his disposition around him, . . . which had not been especially conceived with an eye to the operation for which they are to be used and to which one tries by trial and error to adapt them, not hesitating to change them whenever it appears necessary.”58 Breyer’s instruments include not only Athenian direct democracy and modern American pragmatism but also Ely’s “representation-reinforcing” theory of constitutional adjudication, Henry Hart’s “reasonable legislator” theory of statutory interpretation, Ronald Dworkin’s claim that constitutional and statutory provisions should be interpreted to make them the best possible statements of political morality,59 economic analysis, and deference to the conventional legal materials of precedent and statutory text. Such eclecticism leaves a judge with complete freedom to indulge his political instincts—liberal, conservative, or moderate—as it can accommodate any result that a judge might want to reach for reasons he might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion in the public sphere.
+
+Breyer is a nondoctrinaire liberal—which means, by the way, that you will not find in his book the constitutional “vision” for which some liberal law professors yearn.60 Whether you agree with his judicial approach is likely to depend on whether you agree with his politics—as is equally true, however, of his antagonists, and of his and their predecessors on the Supreme Court stretching back to John Marshall.
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+Judge McConnell states disapprovingly that Breyer wants to “place greater emphasis on ‘purposes’ and ‘likely consequences’ than on language, history and tradition.”61 “His emphasis on ‘workable outcomes’ and ‘real-world consequences,’ and his claim that his approach would avoid ‘seriously harmful consequences,’ evidently based on his own balance of costs and benefits, all tend to identify Justice Breyer as a pragmatist.”62 Actually he is an intermittent pragmatist whose pragmatism is heavily leavened with liberal political commitments—a combination that marks him as an heir of the legal realists. In articulating a comprehensive theory, Breyer is wearing a mask, the better to compete with the conservatives on their preferred plane of theory.
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+But they are wearing masks too, even though originalism and its sibling, textualism, like pragmatism—but unlike active liberty (or the ideology of “state neutrality” that, as I noted in chapter 4, Howard Gillman ascribes to the Justices of the Lochner era)—is not intrinsically political, although its motivation I take to be political, in the sense that the outcomes it is likely to produce will on the whole conform to the political preferences of the theorist and that otherwise he would not have adopted it. Originalism is easily unmasked. Here is an example of how easily. A potentially very great embarrassment for originalists, especially for those who, being or aspiring to become judges, lack the tenured academic’s freedom to be outrageous, is that the unflinching embrace of originalism would require overturning many cases that have achieved canonical status. Judge McConnell, a self-described textualist-originalist, is acutely aware of the problem. He lists as plausible examples of doctrines that violate his principles “protection against sex discrimination under the Equal Protection Clause, application of the Equal Protection Clause to the federal government, expansion of the Commerce Clause to permit federal regulation of intrastate commercial activity, or prohibition of gross malapportionment of state legislative districts.”63 But, he says, these questionable decisions are sanctified by “overwhelming public acceptance . . . This overwhelming public acceptance constitutes a mode of popular ratification, which gives these decisions legitimacy and authority.”64 He quotes James Madison’s admission that he changed his mind about the unconstitutionality of creating a national bank because he regarded “the acquiescence of the people at large . . . as a construction put on the Constitution by the nation.”
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+In other words, the Constitution can be amended by popular opinion, a view congenial to a politician, but not, one would have thought, to an originalist. There is no textual support, and as far as I know no relevant historical support either (Madison was writing almost 40 years after the constitutional convention), for such a heresy. What is more, it actually licenses political judging. For it says to the judge: if you think you understand the direction in which public opinion is moving, get out in front of the parade, decide the case without reference to originalist dogma, and if your political instincts are correct your decision will be accepted—including by originalists!
+
+Notice that McConnell does not list the application of the equal protection clause to public school segregation as an example of a ruling that violates originalist tenets. Although recognizing that “in the fractured discipline of constitutional law, there is something very close to a consensus that Brown was inconsistent with the original understanding of the Fourteenth Amendment,”65 McConnell set out to prove the consensus wrong, well aware of the stakes for the political and academic acceptability of originalism.66 The only evidence he turned up, however, was that most Republican Congressmen, in debates in the 1870s on civil rights legislation to implement the Fourteenth Amendment (which had been ratified in 1868), said they thought the amendment did entitle white children to go to black schools and black children to go to white schools. But there is nothing more treacherous, in the treacherous arena of legislative history, than postenactment legislative history, whereby the losers in the legislative arena hope to persuade the courts to give them the victory after all. (One has heard of winners’ history. This is losers’ history.) If postenactment history can be used to disambiguate a statute or a constitutional provision, a court has enormous discretion in interpretation. Judge McConnell is perhaps something new: a postoriginalist.
+
+A consistent originalist would say that if the Fourteenth Amendment required racial integration of the public schools, it would say so. There is nothing in the term “equal protection” that seems to forbid separation, even separation on grounds ordinarily considered invidious, such as sex and race, when for example it takes the form of separate restrooms for men and women or racial segregation in a prison to prevent a race riot; in such settings, “separate but equal” is no oxymoron. To prove that school segregation was tantamount to the arbitrary withdrawal of legal protection from blacks would thus have required evidence, and the plaintiffs in the Brown case had not offered much evidence. Everyone knew the social meaning of segregation, of course, but that is not the kind of “evidence” with which legalists, including, one would have thought, textualists-originalists, are comfortable. (Nor is it what McConnell relied on.) Writing after McConnell’s article was published, a leading student of the history of race law, Michael Klarman, concluded that “the original understanding of the Fourteenth Amendment plainly permitted school segregation . . . To the justices who were most committed to traditional legal sources, such as text, original intent, precedent, and custom, Brown should have been an easy case—for sustaining school segregation.”67
+
+What is strangest about McConnell’s analysis of Brown is his acknowledgment that when the Fourteenth Amendment was passed, “school desegregation was deeply unpopular among whites in both North and South, and school segregation was very commonly practiced,” but that “these were not ordinary times”; instead it was “a time when a political minority, armed with the prestige of victory in the Civil War and with military control over the political apparatus of the rebel states, imposed constitutional change on the Nation as the price of reunion, with little regard for popular opinion.”68 Originalists defend originalism as protecting democracy by preventing the courts from usurping legislative authority in the name of the Constitution; and recall that McConnell defends nonoriginalist precedents as democratically legitimate when ratified by popular acquiescence. But in his depiction, the Fourteenth Amendment, as interpreted to ban school segregation, is usurpative rather than democratic. He defends the interpretation by reference to the irrelevance of democratic preference. What one is seeing here is the theorist fixing his theory around a political imperative—a full-throated acceptance of the correctness of the Brown decision.
+
+Originalism is not a theory of judicial self-restraint, in the sense of limiting judicial encroachment on the powers of the other branches of government.69 And its manipulability makes one doubt even the core originalist claim that originalism reduces judicial discretion. There is a further reason to doubt it. There are two basic legalist tools for achieving a reasonable degree of certainty in a case law system. One is constitutional and statutory texts; the other is precedent. But these are in tension. An originalist has to be suspicious of precedent, because at best it is a judicial gloss of an authoritative text and at worst it is judicial creation ab nihilo. Justice Scalia’s acceptance of precedent is avowedly pragmatic. In a world governed by originalism, as in a civil law system (in which detailed legal codes make textualism a more feasible strategy than in our system), the role of precedent as a stabilizing force in the law would be diminished. Pragmatists, loose constructionists, and “living Constitution” buffs reject literal interpretation of authoritative texts, subordinating the language of the texts to their purpose. But they tend to have a greater respect for precedent than originalists do, because to them constitutional law is a creature of precedent rather than of text. Exaggerating for emphasis, we can say that one school seeks certainty in text and disparages precedent, and the other seeks certainty in precedent and disparages text. The first is methodologically Protestant (though many of its practitioners are Catholic), and the second is methodologically Catholic (though most of its practitioners are Protestant or Jewish). It is unclear that either school delivers more certainty, predictability, or stability to constitutional law than the other. The Supreme Court is divided at the moment between the two schools 4–4, with Justice Kennedy shuttling unpredictably between them.
+
+So can one take originalism—or any comprehensive theory of constitutional interpretation—seriously? One way to try to answer this question would be to compare the votes of politically aligned judges who espouse different judicial philosophies, such as Breyer (active liberty), Stevens (no discernible judicial philosophy, but leaning toward pragmatism), and Souter (no discernible judicial philosophy, but not very pragmatic); Scalia (originalist) and Rehnquist (no discernible judicial philosophy); Calabresi (Bickelian) and his colleague Jon Newman (again, no discernible judicial philosophy); McConnell (originalist) and any of his colleagues on the Tenth Circuit; Easterbrook (strongly originalist70) and Posner (pragmatic). My impression is that politically like-minded judges usually vote the same way despite their different judicial philosophies. Justice Scalia, in a passage I quoted in chapter 1, suggested that judges who have different philosophies tend nevertheless to agree in many cases because judges are “moderate,”71 and there is surely merit to the suggestion. But a more important factor is that judicial philosophies have little causal efficacy. They do not weaken the force of political preferences. They supply not “actionable” reasons but rationalizations for actions taken on other grounds, though a fuller test of this proposition would require comparing judges who have similar judicial philosophies but different political leanings (such as Justices Scalia and Ginsburg—both legalists), and asking whether their decisions tend to converge or, as I predict, diverge.
+
+
+1. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).
+
+2. “Judicial liberals have been playing defense for close to 40 years.” Linda Greenhouse, “On the Wrong Side of 5 to 4, Liberals Talk Tactics,” New York Times, July 8, 2007, § 4, p. 3.
+
+3. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997). It is a short book, all right, but it is not really his short book. His contribution to it is limited to a lead essay, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” id. at 3, and a reply to critics, id. at 129.
+
+4. Benjamin Constant, “The Liberty of the Ancients Compared with That of the Moderns,” in Political Writings 306 (Biancamaria Fontana trans. 1988). With reference to Rousseau, see id. at 319–320.
+
+5. Id. at 311–312.
+
+6. Isaiah Berlin, “Two Concepts of Liberty”, in Liberty 175 (Henry Hardy ed. 2002 [1958]).
+
+7. Josiah Ober, The Athenian Revolution: Essays on Ancient Greek Democracy and Political Theory 31 (1996); R. K. Sinclair, Democracy and Participation in Athens 68, 80 (1988). Some of the other Greek city-states were also democratic during this period.
+
+8. Constant, note 4 above, at 309–312, 314, 316.
+
+9. Sinclair, note 7 above, at 68–69, 80; John V. A. Fine, The Ancient Greeks: A Critical History 390–402 (1983). So even the Athenians flinched from the full implications of direct democracy. Sinclair, note 7 above, at 193–195; Richard A. Posner, Law, Pragmatism, and Democracy 154 (2003).
+
+10. Breyer, note 1 above, at 5. He even contrasts “active liberty” with “modern liberty.” Id. at 40–41.
+
+11. Id. at 137 n. 6.
+
+12. Berlin, note 6 above.
+
+13. Breyer, note 1 above, at 23.
+
+14. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
+
+15. Breyer, note 1 above, at 146 n. 14.
+
+16. Well illustrated by Akhil Reed Amar, “America’s Constitution and the Yale School of Constitutional Interpretation,” 115 Yale Law Journal 1997 (2006), and Akhil Reed Amar and Jed Rubenfeld, “A Dialogue,” 115 Yale Law Journal 2015 (2006). The “Yale School of Constitutional Interpretation” that Amar celebrates is completely unmoored from text and precedent; it is the current manifestation of the “bad boy” legal realism that I mentioned in chapter 4. For criticism, see Laurence H. Tribe, “Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation,” 108 Harvard Law Review 1221, 1240–1249 (1995).
+
+17. See, for example, Jack M. Balkin, “Abortion and Original Meaning” (forthcoming in Constitutional Commentary).
+
+18. “The belief that a judge’s job is to interpret rather than legislate retains considerable resonance. That may be why the justices have never undertaken to advance a rationale for their behavior. To declare openly what they are doing would be to throw gasoline on the smoldering debate about the legitimacy of the Court’s activism.” Robert H. Bork, “Enforcing a ‘Mood,’” New Criterion, Feb. 2006, p. 63.
+
+19. Breyer, note 1 above, at 21.
+
+20. Id. at 23.
+
+21. Or rather was; in 2005 the United Kingdom created a supreme court to replace the House of Lords Appellate Committee. Gary Slapper and David Kelly, The English Legal System 133–134 (8th ed. 2006).
+
+22. Breyer, note 1 above, at 46–47.
+
+23. Id. at 49 (emphasis in original).
+
+24. Id. at 50.
+
+25. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 149 (1992).
+
+26. United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
+
+27. Breyer, note 1 above, at 62,
+
+28. Michael W. McConnell, in a review of Breyer’s book, shows that Breyer systematically favors federal over state and local authority and argues that such favoritism is inconsistent with “active liberty.” McConnell, “Book Review,” 119 Harvard Law Review 2387, 2394–2397 (2006).
+
+29. Breyer, note 1 above, at 63.
+
+30. Id. at 64–65.
+
+31. Id. at 70.
+
+32. Bartnicki v. Vopper, 532 U.S. 514 (2001).
+
+33. Breyer, note 1 above, at 81.
+
+34. 539 U.S. 306 (2003).
+
+35. Id. at 332, quoted in Breyer, note 1 above, at 82.
+
+36. For various estimates, see M. I. Finley, Democracy Ancient and Modern 51 (1985); A. W. Gomme, The Population of Athens in the Fifth and Fourth Centuries B.C. 26 (1933) (tab. 1); Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology 93–94 (1999 [1991]).
+
+37. Breyer, note 1 above, at 82 (emphasis in original).
+
+38. McConnell, note 28 above, at 2405; Cass R. Sunstein, “Justice Breyer’s Democratic Pragmatism,” 115 Yale Law Journal 1719, 1731–1736 (2006).
+
+39. Breyer, note 1 above, at 99.
+
+40. See Aristotle, Rhetoric, bk. 1, § 13; W. G., “On Construing Statutes by Equity,” 6 American Law Register 513 (1858).
+
+41. Breyer, note 1 above, at 97–101. Breyer is borrowing here from Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1378 (William N. Eskridge, Jr., and Philip P. Frickey eds. 1994 [1958]).
+
+42. Breyer, note 1 above, at 101.
+
+43. 467 U.S. 837 (1984).
+
+44. Breyer, note 1 above, at 106.
+
+45. William N. Eskridge, Jr., and Lauren E. Baer, “The Supreme Court’s Deference Continuum: An Empirical Analysis (from Chevron to Hamdan)” (forthcoming in Georgetown Law Journal). The authors find that the government almost always wins cases turning on the interpretation of a statute, especially in areas in which the agencies have relevant expertise and the judges do not.
+
+46. Breyer, note 1 above, at 118. For systematic defenses of textualism, see John F. Manning, “What Divides Textualists from Purposivists?” 106 Columbia Law Review 70 (2006); Caleb Nelson, “What Is Textualism?” 91 Virginia Law Review 347 (2005).
+
+47. Breyer, note 1 above, at 118–119.
+
+48. 478 U.S. 186 (1986).
+
+49. Breyer, note 1 above, at 121–122.
+
+50. See chapter 12. As McConnell, note 28 above, at 2399, remarks: “I presume the ‘people’ whose active liberty is at issue are the American people. Either the foreign court decisions to which the Supreme Court refers are ‘consistent with the [American] people’s will’ as expressed in our laws, in which case references to foreign decisions are redundant, or those decisions are inconsistent with the people’s will, in which case giving them nontrivial weight would seem problematic from Justice Breyer’s own point of view.” The interior quotation is from Breyer, note 1 above, at 115.
+
+51. Breyer, note 1 above, at 128.
+
+52. Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11 (2003).
+
+53. Breyer, note 1 above, at 129.
+
+54. Id. at 245.
+
+55. Stephen Breyer, “Economic Reasoning and Judicial Review: AEI-Brookings Joint Center 2003 Distinguished Lecture” 2 (AEI-Brookings Joint Center for Regulatory Studies, 2004).
+
+56. Id. at 6–7.
+
+57. Stephen Breyer, “Judicial Independence: Remarks by Justice Breyer,” 95 Georgetown Law Journal 903, 904 (2007).
+
+58. Jacques Derrida, Writing and Difference 285 (1978). Borrowing from foreign law (see next chapter) has been described as a form of “bricolage.” See, for example, David Schneiderman, “Exchanging Constitutions: Constitutional Bricolage in Canada,” 40 Osgoode Hall Law Journal 401 (2002), and references cited there. Justice Breyer is an enthusiastic citer of foreign decisions as authority in American law.
+
+59. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996).
+
+60. See Greenhouse, note 2 above.
+
+61. McConnell, note 28 above, at 2390, quoting Breyer, note 1 above, at 8.
+
+62. McConnell, note 28 above, at 2408, quoting Breyer, note 1 above, at 115–116, 129.
+
+63. McConnell, note 28 above, at 2417.
+
+64. Id.
+
+65. Michael W. McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia Law Review 947, 952 (1995). See also McConnell, “The Originalist Justification for Brown: A Reply to Professor Klarman,” 81 Virginia Law Review 1937 (1995). Klarman’s response to McConnell’s article includes a powerful criticism of originalism as a theory of constitutional interpretation. Michael J. Klarman, “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell,” 81 Virginia Law Review 1881, 1915–1928 (1995).
+
+66. Michael W. McConnell, “The Originalist Case for Brown v. Board of Education,” 19 Harvard Journal of Law and Public Policy 457 (1996).
+
+67. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 26, 447 (2004) (emphasis in original).
+
+68. McConnell, “Reply to Professor Klarman,” note 65 above, at 1938–1939 (emphasis added).
+
+69. Keith E. Whittington, “The New Originalism,” 2 Georgetown Journal of Law and Public Policy 599, 609 (2004).
+
+70. See, for example, Frank H. Easterbrook, “Foreign Sources and the American Constitution,” 30 Harvard Journal of Law and Public Policy 223 (2006); Easterbrook, “Abstraction and Authority,” 59 University of Chicago Law Review 349, 372–378 (1992).
+
+71. Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 862 (1989). See note 60 in chapter 1.
+
+
+
+
+
+12
+
+
+
+
+
+Judicial Cosmopolitanism
+
+
+
+
+
+A debate is raging in judicial and academic circles over whether, or more precisely in what circumstances—for what purpose, to what end—the Supreme Court should cite a decision by an international or other foreign court.1 The qualifications are vital. Anything can be cited as a source of information bearing on an adjudication. Suppose a judge happened to read a decision of the German Constitutional Court concerning the right to an abortion and discovered in it a persuasive argument against abortion (or perhaps facts about the motives for or procedures of abortion) that he had not seen before; and suppose he wanted either to give credit where credit was due or simply to identify a source, because judges, like most other lawyers, are obsessive citers (a reflex designed to conceal the ungrounded character of much legal reasoning). Or the foreign decision might be material in a legal sense, for example because the contract on which the U.S. suit was based specified that it would be interpreted in accordance with the law of some foreign country. That would be a case in which foreign law would supply the rule of decision for an American case.
+
+International law, influenced or even created by foreign judicial decisions, can also be a basis for a claim or defense in an American court. Article I, section 8, of the Constitution authorizes Congress to “define and punish . . . Offences against the Law of Nations,” and the Alien Tort Claims Act authorizes suits in federal court to enforce tort claims based on violations of international law.2 Admiralty law is a body of international law enforced in our federal courts. An English decision from the eighteenth century might be cited to establish the original meaning of “cruel and unusual punishments” in the Eighth Amendment; this would be an example of noting a genealogical relation between foreign and U.S. law.
+
+These are examples of unexceptionable citation to foreign decisions. The debate is over the as yet relatively few3 cases in which a foreign decision is cited for its precedential effect by judges (more particularly Supreme Court Justices) searching for a global consensus on an issue of U.S. constitutional law. That search is the latest hopeless effort to ground controversial Supreme Court judgments in something more objective than the Justices’ political preferences. Earlier generations sought legal fixity in natural law, deemed universal and therefore suprapolitical. The quest failed because of unbridgeable disagreements on what the principles of natural law are, or at least on what they require in particular cases. A global judicial consensus might seem a reasonable approximation to such a principle.
+
+But this means treating foreign decisions as authority in an American court—that is, as having persuasive force just by virtue of being the decisions of recognized legal tribunals, never mind how compelling the tribunals’ reasoning is. So Justice O’Connor acknowledged when she said that “conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”4
+
+We need to distinguish, however, between a controlling authority and an authority that is not controlling. A decision by a higher court in the same judicial system, and, depending on the precise doctrine of precedent embraced by a court, an earlier decision by one’s own court, must be followed regardless of whether the current judges think it sound. No one supposes that foreign decisions should have that kind of authority. But often a court will cite a decision that lacks authority in the strong sense because it was rendered by a court in a different jurisdiction (it might be the decision of another state supreme court or another federal court of appeals, for example), but to which the court will give some weight by virtue of its having been decided by a sister court assumed to have similar values, traditions, and outlook. Apart from the intrinsic persuasiveness of the decision, just the fact that it is a decision by such a court carries some weight. If many sister courts have converged on a particular rule or doctrine, the fact of convergence will push a court confronted with the question for the first time toward the same result unless it has strong contrary feelings.
+
+There are grave objections to citing foreign decisions as authority even in the weak sense of the word. Some objections go to the heart of the question whether American judges should be searching for global consensus—what Justice Kennedy was in quest of in Lawrence and Roper. But I begin with a more mundane objection. It is the promiscuous opportunities that such a practice of citing opens up. The objection is brought into focus by the common judicial practice of limiting the classes of case that may be cited as precedents. Many courts in the United States do not permit an advocate to cite to them, as precedents, opinions that are not published in the official reports (mainly nowadays the volumes of case reports published by West Publishing Company). Such opinions receive less careful attention from judges than the ones they decide to publish, so allowing them to be cited as precedents would increase the amount of research that lawyers and judges would have to do, but without conducing to better decisions. The Supreme Court economizes on its time by giving little weight to decisions by the federal courts of appeals and the state supreme courts. Such decisions are rarely cited except to indicate what the state of the law was when the Supreme Court intervened. Yet the judicial systems of the United States are relatively uniform and their product readily accessible, while the judicial systems of the rest of the world are immensely varied (the world contains 192 nations besides the United States), and most of their decisions are difficult to access, as a practical matter, by our monolingual judges and law clerks. Were foreign decisions freely citable, any judge wanting a supporting citation would have only to troll deeply enough in the world’s corpus juris to find it, though there might well be doubts about just what he had found. Perhaps Justice Scalia would turn from denouncing the citation of foreign decisions by his court to casting his own net wide enough to haul in precedents supporting his views on homosexuality, abortion, capital punishment, and the role of religion in public life.
+
+The citing of foreign decisions in U.S. courts is additionally objectionable as one more form of judicial fig-leafing, of which we have enough already. Few judges are so cosmopolitan in outlook as to want to take their cues from foreigners. In politically fraught cases, such as Lawrence and Roper, judges take their cues from their personal experiences, values, intuitions, temperament, reading of public opinion, and ideology. None of these influences on adjudication at the highest level has been shaped by the study of foreign judicial decisions. Some foreign nations criminalize sodomy; others do not. Is it to be supposed that the Justices in Lawrence weighed the arguments made in other nations about the criminalization of sodomy?
+
+Judges are likely to cite foreign decisions for the same reason they prefer quoting from a previous decision to stating a position anew: they are timid about speaking in their own voices lest they make legal justice seem too personal. They are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they in fact are adopting on grounds other than deference to precedent. In-depth research for a judicial opinion is usually conducted after, rather than before, the judges have voted, albeit tentatively, on the outcome. Citing foreign decisions is an effort to further mystify the adjudicative process, as well as to disguise the political character of the decisions at the heart of the Supreme Court’s constitutional jurisprudence. The more political a court, the harder it tries to appear nonpolitical.
+
+Justice Scalia thus is consistent in crusading against the citing both of foreign decisions and of legislative history. Both are forms of window dressing.5 But when the window dressing is taken away, what is left? Scalia thinks it’s originalism. Actually it is more window dressing. The citation of foreign decisions, like the citation of legislative history, also has a wasteful, “arms race” character. If one judge starts citing such sources, opposing judges are placed under pressure to go digging in the same sources for offsetting citations. The net contribution to sound judicial decision making may be nil. But the citation of legislative history creates an additional and more serious arms race problem: legislators become motivated to produce tendentious legislative history in an effort to sway judicial interpretation, and their efforts beget responses by legislators who want to nudge judicial interpretation in a different direction.
+
+Furthermore, foreign decisions emerge from a complex social, political, historical, and institutional background of which most of our judges and Justices are ignorant.6 To know how much weight to give to the decision of the German Constitutional Court in an abortion case, you would want to know how the judges of that court are appointed and how they conceive of their role, and especially how German attitudes toward abortion have been shaped by peculiarities of German history, notably the abortion jurisprudence of the Weimar Republic, thought by some to have set the stage for some of Nazi Germany’s legal atrocities, such as involuntary euthanasia.7 The European rejection of the death penalty, which advocates of abolishing the death penalty in the United States cite as evidence of an emerging international consensus that ought to influence our Supreme Court, is related both to the past overuse of it by European nations (think of the executions for petty larceny in eighteenth-century England, the Reign of Terror in France, and the rampant employment of the death penalty by Nazi Germany and the Soviet Union) and to the less democratic cast of European politics, which makes elite opinion more likely to override public opinion there than in the United States.
+
+To cite foreign law as authority is to suppose fantastically that the world’s judges constitute a single community of wisdom and conscience. That is the position the Justices are gesturing toward when they try to justify their citation of foreign decisions as authority by invoking a “decent respect to the opinions of mankind,”8 a phrase in the Declaration of Independence that they have taken out of context and by doing so have inverted its meaning.9 The Supreme Court Justices, or at least those who like to cite foreign courts, are sophisticated cosmopolitans who naturally are influenced by what they know of what other countries do. But are they not arrogant, even usurpative, in trying to impose their cosmopolitan values on Americans in the name of our eighteenth-century Constitution?
+
+A neglected institutional difference between the U.S. Supreme Court and foreign constitutional courts is that it is easier in most other countries to nullify by constitutional amendment the ruling of a constitutional court. It can usually be done by a legislative supermajority.10 Rarely is there anything that corresponds to the biggest hurdle to nullifying a constitutional ruling of our Supreme Court—the requirement that three-fourths of the states ratify a proposed constitutional amendment after a two-thirds vote in both houses of Congress in favor of it. The easier it is to overrule a constitutional decision by amending the constitution, the less cautious, the less respectful of public opinion and strong disagreement a constitutional court can afford to be. Just as dogs bark more ferociously when they are behind a fence, judges indulge their personal views more blatantly when they know they do not have the last word. Think of the uncomfortable position in which Justices Black and Douglas would have found themselves had their dissenting position that obscenity is fully protected by the First Amendment commanded the assent of a majority of the Justices. Our Justices are fooled if they think that all the audaciously progressive opinions expressed by foreign constitutional judges would be the same if those judges had the power our Justices have.
+
+The decisive objection to citing foreign decisions as authority is the undemocratic character of the practice. Even decisions rendered by judges in democratic countries, or by judges from those countries who sit in international courts, are outside the U.S. democratic orbit. This point is obscured because we think of our courts as “undemocratic” institutions. That is imprecise. Not only are most state judges elected, but federal judges are appointed and confirmed by elected officials, the President and the members of the Senate. So even our federal judges have a certain democratic legitimacy. The judges of foreign countries, however democratic those countries may be, have no democratic legitimacy in the United States. The votes of foreign electorates are not events in our democracy.
+
+I am not suggesting that our judges should be provincial and ignore what people in other nations think and do. Just as our states are laboratories for social experiments from which other states and the federal government can learn, foreign nations are laboratories from whose legal experiments we can learn. The problem is not learning from abroad; it is treating foreign judicial decisions as authority in U.S. cases, as if the world were a single legal community.
+
+The yen to cite foreign decisions is part of a movement—call it “judicial cosmopolitanism”—that treats the entire world as if it were one judicial jurisdiction. The problems with such an approach go far beyond citation practices and are well illustrated by two books—one by a Canadian law professor, David Beatty, and one by an Israeli judge, Aharon Barak—that I shall discuss. But in criticizing judicial cosmopolitanism I shall be taking no position on the validity of the philosophical concept of cosmopolitanism, with which the judicial concept is easily confused. The philosophical concept has a long and distinguished lineage that runs from Diogenes the Cynic to Martha Nussbaum, through the Stoics, Cicero, Grotius, Kant, and many other notables. Epitomized by Diogenes’ term “citizen of the world,” it teaches that our duties to other human beings do not stop at the border; that our common humanity transcends, or at least rightly competes with, loyalties to family, friends, co-ethnics, co-nationals, and others with whom we have “local” ties, psychologically and politically important though these ties are.11 Nowadays it is most often advanced as an argument in favor of generous foreign assistance by rich nations.12 It has nothing to do with whether American judges should be taking their cues from judges in other nations, even if our common humanity is believed to underwrite a universal natural law that should guide courts, as some cosmopolitan philosophers, Kant for example, have believed.13 Whatever the source or content of natural law, to think it a proper recourse for the Supreme Court or evidenced by foreign judicial decisions is a leap not justified by anything in philosophical cosmopolitanism. Kant’s concern with “cosmopolitan right—one’s willingness to do what is required by the general principle of sharing this limited world with others”14—is as remote from the current issue of judicial cosmopolitanism as international charity is.
+
+David Beatty entitles his defense of judicial cosmopolitanism The Ultimate Rule of Law,15 and the adjective primes us to expect an augmented concept of the rule of law. Traditionally, as we know, the term has meant two distinct though related things: that legal cases are to be decided according to their legal merits rather than according to the personal merits of the litigants (this is the law’s impersonality and the judge’s duty of disinterestedness); and that even the highest officials in society are subject to the law rather than being above (immune from) it. A corollary of the second sense is that unless the law is reasonably clear, so that it can guide judges in applying it and provide a basis for monitoring judicial conformity to the law, judges will perforce be deciding cases on something other than legalist grounds. They will be the nation’s rulers rather than the law’s servants. The threat that unclear laws pose to the rule of law is especially acute in the case of constitutional adjudication when the highest judges are exercising final authority without guidance from the constitutional text or other sources external to their own will on how to exercise it.
+
+Beatty is aware of the problem and offers the following surprising solution: Judges dealing with constitutional issues are not to attend to the constitutional text, to precedents (“in constitutional cases, precedents are at best superfluous”16), or to analogies. They are not to think of their task as interpretive at all. They are to attend exclusively to the facts of the case. Beatty argues that although constitutions differ greatly from one another “none of this rich variation in constitutional texts . . . has had any effect on the way judges think about laws that intentionally provide more training and employment opportunities for men than women. All the details and adornments that are so important to those who negotiate and draft constitutions and international human rights treaties have absolutely no bearing on how these cases are resolved.”17 That does not trouble Beatty because “when judges are prepared to look at all the facts of a case honestly and impartially, they have no difficulty seeing and doing what is right”18—and he means legally right.
+
+Beatty considers his approach a form of pragmatism, though his preferred term is “proportionality”: “Proportionality makes pragmatism the best it can possibly be.”19 This is not an idiosyncratic renaming; “proportionality” is a standard commonly used by courts outside the United States,20 and we recall that it has been appropriated by Justice Breyer, our most cosmopolitan Supreme Court Justice. To pass constitutional muster, Beatty argues, a law must represent a proportional, rather than an excessive, response to some perceived social need. Proportionality so understood is indistinguishable from the quintessential pragmatic technique of balancing competing interests.
+
+Beatty claims that fact-based adjudication will yield an objective resolution of constitutional issues in the sense of a resolution unaffected by ideology or emotion. “When judges remain completely detached from the substantive values that are at stake in a case, and take seriously all the evidence that shows what a law really means for those it affects most, the cases show that the right answer is usually pretty clear.”21 He therefore disparages efforts to create constitutional theories that generate substantive results, confident that judges guided by facts will converge more or less automatically on outcomes of which he approves. About “originalism” he comments pungently that “directing judges to resolve the flashpoints of social conflict in their communities against the understandings of people who lived as long as two hundred years ago, leaves them, it turns out, free to come down on whatever side of a case their consciences tell them is right.”22 He points out that adopting Dworkin’s moral theory of constitutional interpretation would make “the people lose control of the moral development of their communities to a professional elite.”23 With the aid of such examples Beatty argues convincingly that constitutional adjudication cannot be made objective, impersonal, and apolitical by a demonstration that there is one correct constitutional theory.
+
+So judges should take their cue not from theorists—all of whom are easily refuted—but from their own practices, which mainly involve, Beatty insists, finding facts. He instances the common law: “The great genius of this ancient legal tradition is its pursuit of theory and overarching principles from the bottom up.”24 It is “the method of induction.”25 He contends that this is not only how courts should approach constitutional adjudication but how they do approach it. For evidence he takes the reader on a tour of the world’s constitutional courts, arguing that despite differences in the wording of constitutional texts, in legal culture, in doctrine and precedent, and so forth, the courts come up with remarkably uniform results, though the U.S. Supreme Court is a frequent outlier. About all that the cases have in common is similar facts, so it must be, he concludes, the facts that are driving the outcome.
+
+Beatty is thus the heir of those legal realists who thought that facts were all that drove judicial decisions. He is mindful, however, of the “is-ought” problem that such an approach gives rise to. How can a study of facts alone, however searching and scrupulous, generate a conclusion that the position of one of the parties to a case is right and the position of the other is wrong, without a normative framework? He never answers this question directly. But he seems to think that proportionality just happens to be the legal norm on which the global judicial community has converged. The world is a pretty big place, though, and Beatty cites decisions from only 15 of its 193 nations (plus decisions of 2 European tribunals and 1 United Nations tribunal). And 11 of the 15 are former British possessions. This is not a representative sample of world judicial opinion.
+
+Yet he may be right that the highest judges in most countries are paying relatively little attention to what their countries’ constitutions actually say. The United States is such a country. But people who recognize this judicial insouciance usually conclude that the judges are stepping out of line and forgetting that they have less democratic legitimacy than the legislative and executive branches of government. Beatty, however, revels in the fact (if it is a fact) that “people all over the world have chosen to put courts at the centre of their systems of government.”26 He likes this because while interpretivism may in practice be quite unconstrained,27 as he argues convincingly, fact-based adjudication is not because for him there is always a fact of the matter that once found resolves the case. It is a fact that the state should provide financial support for religious schools, a fact that the state must recognize homosexual marriage, and so on. Since all that judges are doing is finding facts, their activity is apolitical. They are not competing with the elected officials whose acts they invalidate in the name—but it is only in the name—of the constitution.
+
+The facts speak to Beatty more clearly than they will to many of his readers because what he considers facts others would describe as opinions. For example, he commends the German Constitutional Court for having ruled that Bavaria “does no wrong if it allows voluntary prayers to be spoken in its schools but it does if it affixes crucifixes to classroom walls” because “for non-Christian students, the sectarian nature of the cross and the fact that they could never escape its glare made its force much more powerful than voluntary prayers.”28 Without more detail concerning the court’s analysis, which Beatty does not supply, this sounds like an arbitrary judgment precariously perched on the odd choice of the word “glare” to describe the appearance of a crucifix.
+
+He applauds the Japanese Supreme Court for having permitted a local government to make a financial contribution to a Shinto groundbreaking ceremony for a public gymnasium.29 He remarks that “most people, including those on the city council who voted for the expenditure, regarded it primarily as a secular ritual dedicated to the safe construction of the gymnasium that lacked a religious meaning of any significance.”30 In other words, the court was denying the religious significance of the ceremony, just as an American court would be inclined to deny the religious significance of the intonation of “God save the United States and this honorable court” that opens its sessions. Still, it would be remarkable in the American context to authorize public expenditures for elaborate religious ceremonies. The Shinto case transports the American reader to a disorientingly different political culture. The groundbreaking ceremony was sponsored by the city’s mayor, presided over by four Shinto priests, involved a Shinto altar and other sacred Shinto objects and purification rituals involving the spectators, and lasted 40 minutes.
+
+Shinto had been the Japanese state religion until the United States occupied Japan at the end of World War II and had been intolerant of other religions. Despite this history and the emphatically religious character of the groundbreaking ceremony, the Japanese Supreme Court ruled that because “the average Japanese has little interest in and consciousness of religion” (with many of them indeed believing in both Shinto and Buddhism, as a result of which “their religious consciousness is somewhat jumbled”), and because Shinto is not a proselytizing religion, “it is unlikely that a Shinto groundbreaking, even when performed by a Shinto priest, would raise the religious consciousness of those attending or of people in general or lead in any way to the encouragement or promotion of Shinto.”31 It is apparent that the decision depends on particulars of Japanese culture rather than on general principles that an American or Canadian court might draw on.
+
+Beatty’s faith in the objectivity of fact-based adjudication stems from a belief that “factual claims can be tested for how accurately they conform to an independent empirical world, as it actually exists.”32 But this is rarely done, or doable, in the adjudicative context. One will have sensed already a rather casual attitude on Beatty’s part, as on that of the courts whose decisions he discusses, toward empirical testing. He is not above criticizing judges for “inflating the importance of facts”33 and “decreeing what facts mattered the most”34—as if it were possible to conduct fact-based adjudication without making judgments of relevancy. Beatty himself does this when he states in defense of a U.S. Supreme Court decision striking down state residency requirements for entitlement to welfare benefits that “need, not length of residence, is the proper criterion for distribution.”35 He overlooks the fact that a likely consequence of outlawing state residency requirements is to induce states that provide generous welfare benefits to reduce them, lest the state become a magnet for poor people in other states.
+
+He is willing to resolve constitutional issues by shifting the burden of proof to the side whose position he disfavors, as when he notes with approval that “laws that regulate how people do their work are more likely to be found wanting where it cannot be shown that they advance the well-being of the community in some significant way,”36 or when he says that “no evidence is ever provided that would support the claim that if gays and lesbians had the same rights and freedoms as heterosexual couples, . . . the moral character of the community and especially its young would be threatened in any way.”37 He does not explain why the burden of presenting convincing evidence should rest on the defenders of the challenged marriage laws rather than on the attackers.
+
+In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court “noted the lack of ‘concrete’ and ‘actual or significant’ evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way.”38 He does not require that there be “concrete” and “actual or significant” evidence that homosexuals are harmed by the exclusion. Nor is he bothered by a lack of concreteness when he says that “laws that establish a broadcasting system [must] guarantee that the full spectrum of opinion in the community will be heard.”39 What is “the full spectrum” of opinion, and who is to decide? Must every lunatic have access to a broadcast studio? Beatty contends that government has a constitutional duty to subsidize religious schools but “may make funding conditional on religious schools agreeing to teach the same curriculum that is used in state-run schools.”40 If the curriculum is identical, in what sense are they religious schools? He also says that “proportional funding remains scrupulously neutral as between the competing pedagogical philosophies of secular majorities and religious minorities.”41 But a religious school cannot implement its pedagogical philosophy if it must teach the curriculum specified for public schools.
+
+He argues that “there is no legal basis to permit traditional marriage laws [banning homosexual marriage] remaining in force for even one more day,” since the “evidence” in favor of permitting homosexual marriage is as “one-sided” as the evidence for permitting homosexual sodomy.42 The only “evidence” he gives is that “it is no longer possible to argue that allowing [homosexuals] to swear a legal oath of marriage will have a tangible effect on anyone else’s welfare or well-being.”43 What about intangible effects? Remember that Beatty insists that judges should decide constitutional cases without regard to substantive values. John Stuart Mill’s philosophy of tolerance for acts that, though they may offend, inflict no tangible harm on third parties is substantive and controversial.
+
+Beatty’s assessments of specific case outcomes are generated not by testable (let alone tested) factual claims but by such ideological assertions as that in law “liberty and equality . . . mean exactly the same thing. Regardless of whether a law is attacked under the banner of equality or liberty, its legitimacy and its life depend on whether it can pass a rigorous evaluation of its ends, its means, and its effects against the principle of proportionality that connects all three.”44 (Notice the burden shifting implicit in the word “rigorous.”) Indeed, he claims that “liberty, equality, and fraternity all mean the same thing.”45 Within a page of stating that “ethical and prudential arguments [in constitutional cases] make no sense,” he equates “proportionality” to a “universal principle of distributive justice that is controlling in all constitutional democracies and determinative of all human rights.”46 Elsewhere he suggests that “proportionality” means “entitlements to fair shares of whatever is being legislated.”47 Yet he also concedes that “what is just, what is in proper proportion, in any case is particular to each community.”48 And hence it is proper to restrict abortion more in Ireland than in Japan.49 But then why is it not proper to limit homosexual marriage in Alabama though not in Massachusetts?
+
+Pragmatic judges will agree with Beatty that consequences should be front and center in the adjudicative process, but not that the only consequences worth considering are the consequences for the people immediately affected by a judicial decision. Institutional consequences should also be considered, and they include the damage to the democratic process, and to the law’s stability, that would be inflicted by a wholehearted embrace of Beatty’s program of fact-based, law-free constitutional adjudication. There would be a breathtaking expansion of judicial power at the expense of the power of drafters and ratifiers of constitutions, legislators, other officials, and the public at large. And because judges would be constrained only by their commitment to impartial factual inquiry, and not by any text (constitutional, legislative, or judicial), because the practical limits of adjudication prevent a deep judicial engagement with the facts bearing on constitutional controversies, and because those facts will differ unpredictably from case to case, lawyers and lower-court judges would be utterly at sea in trying to figure out how future disputes should be resolved.
+
+Still, Beatty’s criticisms of constitutional theorists are spot-on. And he vindicates his faith in the power, or at least the potential power, of judicial engagement with facts in a number of his discussions of specific cases. Thus he points out that the maximum-hours law invalidated in Lochner v. New York50 had been intended to put small nonunion bakers out of business.51 And he notes that despite the holding in Employment Division v. Smith52 that the free exercise of religion does not embrace the use of peyote in American Indians’ religious ceremonies, a number of states had made an exception to their drug laws to permit such use, without the sky falling.53
+
+But the greatest interest of Beatty’s book lies elsewhere—lies in its unintended cautionary function. The book is a warning against dissolving legal pragmatism into “only the facts, ma’am” adjudication. Legal pragmatism is disciplined by a structure of norms and doctrines, commonly expressed in standards such as negligence, good faith, and freedom of speech, that tells judges what consequences they can consider and how (in what relation to each other, for example). Take away the framework and what judges do does not merit the word “law.” In the arresting glimpse that it gives of an emerging global community of aggressively interventionist constitutional judges, Beatty’s book warns us against hopping too quickly on the world-law bandwagon.
+
+One of the most prominent of the aggressively interventionist foreign judges is Aharon Barak, a long-serving justice (eventually chief justice) of the Supreme Court of Israel, recently retired. He is a world-famous judge who dominated his court as completely as John Marshall dominated our Supreme Court. Were there a Nobel Prize for law, Barak would probably have been an early recipient. Yet his book on judging54 is Exhibit A for why American judges should be wary about citing foreign judicial decisions or, more broadly, about taking their cues from foreign judges on the theory that the judges of the highest courts of all civilized countries constitute a loose-knit community something like that constituted by the supreme court justices of all the states in the United States. Although Barak is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely and, to an American, weirdly different juristic universe.
+
+Robert Bork has said that Barak “establishes a world record for judicial hubris.”55 Barak is John Marshall without a constitution to expound. Israel does not have a constitution in the usual sense. The Knesset (the Israeli parliament) has passed several “basic laws,” one of which—Basic Law: Human Dignity and Freedom—provides that “the life, body or dignity of any person shall not be violated” and that “every person is entitled to protection of his life, body and dignity.”56 But while the Knesset can call some of its laws “basic” if it wants to, there is grave doubt that it is authorized to promulgate constitutional as well as ordinary statutory provisions.57 This may be why Barak’s book contains barely any references to the “constitutional” text.
+
+Yet without a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court Justices. He puts Marshall, who did less with much more, in the shade. (He borrowed from Marshall the trick of first announcing a novel rule in a case in which he concludes that the rule does not apply, so that people get accustomed to the rule before it begins to bite them.) Among the rules of Israeli law that Barak’s judicial opinions have been instrumental in creating are that any citizen can ask a court to block illegal action by a government official even if he is not personally affected by it (that is, even if he lacks “standing to sue” in the U.S. sense); that any government action that is “unreasonable” is illegal (“put simply, the executive must act reasonably, for an unreasonable act is an unlawful act”58); that a court can forbid the government to appoint an official who has committed a crime, even though he has been pardoned, or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of “human dignity” a court can order the government to alleviate homelessness and poverty;59 and that a court can countermand military orders, decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal,’”60 and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.61 These are powers that a nation could grant its judges. For example, many European nations and even some U.S. states authorize “abstract” constitutional review—that is, judicial determination of a statute’s constitutionality without waiting for a suit by someone actually harmed by the statute. But only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon’s taking the imperial crown out of the Pope’s hands and crowning himself.
+
+Barak bases his conception of judicial authority on abstract principles that in his hands are merely plays on words. The leading abstraction (reminiscent of Breyer’s Active Liberty) is “democracy.” Political democracy in the modern sense means a system of government in which the key officials stand for election at relatively short intervals and thus are accountable to the citizenry. A judiciary that is free to override the decisions of those officials curtails democracy. For Barak, however, democracy has a “substantive” component, namely a set of rights (“human rights” not limited to political rights, such as the right to criticize public officials, that support democracy), enforced by the judiciary, that clips the wings of elected officials.62 This is not a justification for a hyperactive judiciary, but merely a redefinition of it. Notice the parallel to Justice Breyer’s conflation of liberty and democracy in his notions of “active liberty,” “the liberty of the ancients,” and our “democratic Constitution.”
+
+Another portmanteau word that Barak abuses is “interpretation.” To him it is a practice remote from a search for the meaning intended by the authors of legislation. He says that the task of a legislature in passing statutes is to “bridge the gap between law and society” and the task of the judge in interpreting a statute is to “ensure that the law in fact bridges the gap between law and society.”63 This is very odd—isn’t the statute the law, rather than the intermediary between the law and society? What he seems to mean, as further suggested by his statement that “whoever enforces one statute enforces the whole legal system,”64 is that a statute should be interpreted to harmonize with the spirit or values of the legal system considered as a whole. But in practice that means with the judge’s ideal system, as no real legal system has a unitary spirit or common set of values. Alternatively, the judge should consider the statute’s “objective purpose . . . to realize the fundamental values of democracy,”65 with “objective” having nothing to do with legislative intent. So a regulation that authorizes military censorship of publications that the censor “deems likely to harm state security, public security, or the public peace” was interpreted by Barak’s court to mean “would create a near certainty of grave harm to state security, public security, or public peace.”66 The court treated the statute as a first draft that the judges were free to rewrite.
+
+Barak invokes the “separation of powers” as further support for his conception of the judicial role. What he means by the term is that the executive and legislative branches are to have no control over the judicial branch. What we mean by separation of powers, so far as judicial authority is concerned, is that something called the judicial power of the United States has been consigned to the judicial branch. That does not mean that the branch is independent of the other branches. If each of the powers (executive, legislative, and judicial) were administered by a branch that was wholly independent and thus could ignore the others, the result would be chaos. The branches have to be mutually dependent in order to force cooperation. So “separation of powers” implies “checks and balances,” and the judicial branch has to be checked by the other branches and not just do the checking. The President nominates and the Senate confirms (or rejects) federal judges, and the Congress fixes their salaries and the courts’ budgets, regulates the Supreme Court’s appellate jurisdiction, decides whether to create other federal courts, and can remove judges by impeachment. The judicial power of the United States can be exercised only in suits brought by persons who have standing to sue in the sense of having a tangible grievance that can be remedied by the court. And because the judicial power is not the only federal power—there are executive and legislative powers of constitutional dignity as well—the judiciary cannot tell the President whom to appoint to his cabinet.
+
+Armed with such abstractions as “democracy,” “interpretation,” “separation of powers,” “objectivity,” “reasonableness” (it is the concept of “reasonableness” that Barak would have used to adjudicate the “package deal” for the release of the terrorist), and (of course) “justice” (“I try to be guided by my North Star, which is justice. I try to make law and justice converge, so that the Justice will do justice”67), the judiciary is a law unto itself.
+
+Barak’s jurisprudence may seem to hold no interest for Americans other than as an illustration of the world’s diversity. In reality it bears importantly on the issue of whether American judges should cite foreign cases as authority. Some of our judges, as we know, think that just the fact that a foreign court has decided a case in a certain way entitles the decision to some, though perhaps not a great deal of, weight in deciding a factually similar American case. But what we learn from Barak’s book is that some foreign legal systems, even the legal system of a democratic nation that is a close ally of the United States, are so alien to our own system that their decisions ought to be given no weight by our courts. American judges distinguish between how they might vote on a statute if they were legislators and whether the statute is unconstitutional; they might think it a bad statute yet uphold its constitutionality. But in a Barakian court it would be impossible to tell whether a judgment of unconstitutionality was anything more than the judges’ opinion that it was a dumb statute, something they would have voted against had they been members of the legislature that enacted it. Such an opinion would have no significance for issues of constitutionality in our system.
+
+When Bork attributed “judicial hubris” to Barak he was using as his benchmark the American system. Many Israelis think Barak hubristic,68 but whether he is or is not in the Israeli setting is irrelevant to Bork’s judgment. All Bork means is that a judge who thinks like Barak is playing outside the boundaries within which American judges operate. There are plenty of hubristic American decisions, but their authors make some effort to tether them to orthodox legal materials, such as the constitutional text. The tether is often long and frayed—when for example a judge decides that criminalizing abortion or refusing to grant a marriage license to a homosexual couple is a deprivation of liberty without due process of law, or upholds an antiabortion law on the ground that a mother’s love for her child epitomizes respect for human life. So there is a sense in which Barak merely carries to its logical extreme a tendency already manifest in the decisions of supreme courts in the United States. It is a matter of degree. But at some point a difference in degree can rightly be called a difference in kind.
+
+Barak’s book is not introspective. He purports to derive his judicial approach from the abstractions I mentioned, but they cannot be the real source of the approach. For they are empty verbiage, as when Barak says that “other branches [of government] seek to attain efficiency; the courts seek to attain legality.”69 Or when, in defending a ruling made during the 1991 Gulf War requiring the Israeli army to distribute more gas masks to residents of the West Bank, he says that “we [the court] did not intervene in military considerations, for which the expertise and responsibility lie with the executive. Rather, we intervened in considerations of equality, for which the expertise and responsibility rest with the judiciary.”70 Elsewhere in the book he defends judicial balancing of competing interests, and it is obvious that in the gas mask case the court had to balance against considerations of equality whatever military reasons the army gave for distributing fewer gas masks on the West Bank than in Israel proper, such as that Iraq was more likely to aim its missiles at Jews than at Arabs. A few pages after discussing the gas masks Barak says inconsistently that when deciding whether to invalidate a security measure “the court asks if a reasonable person responsible for security would be prudent to adopt the security measures that were adopted.”71
+
+All this is not to say that Barak was a bad judge or is a bad constitutional theorist. For although like most legal theorists he purports to be discussing the law at large rather than his own local law, also like most theorists it is really the latter that is his subject. Legal thinking does not cross national boundaries easily72—that is the main point of this chapter. Barak is by all accounts brilliant, as well as austere and high-minded—Israel’s Cato. Israel is an immature democracy, poorly governed; its political class is mediocre and corrupt; it floats precariously in a lethally hostile Muslim sea—and it really could use a constitution. Barak stepped into a political and legal vacuum and with considerable ingenuity generated a series of, in Laurence Tribe’s words on the dust jacket of Barak’s book, “surprisingly agreeable outcomes.” Barak was a legal buccaneer—and maybe that was what Israel needed, and perhaps still needs.73 Of course, there is no acknowledgment of this in the book. Barak writes not only without self-doubt but also without a sense that his jurisprudence may reflect local, even quite personal, conditions and experiences. He survived the Holocaust as a child in Lithuania. This can help us understand his approval of an Israeli law that would be thought unacceptably illiberal in the United States: that no candidate of an antidemocratic party can be permitted to stand for election to the Knesset—for the Nazi Party came to power in Germany democratically. Like our judges, Aharon Barak is a prisoner of his experiences.
+
+
+1. See Austen L. Parrish, “Storm in a Teacup: The U.S. Supreme Court’s Use of Foreign Law,” 2007 Illinois Law Review 637 (2007); Mark C. Rahdert, “Comparative Constitutional Advocacy,” 56 American University Law Review 553 (2007); John O. McGinnis and Ilya Somin, “Should International Law Be Part of Our Law?” 59 Stanford Law Review 1175 (2007); James Allan, “Jeremy Waldron and the Philosopher’s Stone” (University of Queensland Faculty of Law, Feb. 2007, forthcoming in San Diego Law Review); Mark Tushnet, “When Is Knowing Less Better Than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law,” 90 Minnesota Law Review 1275 (2006); James Allan and Grant Huscroft, “Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts,” 43 San Diego Law Review 1 (2006); Jeremy Waldron, “Foreign Law and the Modern Ius Gentium,” 119 Harvard Law Review 129 (2005); David S. Law, “Generic Constitutional Law,” 89 Minnesota Law Review 652 (2005); Roger P. Alford, “In Search of a Theory for Constitutional Comparativism,” 52 UCLA Law Review 639 (2005); Ken I. Kersch, “The New Legal Transnationalism, the Globalized Judiciary, and the Rule of Law,” 4 Washington University Global Studies Law Review 345 (2005).
+
+2. 28 U.S.C. § 1350.
+
+3. David Zaring, “The Use of Foreign Decisions by Federal Courts: An Empirical Analysis,” 3 Journal of Empirical Legal Studies 297 (2006).
+
+4. Sandra Day O’Connor, “Proceedings of the Ninety-Sixth Annual Meeting of the American Society of International Law: Keynote Address,” 96 American Society of International Law Proceedings 348, 350 (2002).
+
+5. On legislative history, see, for example, R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 253 (1994) (“little more than window dressing”). Which brings to mind the following joke. A devout Jew is startled, walking past the office of the local mohel (the person who performs circumcisions in accordance with Jewish law), to see pocket watches displayed in the window. He enters and says, “Mohel, why are you displaying watches in your window?” The mohel replies, “What would you like me to display?”
+
+6. As argued in Ruti Teitel, “Comparative Constitutional Law in a Global Age,” 117 Harvard Law Review 2570 (2004), reviewing Norman Dorsen et al., Comparative Constitutionalism: Cases and Materials (2003).
+
+7. Richard E. Levy and Alexander Somek, in their article “Paradoxical Parallels in the American and German Abortion Decisions,” 9 Tulane Journal of International and Comparative Law 109, 115–116 (2001), discuss the German Constitutional Court’s “repeated emphasis,” in cases involving abortion, “on the negative example set by Nazi-Germany.”
+
+8. See, for example, Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting from denial of certiorari).
+
+9. As Eugene Kontorovich explains,
+
+The Declaration actually says that “a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” In other words, America should give reasons for its actions. The Declaration is a public-relations document designed to explain and justify the colonists’ actions. This is the opposite of the spin put on it by internationalist lawyers, who say it shows that we “learn from others.” Rather, the Declaration seeks to teach other nations . . . In 1776, there was no basis in international law for throwing off the rule of a sovereign monarch. Doing so contradicted the dominant opinion of nations, which were themselves monarchies. Had the colonists taken the court’s approach [in Roper v. Simmons], they would have said, “Well, everyone else is doing taxation without representation, there must be something to it.”
+
+
+
+
+
+Kontorovich, “The Opinion of Mankind,” New York Sun, July 1, 2005, p. 9. See also Kontorovich, “Disrespecting the ‘Opinions of Mankind’: International Law in Constitutional Interpretation,” 8 Green Bag (2d ser.) 261 (2005).
+
+10. Of the 47 countries that have a constitutional court for which the requisite data are available, 79 percent allow a two-thirds vote by the legislature to overrule a decision. See Venice Commission, “Decisions of Constitutional Courts and Equivalent Bodies and Their Execution,” March 9–10, 2001, www.venice.coe.int/docs/2001/CDL-INF(2001)009-e.asp (visited May 2, 2007), as supplemented by other Web sites, such as the University of Richmond’s Constitution Finder, http://confinder.richmond.edu (visited May 2, 2007), that contain foreign constitutional texts.
+
+11. On philosophical cosmopolitanism, see, for example, The Political Philosophy of Cosmopolitanism (Gillian Brock and Harry Brighouse eds. 2005); Martha C. Nussbaum, “Duties of Justice, Duties of Material Aid: Cicero’s Problematic Legacy,” 8 Journal of Political Philosophy 176 (2000).
+
+12. See, for example, Gillian Brock, “Egalitarianism, Ideals, and Cosmopolitan Justice,” 36 Philosophical Forum 1 (2005).
+
+13. David Held, “Principles of Cosmopolitan Order,” in The Political Philosophy of Cosmopolitanism, note 11 above, at 25–27. See generally Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (James Bohman and Matthias Lutz-Bachmann eds. 1997).
+
+14. Jeremy Waldron, “What Is Cosmopolitan?” 8 Journal of Political Philosophy 227, 242 (2000).
+
+15. David M. Beatty, The Ultimate Rule of Law (2004).
+
+16. Id. at 90.
+
+17. Id. at 81.
+
+18. Id. at 112. Or as he puts it elsewhere, “Everyone’s interests are better served when the courts base their decisions on a close and careful evaluation of the facts than when they spend most of their energy trying to divine answers from the words of the text.” Id. at 57.
+
+19. Id. at 187.
+
+20. See, for example, Vicki C. Jackson, “Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on ‘Proportionality,’ Rights and Federalism,” 1 University of Pennsylvania Journal of Constitutional Law 583 (1999); Gregory C. Alexander, The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence 189–294 (2006).
+
+21. Beatty, note 15 above, at 98.
+
+22. Id. at 9.
+
+23. Id. at 33 (footnote omitted).
+
+24. Id. at 34.
+
+25. Id.
+
+26. Id. at 35.
+
+27. He calls it “profoundly undemocratic” because it “imposes virtually no constraints—no disciplining rules—on the discretion of judges.” Id. at 56. That is the pot calling the kettle black.
+
+28. Id. at 46–47.
+
+29. Kakunaga v. Sekiguchi (1977), translated and reprinted in Lawrence W. Beer and Hiroshi Itoh, The Constitutional Case Law of Japan, 1970 through 1990 478–491 (1996).
+
+30. Beatty, note 15 above, at 68. By “secular ritual” I assume he means the equivalent of pledging allegiance to the flag or singing “The Star-Spangled Banner.”
+
+31. Beer and Itoh, note 29 above, at 483.
+
+32. Beatty, note 15 above, at 73.
+
+33. Id. at 107.
+
+34. Id. at 108.
+
+35. Id. at 142.
+
+36. Id. at 131.
+
+37. Id. at 110. Incidentally, despite much talk of “rights” throughout the book, Beatty claims that the concept of “proportionality” “makes the concept of rights almost irrelevant.” Id. at 160.
+
+38. Id. at 113.
+
+39. Id. at 145 (footnote omitted).
+
+40. Id. at 179.
+
+41. Id. at 180.
+
+42. Id. at 114–115.
+
+43. Id. at 114.
+
+44. Id. at 116.
+
+45. Id. at 158.
+
+46. Id. at 116–117.
+
+47. Id. at 133. See also id. at 144–158.
+
+48. Id. at 167.
+
+49. Id. at 168.
+
+50. 198 U.S. 45 (1905).
+
+51. Beatty, note 15 above, at 135–136.
+
+52. 494 U.S. 872 (1990).
+
+53. Beatty, note 15 above, at 52.
+
+54. Aharon Barak, The Judge in a Democracy (2006).
+
+55. Robert H. Bork, “Barak’s Rule,” Azure, Winter 2007, pp. 125, 131.
+
+56. Barak, note 54 above, at 85 n. 154.
+
+57. Joshua Segev, “Who Needs a Constitution? In Defense of the Non-Decision Constitution-Making Tactic in Israel,” 70 Albany Law Review 409 (2007).
+
+58. Barak, note 54 above, at 248.
+
+59. Id. at 85–88.
+
+60. Id. at 180.
+
+61. Id. at 284.
+
+62. Id. at 25–26. “Human rights are the core of substantive democracy.” Id. at xi.
+
+63. Id. at 17.
+
+64. Id.
+
+65. Id. at 138.
+
+66. Id. at 6.
+
+67. Id. at 107.
+
+68. See, for example, Caroline B. Glick, “Israel’s Judicial Tyranny,” Jerusalem Post, Nov. 18, 2005, p. 24; Jonathan Rosenblum, “Drunk with Arrogance,” Hamodia, Jan. 18, 2002, www.jewishmediaresources.com/article/326 (visited May 2, 2007). For a defense of Barak’s activism, see Barak Medina, “Four Myths of Judicial Review: A Response to Richard Posner’s Criticism of Aharon Barak’s Judicial Activism,” 49 Harvard International Law Journal Online 1 (2007), www.harvardilj.org/online/116 (visited Oct. 6, 2007).
+
+69. Barak, note 54 above, at 216.
+
+70. Id. at 289.
+
+71. Id. at 305.
+
+72. A point I have made in discussing the jurisprudence of Ronald Dworkin, H. L. A. Hart, and Jürgen Habermas, in my book The Problematics of Moral and Legal Theory, ch. 2 (1999).
+
+73. See, besides Medina, note 68 above, Eli M. Salzberger, “Judicial Appointments and Promotions in Israel: Constitution, Law, and Politics,” in Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World 241 (Kate Malleson and Peter H. Russell eds. 2006). It would be an impertinence for me to opine on how Israel should structure its judiciary.
+
+
+
+
+
+Conclusion
+
+
+
+
+
+The essential datum with which I began my effort in this book to develop a positive theory of judicial decision making was that there is a pronounced political element in the decisions of American judges, including federal trial and intermediate appellate judges and U.S. Supreme Court Justices. The evidence is overwhelming, though judges themselves tend to brush it aside. They brush it aside because they know they are not Democratic or Republican hacks. In so doing they fail to understand that the scholarship that shows that judging is “political” need not be understood to be using the word to denote crass, partisan political commitment. A judge may be a staunch conservative, but he does not ask himself: “How would George W. Bush, who appointed me, vote in this case?” Judges are reluctant to confess even that they are not complete political eunuchs engaged solely in applying rules they did not create to facts they find, like baseball umpires. Many of them believe in all honesty that their decisions are not influenced in the slightest by their political leanings. This widespread honest belief may be the strongest counter to the evidence of political judging. But it is turned by Bayes’s theorem, which shows how preconceptions influence decisions. Preconceptions often are unconscious. Much thinking, including that of busy judges who must make decisions under uncertainty, is telescoped thinking—emotional, intuitive, or commonsensical—that does not proceed step-by-step from explicit premises and so offers wide play for unconscious preconceptions. Bayes acquits judges of the charge of hypocrisy.
+
+So judging is political. It is also “personal” in the sense that judges’ personal attributes—including background characteristics, such as race and sex; personality traits, such as authoritarianism; and professional and life experiences, such as having been a prosecutor or having grown up in turbulent times—influence judging. Personal attributes do this indirectly as well as directly, by contributing to the formation of a judge’s ideology and thus of the political inclinations that affect judicial decisions. But judging is not just personal and political. It is also impersonal and nonpolitical in the sense that many, indeed most, judicial decisions really are the product of a neutral application of rules not made up for the occasion to facts fairly found. Such decisions exemplify what is commonly called “legal formalism,” though the word I prefer is “legalism.” But they tend to be the decisions in routine cases.
+
+What is it about the judicial labor market that determines the balance, which varies among judges and courts, among the personal, the political, and the legalist factors in judging? That is the central question that this book has addressed. Coming up with an answer has required examining the motivations and constraints that play on judges in different judicial systems, including private judicial systems (such as commercial arbitration), elected judiciaries, and the career judiciaries found in civil law systems such as those of Continental Europe. I discussed these other systems only briefly, however, mainly to test my conclusions regarding the determinants of the behavior of U.S. federal judges, my primary focus.
+
+Judges are employees, and employers use a variety of carrots and sticks to cause their employees to be faithful agents. But because of the immense social and political value of an independent federal judiciary, the employer (the United States—specifically, the President and the Senate) has been given few of the usual carrots and sticks with which to motivate its judicial employees. The biggest carrot the government has is, paradoxically, the promise of independence itself, for that makes a judgeship attractive; and the biggest stick it has is conflict-of-interest rules (such as the rule forbidding a judge to sit in a case in which he has a financial stake, however small), which fairly compel judges to be independent by enforcing upon them an almost monastic isolation from possible temptations to surrender independence for other personal advantages. The contrast in these respects with other types of judicial system is profound and has the effects on judicial behavior that one would expect.
+
+There are two more external influences on federal judges besides those that promote judicial independence—a promotion carrot and a reversal-by-a-higher-court stick. These are weak influences, but even if there were no external influences on the behavior of federal judges at all, judicial decision making would not be random. It would be shaped by a host of internal constraints on judicial behavior—things that move judges when they do not anticipate an external reward or punishment whichever way they decide. For most judges the biggest internal constraints on their judging are, first, the desire for self-respect and for respect from other judges and legal professionals generally, which a judge earns by being a good judge, and, second (and closely related), the intrinsic satisfactions of judging, which usually are greater for a good judge than for a bad one. This creates an “Aha!” moment for legalists, who argue that a good judge is a judge who follows rules rather than making them—making rules is the job of legislators—and so good judges must be legalists after all and forswear the personal and the political. But legalists can no more than other judges avoid harboring preconceptions that may inflect their interpretation of rules and their resolution of factual disputes, and also influence the outcome of their application of rules to facts to yield a decision. Legalists are closeted pragmatists.
+
+Legalism fails at a deeper level to refute the hypothesis that personal and political leanings influence judicial decisions. Many of the cases that arise in our dauntingly complex, uncertainty-riven legal system—featuring an antique constitution, an overlay of federal on state law, weak political parties, cumbersome and undisciplined legislatures, and executive-legislative tugs-of-war (so unlike the situation in parliamentary regimes)—cannot be decided by the straightforward application of a preexisting rule. The initial statement of a rule, whether in legislation, the Constitution, or a precedent-creating judicial decision, is usually just a first cut at regulating the activities that fall within the statement’s ordinary meaning. The subsequent refinement of the rule by judges, whether through interpretation of a legislative enactment or the distinguishing of precedents, is aimed at fitting the rule to a particular situation, and that is not an operation based on logic or on the straightforward application of a rule to facts anticipated in the drafting of the rule.
+
+Legalists invent canons of construction (principles of interpretation) and distinctions between dictum and holding; embrace statutory and constitutional literalism but carve narrow exceptions for literal readings that produce absurd results; exalt rules over standards; wash their hands of messy factual issues by adopting principles of deferential appellate review; and in these and other ways expand the reach of legalism beyond its syllogistic core. Some commend “legal reasoning by analogy” as a legal technique, mistakenly thinking that it can save case law from contamination by policy and politics. But all the expansions require legislative judgments and thus the exercise of discretion, which turns out, in the currently most influential incarnations of legalism, to be guided by a political judgment: that there are too many legally enforceable rights. Today’s exaltation of legalism is to a significant extent a reaction by politically conservative legal thinkers, including a number of prominent judges, to the expansion of rights and liability—particularly the rights of tort (including civil rights) plaintiffs, breach-of-contract defendants, prisoners, consumers, workers, and criminal defendants—by the judicial activists of the Warren Court in the 1960s and their successors who, continuing into the 1970s, issued further activist decisions, notably Roe v. Wade, and by their counterparts in the state courts. The claim that the courts shifted the balance too far in favor of rights—also that they are continuing to do so in cases involving capital punishment and homosexual rights—is a perfectly reasonable claim, but it is political. Because conservatives have discovered that it is rhetorically more effective to call activist liberal decisions “lawless” than to call them “too liberal,” the legalists have become the face of legal reform, and the unsophisticated commend them for bringing stability to the law by renouncing political judging. There is a better, a pragmatic, argument for judicial self-restraint based simply on reluctance to interfere with social experiments, for without the knowledge that such experiments yield, the prospects for durable social reform are stunted.
+
+Even if judges wanted to forswear any legislative, any political, role and be merely the “oracles” of the law, transmitting directives rather than directing, they could not do so in the conditions in which they find themselves. A combination of structural and cultural factors imposes a legislative role on our judges that they cannot escape. So the question becomes, what prevents the descent of the judiciary into an abyss of unchanneled discretionary justice that would render law so uncertain and unpredictable that it would no longer be law but instead would be the exercise of raw political power by politicians called judges? A bad answer is that to avoid the abyss judges must commit themselves to a comprehensive theory—such as economics, originalism (insofar as it is distinct from legalism), moral theory, or Justice Breyer’s “active liberty”—to guide their decisions. None of the theories commands a consensus in the judiciary because all are based on—and, being putty in the hands of clever judges, are shaped around—controversial ideologies. None commands a consensus in the legal academy either. This weakens the effect of academic criticism of judicial behavior (potentially an effective constraint on an activity, such as judging, so carefully sheltered from the more powerful incentives and constraints that keep ordinary employees, and other agents, in line), although the greater weakening of the efficacy of academic criticism has come from the alienation of the academy from the bench that I described in chapter 8.
+
+The principal force tending to stabilize judicial decision making is the existence of a limited, a field-specific, ideological consensus in such fields of law as contracts and commercial law, much of torts, much of property law, much of bankruptcy law, most of antitrust law, and pockets of intellectual property law. Judges who agree on the premises for decision can reason their way to outcomes that reflect and augment a coherent body of doctrine. In some cases they reason syllogistically. In others they engage in policy analysis uncontaminated by ideology—more precisely, uncontaminated by contested ideology, because when an ideology is uncontested it is not even perceived to be an ideology but rather is treated as common sense. American law has achieved the necessary minimum of coherence, stability, and “objectivity” (in the sense in which an objective proposition is one that commands the assent of persons of otherwise antagonistic views) in those fields in which legal pragmatism—practical, policy-oriented reasoning—can conduce to reasonably predictable because ideologically uncontroversial results and in which legalist techniques can dispose satisfactorily of masses of routine cases.
+
+The consensus that enables judges to decide cases by logical or instrumental reasoning may be founded on a social consensus, for example the current consensus of American elites, and much of the general public as well, in favor of free markets. Or it could be based just on the happenstance of judges’ having uniform views, maybe because they are drawn from a narrow social or professional stratum, the members of which think alike on relevant issues.1 Our judges are somewhat diverse in social origins. But the preconfirmation screening process and the confirmation gauntlet that nominees must run (and the corresponding filters for state judges) combine to toss out of the applicant pool judges who swim outside the mainstream. So behind the consensus that I have identified as the principal force stabilizing our unruly American law is a selection process that guarantees a certain level of consensus.
+
+Not that 100 percent predictability is possible in any field of law in a legal system that relies as heavily as ours does on case law. When law is perfectly predictable, cases are not brought—all legal disputes are settled—and so precedents are not kept up to date, and as a result when society changes and the old precedents no longer fit, the law becomes unpredictable, which generates litigation and so incites the production of new precedents. The decisions of a diverse judicial corps, moreover, are bound to be less predictable than those of a uniform one. But the former is epistemically more robust. Its decisions are smarter because the judges collectively have greater knowledge and insight than if they were intellectual peas in a pod. There is a tension between good law and certain law that critics of the legal system who decry legal uncertainty overlook.
+
+The stabilizing force of consensus is weaker in the Supreme Court than in the lower courts, especially in constitutional cases. Legalism is out of the question because of case selection (the easy cases are likely to be decided satisfactorily in the lower federal courts); because the Constitution is vaguer than most statutes and is in some respects embarrassingly obsolete; because the Court decides such a small percentage of cases and thus has only limited control over the lower federal courts (which tend therefore to go their own way, generating conflicts that the Court may take many years to get around to resolving); because the Justices are not bound by the Court’s precedents or subject to review by a higher court; and because constitutional cases are, in consequence of the Constitution’s focus on fundamental political rights and structures, forever presenting contentious political issues for the Court to resolve. That contentiousness rules out not only legalism but also in many cases instrumental reasoning (reasoning from agreed-upon premises) as well. The result is that the Supreme Court is not merely not a legalist court; it is a political court. We saw this in the spring of 2007 when the Court veered abruptly to the right in a series of 5–4 decisions as a result of the replacement of a moderately conservative Justice by an extremely conservative one. Pragmatism remains in play. But it seems that the consequences that the Justices are interested in are mainly political consequences, though they are reluctant to acknowledge this, perhaps even to themselves.
+
+Justices do not deliberate collectively a great deal; they vote. Constitutional law is a function not of conventional legal analysis or disinterested policy analysis but of ideology, reflecting the political balance that determines who is appointed to the Supreme Court and the play of public opinion on the executive and legislative branches, and through them on the appointment process. The incessant efforts to stabilize constitutional decision making through comprehensive theory are an embarrassing failure. The latest example is the quest for global judicial consensus on matters such as capital punishment, a quest certain to founder on the diversity of the world’s legal systems and American ignorance of foreign cultures, including foreign legal cultures. The quest replaces time with space—the pretense that judges just enforce past political settlements with the pretense that when judges strike off in a new direction they do so just to bring American constitutional law into conformity with the best legal thinking in the world as a whole.
+
+What reins in the Justices is none of these things; it is an awareness, conscious or unconscious, that they cannot go “too far” without inviting reprisals by the other branches of government spurred on by an indignant public. So they pull their punches, giving just enough obeisance to precedent to be able to present themselves as “real” judges, rather than as the more than occasional legislators that they really are.
+
+The problem of political judging in the form in which it presents itself in constitutional adjudication in the Supreme Court is not unique to constitutional law or to the Supreme Court. Until a quarter of a century ago the problem was acute in antitrust law, and for all one knows it may become so again. Despite its antiquity the Sherman Act of 1890 remains the principal charter of federal antitrust law. But the Act is so vague that federal antitrust law is really a creation of the courts, primarily the Supreme Court.2 Until the 1950s the economics of antitrust were poorly understood even in law schools and economics departments, and in addition it was widely believed that distributive justice and even political liberty were important values that antitrust law should be understood to serve. Technical ignorance and ideological disagreement were rife and infected judicial doctrine. Eventually, advances in economic analysis, coupled with more conservative appointments to the Supreme Court and other federal courts and with changes in public opinion about the free market that were accelerated by the demise of the Soviet Union and most other communist societies, created a consensus that antitrust law should be concerned only with economic efficiency and also brought about a considerable degree of agreement on what antitrust principles would best promote efficiency. It took almost a century, then, for antitrust law to achieve the condition of what Thomas Kuhn called “normal science.” The Supreme Court has not achieved a comparable consensus in most areas of constitutional law, though it has in some (mainly having to do with economic regulation—the Lochner era is well behind us—and with some aspects of criminal procedure in noncapital cases), which in consequence have largely dropped from sight.
+
+The progress in antitrust law owes nothing to legalism. Judges and Justices did not learn to read the Sherman Act more carefully. Instead they learned more about how the economy operates. When law is conceived of as an autonomous discipline, improvement is impossible. The evolution of antitrust law is a triumph of pragmatism. But pragmatism is not a panacea for what troubles American law, or an antidote to political judging. It tells judges to have regard for the consequences of their doctrines and decisions, but it cannot tell them how to weight those consequences. The weighting is the result of a complicated interaction—mysterious, personal to every judge—of modes of reasoning (analysis, intuition, emotion, common sense, judgment), political and ideological inclinations, personality traits, other personal characteristics, personal and professional experiences, and the constraints implicit in the rules of the judicial “game.” Logic plays only a limited role in adjudication, especially at the appellate level and that mainly in routine cases, relative to psychology—an understudied influence on judicial behavior.
+
+American law is very costly, like American medicine. But just as in the case of medicine one is hard-pressed to figure out what to do to lower those costs without lowering quality by more than the cost savings would justify. Even so obvious a reform as raising judicial salaries steeply in order to attract a better quality of judge could, as we saw, backfire. The academic efforts to develop performance measures for judges merit encouragement, and I have suggested marrying the quantitative methods that are used to develop such measures to critical studies of judges. But we are a long way from having comprehensive objective measures of judicial performance. Maybe, however, a keener recognition that legalism is not the path to reform would induce greater awareness that the path lies through pragmatism, not legalism, and with that awareness might come constructive efforts to improve pragmatic judging.
+
+For that recognition to take hold, however, will require a change in the way in which law is taught in law schools. Realism about judges is sorely lacking there. Law is taught as if judges were second-class professors, professors manqué—legal analysts lacking the specialized knowledge of the law professor. The motivations and constraints operating on judges, and the judicial mentality that results, are ignored, as if judges were computers rather than limited human intellects navigating seas of uncertainty. As a result students are not taught how to present a case to a judge in a way that will strike a responsive chord. The curious judicial passivity that results from judges’ being accustomed simply to decide whatever is brought to them to decide, rather than to initiate anything, has made most judges shy about telling lawyers how they should be presenting cases to maximum effect, thus helping themselves by helping the judges. The nation needs a better bridge between bench and bar, and its construction must be largely the work of the law schools.
+
+
+1. That turns out to have been the secret of the “legal process” school of the 1950s, resolute in “eschewing substantive values,” but foundering “in the face of the emerging social conflicts that defined the 1960s.” William M. Wiecek, The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953 460–461 (2006). As Brannon P. Denning, reviewing Wiecek’s excellent book, pointedly remarks of Justice Frankfurter, the guru of the legal process movement, “Frankfurter’s prescription for judicial restraint . . . was personal, almost idiosyncratic in its reliance on the judge to know when to act and when to stay his hand.” 99 Law Library Journal 621, 624 (2007).
+
+2. See, besides references in the introduction, Daniel A. Farber and Brett H. McDonnell, “‘Is There a Text in This Class’? The Conflict between Textualism and Antitrust,” 14 Journal of Contemporary Legal Issues 619 (2005).
+
+
+
+
+
+Acknowledgments
+
+
+
+
+
+I have incorporated material from the following articles of mine, though with much revision and amplification: “The Role of the Judge in the Twenty-first Century,” 86 Boston University Law Review 1049 (2006) (chapters 3 and 4); “Judicial Behavior and Performance: An Economic Approach,” 32 Florida State University Law Review 1259 (2005) (chapter 5); “Reasoning by Analogy,” 91 Cornell Law Review 761 (2005) (chapter 7); “A Note on Rumsfeld v. FAIR and the Legal Academy,” 2006 Supreme Court Review 47 (2007) (chapter 8); “The Supreme Court, 2004 Term: Foreword: A Political Court,” 119 Harvard Law Review 31 (2005) (chapter 10); “Justice Breyer Throws Down the Gauntlet,” 115 Yale Law Journal 1699 (2006) (chapter 11); “No Thanks, We Already Have Our Own Laws,” Legal Affairs, July/Aug. 2004, p. 40 (chapter 12); “Constitutional Law from a Pragmatic Perspective,” 55 University of Toronto Law Journal 300 (2005) (chapter 12); “Enlightened Despot,” New Republic, Apr. 23, 2007, p. 53 (chapter 12).
+
+I thank Heather Afra, Max Barker, Alicia Beyer, Justin Donoho, Justin Ellis, Jonathan Fackler, Nevin Gewertz, Brandon Hale, Allison Handy, Zachary Holmstead, Matthew Johnson, Tara Kadioglu, Meghan Maloney, Shine Tu, and Michael Welsh for their excellent research assistance and their careful cite-checking, and Michael Aronson, my editor at Harvard University Press, for his encouragement and suggestions. Scott Baker, Michael Boudin, Lee Epstein, William Eskridge, Ward Farnsworth, Barry Friedman, Mitu Gulati, Brian Leiter, Jonathan Lewinsohn, Barak Medina, Shelley Murphey, Frederick Schauer, Andrei Shleifer, and Cass Sunstein have my gratitude for making many helpful comments on portions of the manuscript. Dennis Hutchinson’s careful critical reading of the entire manuscript deserves a special acknowledgment. I also owe a large debt to Judge Boudin for discussions that altered my analysis in significant ways and to Professor Shleifer for challenging my judge-centered attempts at unraveling the puzzle of judicial behavior.
+
+
+
+
+
+Index
+
+
+
+
+
+A. H. Phillips, Inc. v. Walling, 244–245
+
+Abelson, Robert, 97n
+
+Abortion, 13–14
+
+Adams v. New Jersey Steamboat Co., 180–186
+
+Adorno, Theodor, 98–99, 115
+
+Agency costs, 39–40, 125–127, 142; in government bureaucracies compared to private firms, 130–133
+
+Alito, Samuel, 1, 161n, 172n, 277–278
+
+Allport, Gordon, 98–99, 115
+
+Altman, Scott, 120–121
+
+Amar, Akhil, 327n
+
+American Law Institute, 208
+
+Analogy. See Reasoning by analogy
+
+Appellate advocacy, 119, 219–220, 248–249
+
+Appellate review, 113–114, 142, 240
+
+Arbitration, 4–5, 127–129, 167
+
+Aristotle, 88n, 90, 231, 239, 252, 307, 337
+
+Arnold, Thurman, 294–295, 302
+
+Artificial intelligence, 5
+
+Attitudinal model of judicial behavior, 19–32, 42–43, 47, 305–306
+
+Authoritarian personality, 98–105, 120
+
+Baker, Scott, 171
+
+Barak, Aharon, 327, 362–368
+
+Baskerville, Stephen, 256n
+
+Bayesian decision theory, 11, 65–70, 72, 74–75, 109, 369
+
+Beatty, David, 354–362
+
+Bell Atlantic Corp. v. Twombly, 53–54
+
+Bentham, Jeremy, 213
+
+Berkowitz, Peter, 229
+
+Berlin, Isaiah, 325–326
+
+Bickel, Alexander, 307–310, 323, 334
+
+Black, Hugo, 353
+
+Blackmun, Harry, 61–62, 119, 290
+
+Blackstone, William, 199, 214, 234, 263, 337
+
+Bork, Robert, 146, 302, 328n, 363, 367
+
+Boudin, Michael, 259–260, 379
+
+Bowers v. Hardwick, 339
+
+Braman, Donald, 116
+
+Brandeis, Louis, 30, 63, 161, 208, 256, 288, 293, 302
+
+Brennan, William, 303
+
+Brewer, Scott, 180–181
+
+Breyer, Stephen, 104, 161n, 172n, 254, 284, 290n, 291, 320, 322–342, 346, 356
+
+Brown v. Board of Education, 247, 279–281, 286, 313, 343–345
+
+Buchanan v. Warley, 27, 284
+
+Buck v. Bell, 30
+
+Buck v. Jewell-LaSalle Realty Co., 188–189
+
+Burger, Warren, 301
+
+Bush v. Gore, 30, 253–254
+
+Byrne, James, 165
+
+Calabresi, Guido, 196, 308, 334, 346
+
+Cardozo, Benjamin, 40, 63–64, 68, 81n, 152, 158, 208, 217n, 235, 257
+
+Case law. See under Law
+
+Chevron U.S.A. v. Natural Resources Defense Council, 337–338
+
+Choi, Stephen, 147, 151–152
+
+Civil liberties, 250–251, 264, 364–368
+
+Clark, Charles, 258
+
+Clinton v. Jones, 250, 320
+
+Codification, 132, 144–145, 154, 263
+
+Coffin, Frank, 258
+
+Cohen, Felix, 235
+
+Common law, 48, 82–84, 153, 235–237, 270, 277; common law statutes, 5, 48–49; versus case law, 83. See also Contract law
+
+Common sense, 116–118
+
+Conformism, 34
+
+Congress, U.S., 156–157, 169. See also Senate, U.S.
+
+Conley v. Gibson, 53
+
+Constant, Benjamin, 325–326
+
+Constitution, 154, 156–157, 250–251, 255, 272, 276; abstract constitutional review, 364; absurdity of if read literally, 202, 287; affirmative action, 280–281, 313–314, 335–336; Article III, 139n, 156; Bill of Rights, 157, 251, 276, 329; campaign finance regulation, 330–332; Eighth Amendment, 274, 348; in exile, 287; and federalism, 332–334; federal regulation of interstate commerce, 333; Fourteenth Amendment, 343–345; Fourth Amendment, 190–191, 200–201; free speech, 177–178, 250, 282–284, 287, 330–332, 334; habeas corpus suspension clause, 292–293; religion clauses, 312–313, 320–323, 359; republican not democratic, 328–330; separation of powers, 156, 365–366; Sixth Amendment, 291; structure of Constitution of 1787, 328–330. See also Constitutional courts (foreign); Constitutional theory; Supreme Court
+
+Constitutional courts (foreign), 160, 347–368; German constitutional court, 347, 351, 358; Israeli Supreme Court, 363–368
+
+Constitutional theory, 324–346, 362, 372–373; active liberty, 324–342; fact-based, 355–362; limitations of balancing approach, 332–334; moral vanguardism, 309–312; Yale School of Constitutional Interpretation, 327n. See also Bickel, Alexander; Hart, Henry; Originalism; Textualism
+
+Contract law, 87, 203, 235
+
+Corrective justice, 88–90
+
+Cosmopolitanism, judicial, 353–362, 368, 375; philosophical, 353–354
+
+Critical legal studies, 112, 209
+
+Cross, Frank, 43n, 45–46, 161n
+
+Declaration of Independence, 352
+
+Deliberation, judicial, 2–3, 34, 296, 302–304, 308, 375. See also Hart, Henry
+
+Democracy: Aharon Barak’s conception of, 364–365; democratic objection to citing foreign decisions, 353; direct, 325–326, 329; at federal versus state level, 138–139, 333; Justice Breyer’s conception of, 325–330; participatory, 334–335; representative, 327
+
+Denning, Brannon, 374n
+
+Deutsch, Jan, 94–95
+
+Dewey, John, 231–233, 255
+
+Diogenes of Sinope, 354
+
+Discretion, judicial, 43–44, 48, 86–87, 124, 174, 240, 345. See also Sentencing
+
+Dissent, 115; dissent aversion, 32–34; in Supreme Court, 51
+
+Dorf, Michael, 212–213
+
+Douglas, William O., 113, 119, 353
+
+Dr. Miles Medical Co. v. John D. Park & Sons Co., 54
+
+Dworkin, Ronald, 175, 188, 310, 341, 356, 368n
+
+Easterbrook, Frank, 346
+
+Economic theory of judicial behavior, 35–40; judicial utility function, 35–38, 59–65, 71, 77, 88–92, 140–141, 144, 166–171
+
+Economics: cheaper cost avoider, 182; economic analysis of law, 208–209, 212, 237–238; of eminent domain, 314–319; last-period problem, 159; role of, in law, 77. See also Agency costs; Economic theory of judicial behavior
+
+Eldred v. Ashcroft, 318, 340
+
+Elk Grove Unified School District v. Newdow, 274n
+
+Ely, John Hart, 327, 341
+
+Evidence, rules of, 176. See also Bayesian decision theory
+
+Federalism, 332–334
+
+Federalist No. 78, 42n, 157
+
+Ferejohn, John, 160
+
+Flag-burning cases, 282–284
+
+Florida v. Nixon, 281
+
+Foreign decisions, citation of by U.S. courts, 14, 340, 347–353
+
+Formalism. See Legalism
+
+Fortas, Abe, 165
+
+Fortnightly Corp. v. United Artists Television, Inc., 189–190
+
+Frank, Jerome, 99, 112–113, 115, 118–119, 251, 254, 257–258, 260
+
+Frankfurter, Felix, 194, 208, 302, 308, 373n
+
+Friendly, Henry, 64, 72n, 144, 161, 208, 258–260
+
+Garner, Bryan, 248–249
+
+Gibson, James, 7n
+
+Gillman, Howard, 115n, 342
+
+Ginsburg, Ruth, 281, 346
+
+Goldberg, Arthur, 165
+
+Gonzales v. Carhart, 278n, 311n
+
+Government of laws, not men, 41–42, 250
+
+Graber, Mark, 28
+
+Green, Michael, 112n
+
+Grey, Thomas, 8n
+
+Griswold, Erwin, 295–296, 300n
+
+Griswold v. Connecticut, 288–289, 309
+
+Group polarization, 31, 256n
+
+Grutter v. Bolinger, 335
+
+Gulati, Mitu, 147, 151–152
+
+Habermas, Jürgen, 233, 368n
+
+Hamilton, Alexander, 157. See also Federalist No. 78
+
+Hammond, W. G., 262n
+
+Hand, Learned, 64, 75, 143–144, 157, 161, 194, 208, 235, 256–257, 279n
+
+Hansford, Thomas, 49
+
+Hanssen, F. Andrew, 58n
+
+Harmelin v. Michigan, 289
+
+Hart, Henry, 2n, 196, 208, 217n, 293–296, 300–303, 305, 307–308, 341
+
+Hayek, Friedrich, 38, 42n, 67–68, 234
+
+Hein v. Freedom From Religion Foundation, Inc., 277
+
+Hodgson, David, 85n
+
+Holmes, Oliver Wendell, 25, 30, 64, 75, 84n, 103, 119–120, 152, 161, 197, 208, 213, 232–233, 238, 243, 251, 257, 262, 288–289, 292, 310, 339
+
+Howard, J. Woodford, 259
+
+Hunch theory of judging, 113
+
+Hutcheson, Joseph, 1, 112–113, 257
+
+Hutchinson, Dennis, 379
+
+Ideology: conservative, 100–101; judicial, 94–105; meaning of, 94, 97; right-wing authoritarianism, 101n; social dominance orientation, 101n. See also Politics
+
+Illinois v. Caballes, 281–282
+
+Jackson, Robert, 260, 294
+
+Japanese Supreme Court, 356–357
+
+Johnson, James, 231n, 235
+
+Johnson, Ronald, 130n
+
+Jost, John, 100–101
+
+Judges: academic criticism of, 204–219; age at appointment, 129; bankruptcy and magistrate judges, 139n, 158, 163–164; biographies of, 217; compared to artists, 62–65; cost-of-living adjustments, 161, 172–173; critical studies of, 217–218; effect of age on performance, 160–161; effect of personal characteristics (background, experience, etc.), 46, 73–76, 94–96, 155; elected, 134–139; federal, 60–61, 137n, 138–140, 158–173; federal appellate, 63–64, 143–150; federal district, 36–37, 140–143; female, 46, 75; how judges differ from law professors, 204–221; judicial performance criteria, 38–39, 138–139, 146–150, 162, 216–218; labor-market analysis of, 162–173; leisure preference of (see Economic theory of judicial behavior, judicial utility function); logrolling by, 143; motivations (see Economic theory of judicial behavior, judicial utility function); outside income, 165–166; private (see Arbitration); promotion of, 132–134, 163; promotion of district judges to court of appeals, 142; resignations by federal, 164–165, 170–171; reversals of, 45, 70–71, 131, 141, 148–149, 161n; salaries, 161–173; senior status in federal system, 37n, 60, 139, 159–160, 165; specialization of, 264; state, 20, 134–139; tenure of, 138, 147, 158–161; term limits, 158–162; turnover of federal, 164–165; utility function of (see Economic theory of judicial behavior); writing by, on judging, 256–263, 324–342. See also Common law; Discretion; Ideology; Judiciary; Judicial psychology; Law clerks; Legislation; Panel composition effects; Retirement; Senate, U.S.; Supreme Court
+
+Judicial activism, 287
+
+Judicial citations, 147–148, 154n. See also Foreign decisions; Judges, judicial performance criteria
+
+Judicial independence, 37–38, 136–137, 152–153, 174
+
+Judicial opinions, 110–111, 146–148, 186, 221, 260. See also Law clerks
+
+Judicial psychology, 95–109, 289–290; good judgment, 107, 117; introspection, 120–121; intuition compared to conscious reasoning, 107–112, 114, 116–117; psychological theory of judicial behavior, 35; role of emotion, 105–107; role of sympathy for individual litigants, 119
+
+Judicial reasoning. See Judicial psychology; Reasoning by analogy; Statutory interpretation
+
+Judicial self-restraint, 287–290, 345, Holmes’s conception compared to Thayer’s, 288, 292; legalist conception of, 287
+
+Judiciary: civil law versus Anglo-American, 129–134, 137, 144–145, 152–154, 161, 163, 198, 263–264; English, 2–3, 154–156, 162, 263, 329n; independent (see Judicial independence). See also Constitutional courts (foreign)
+
+Juries, 34, 68
+
+Jurisprudence constante, 145
+
+Kahan, Dan, 116
+
+Kakunaga v. Sekiguchi, 358–359
+
+Kant, Immanuel, 67–68, 354
+
+Katz v. United States, 190–191, 201
+
+Keeton, Robert, 2n
+
+Kelo v. City of New London, 273, 314–320
+
+Kennedy, Anthony, 96n, 257, 275, 278, 283, 310–311, 346, 348
+
+Kennedy, Duncan, 213–214
+
+Kipling, Rudyard, 105
+
+Klarman, Michael, 344
+
+Klein, David, 259
+
+Knight, Jack, 231n, 235
+
+Kontorovich, Eugene, 352n
+
+Kraus, Jody, 238n
+
+Law: case law, 83, 210–211; in developing countries, 197; growth of specialization, 216–217; law and economics movement, 77, 208–209; meaning of word “law,” 9, 43–44, 175, 213–214, 252; private practice of, 167–170, 208–209 (see also Law professors); unwritten, 210. See also Common law; Judges; Judiciary; Rule of law
+
+Law clerks, 24n, 61n, 144n, 221, 256n, 285–286, 294, 319–320
+
+Law firms. See Law, private practice of
+
+Law professors, 204–229; growing alienation of, from judges and practitioners, 208–229, 327; preoccupation of, with Supreme Court, 146
+
+Lawrence v. Texas, 310–311, 338–339, 350
+
+Leegin Creative Leather Products, Inc. v. PSKS, Inc., 5n, 54, 77, 243
+
+Legal education, 204–229, 252; in appellate advocacy, 219–220. See also Law professors
+
+Legalism, 7–9; in career (civil-law) judiciaries, 132–133, 263–264; classic era of American, 261–262; fostered by law clerks, 221; in interpretation of statutes, 201–202; legalist concept of judicial self-restraint, 287; legalist model of judicial behavior described and critiqued, 41–56, 77, 79, 84–86, 111, 117, 161, 168–169, 175–176, 179, 230–231, 254–255, 371–373; pragmatic justifications for, 239–240; as pragmatic strategy, 80–81, 197–198, 230, 246; reasoning by analogy as technique of, 180; relation of, to democracy, 254; role of precedent in, 283, 345–346. See also Originalism; Rules, versus standards; Textualism
+
+Legal process school of legal thought, 236–237, 242, 247, 293, 373n
+
+Legal realism, 112–113, 184–185, 213, 234–236, 247, 260, 327n, 357
+
+Legal scholarship. See Law professors
+
+Legislation: collective intent, 194–195; judge as disinterested legislator, 253; judges as occasional legislators, 81–92, 161, 198–199, 253, 304–306; legislative history, 350; in parliamentary systems versus United States, 133–134, 153–154, 198–199, 263; process of enactment, 201. See also Bickel, Alexander; Calabresi, Guido; Congress, U.S.; Statutory interpretation
+
+Libecap, Gary, 130n
+
+Liberty: active, 324–342; of the ancients, 325–327; of the moderns, 325; negative, 325; positive, 326. See also Democracy
+
+Lindquist, Stefanie, 43n
+
+Llewellyn, Karl, 213, 220, 235, 256, 258n, 260–261
+
+Lochner v. New York, 25, 114–115, 281, 339, 342
+
+Loubser v. Thacker, 54n
+
+Luttig, Michael, 146
+
+Madison, James, 343
+
+Mahoney, Paul, 153
+
+Marshall, John, 240, 363
+
+Martin, Wayne, 85
+
+McConnell, Michael, 105, 254, 333n, 340n, 342–346
+
+McCreary County v. ACLU, 320
+
+Mediation, 167
+
+Merryman, John, 133n
+
+Michelman, Frank, 278–279
+
+National Association for the Advancement of Colored People v. Claiborne, 226–227
+
+National Society of Professional Engineers v. United States, 48n
+
+Natural law, 232, 234, 307, 311
+
+Neutral principles. See Legal process school of legal thought
+
+New Deal, 235–236, 293
+
+Newdow v. United States Congress, 274
+
+Newman, Jon, 346
+
+New York Times Co. v. Sullivan, 178
+
+Nussbaum, Martha, 354
+
+O’Connor, Sandra, 1, 151–152, 271, 275, 278, 282, 310, 314, 316–317, 335–336, 348
+
+Olmstead v. United States, 190–191, 200–201
+
+Organization theory, applied to judges, 39–40, 76–77; influence activities, 133; management by exception, 76. See also Agency costs
+
+Originalism, 103–105, 192, 193, 195, 234, 283, 287, 292, 342–346; embarrassment regarding precedent, 343–345; nonoriginalist originalism, 328. See also Textualism
+
+Panel composition effects, 31–34
+
+Parents Involved in Community Schools v. Seattle School District No. 1, 280–281, 313–314
+
+Pasquino, Pasquale, 160
+
+Peirce, Charles Sanders, 231–232
+
+Phenomenology, 40; of judicial decision-making, 40, 85
+
+Planned Parenthood of Southeastern Pennsylvania v. Casey, 275–276
+
+Plessy v. Ferguson, 27, 105, 279, 281
+
+Polarization. See Group polarization
+
+Political science, 47, 212. See also Attitudinal model of judicial behavior; Strategic theory of judicial behavior
+
+Political questions doctrine, 80
+
+Politics: meanings of “political” in reference to judicial behavior, 9–10, 73, 93–94. See also Ideology
+
+Pound, Roscoe, 43, 81n
+
+Pragmatism, 40; approach of, to civil liberties, 250–251; constrained, 253–254; historicist aspect of, 247–248; lack of moral earnestness, 250–252; legal, 13–14, 40–41, 48–49, 175, 192–194, 197–198, 202–203, 230–265, 342, 361; philosophical, 231–233, 255; role of, in precedent, 345–346; rule pragmatism, 81n; shortsighted, 195, 239. See also Legalism, as pragmatic strategy
+
+Precedent, 39–40, 43–45, 48–51, 54–56, 144–145, 175–178, 182, 184, 220, 275–276; boiling the frog versus frank overruling, 277; in civil law systems, 144–145; doctrine of precedent distinguished from reasoning by analogy, 182n; endangered by originalism, 343–345; in English courts, 154–155; foreign decisions as, 348–353; holding versus dictum, 81, 192–193; relation of, to neutral principles, 247; in Supreme Court, 49–59, 151, 154–155, 275–277; uneasy status in legalist analysis, 283, 345–346; unpublished decisions as, 349
+
+Preconceptions, 11, 67–69, 76, 98, 120; as products of intuition, 107
+
+Principal agent problems. See Agency costs
+
+Proportionality, as constitutional norm, 331, 355–356
+
+Psychology: cognitive illusions, 69–70, 256n, 285; moral, 97–98. See also Authoritarian personality; Judicial psychology
+
+Pufendorf, Samuel, 199
+
+Radin, Max, 184–185, 235
+
+Reasoning by analogy, 180–191
+
+Rehnquist, William, 301, 303–304, 317, 320–321, 346
+
+Retirement: judicial, 36, 164–166; timing of judicial, 23–24, 60. See also Judges, senior status in federal system
+
+Richardson v. Marsh, 8
+
+Roberts, John, 78–79, 81, 161, 163–165, 169, 207, 225, 278, 301
+
+Rodell, Fred, 112–113
+
+Roe v. Wade, 243, 276, 282, 325, 372
+
+Roosevelt, Franklin, 156
+
+Roper v. Simmons, 272–275, 279, 296–298, 310–312, 339
+
+Rorty, Richard, 233, 250
+
+Rose, U. M., 262n
+
+Rousseau, Jean-Jacques, 326, 336
+
+Rule of law, 1, 9, 41, 59, 89–90, 307, 354–355
+
+Rules, 184–185, 245, 341; versus standards, 80–81, 175–179, 181–182, 195, 197, 270, 283–284
+
+Rumsfeld v. FAIR, 222–229, 327–328
+
+Sacks, Albert, 196
+
+Sartre, Jean-Paul, concept of bad faith, 104–105
+
+Savigny, Friedrich Carl von, 197
+
+Scalia, Antonin, 8, 48, 49n, 103, 175, 193, 214, 262–263, 274, 277n, 282–285, 317, 325, 327–328, 338, 345–346, 349–350
+
+Schaefer, Walter, 258
+
+Schauer, Frederick, 42n, 83–84, 118, 260
+
+Scherer, Nancy, 20
+
+Senate, U.S.: confirmation of federal judges by, 20–21, 90–91, 156, 278
+
+Sentencing, 71–72, 90, 178–179, 273, 284, 290–292
+
+Shepsle, Kenneth, 194n
+
+Sherman Act, 5, 48–49, 54, 179, 375–376
+
+Shleifer, Andrei, 379
+
+Simon, Dan, 118
+
+Simpson, Brian, 83–84
+
+Skepticism, 75
+
+Sociological theory of judicial behavior, 31–35
+
+Solomon Amendment. See Rumsfeld v. Fair
+
+Souter, David, 275, 346
+
+Spriggs, James, 49
+
+Stanford v. Kentucky, 275, 339
+
+Stare decisis. See Precedent
+
+Statutory interpretation, 48–49, 72, 113, 191–203, 214–216; absurdity doctrine, 199–200, 214–216; Aharon Barak’s theory of, 365; autistic theory of, 194–195; canons of construction, 193; French, 199–200; Justice Breyer’s theory of, 337–340; strict construction, 191–203, 336. See also Legislation; Originalism; Sherman Act; Textualism
+
+Stenberg v. Carhart, 278
+
+Stevens, John Paul, 166, 281, 290n, 299n, 340
+
+Stone, Harlan Fiske, 258
+
+Stone, Julius, 81n, 183n
+
+Story, Joseph, 261
+
+Stras, David, 286n
+
+Strategic theory of judicial behavior, 29–31
+
+Supreme Court, 14, 49–56, 83, 91, 150–152, 154–155, 178, 196, 212, 269–346, 374–376; caseload, 269–271, 294, 299–300; certiorari “pool,” 299; congressional limitations on powers of, 156–157, 272–273, 306–307, 365–366; Justices of, 22, 50, 55, 96n, 151, 165, 254; law clerks, 24n, 285–286, 294, 299, 319–320; percentage of constitutional cases, 271; pragmatism in, 312–314; promotion to, 134, 145–146; public opinion as influence on, 150–151, 274; reversals by, 149; term limits, 159–160; tournament proposal for selecting Justices, 151–152. See also Precedent, in Supreme Court
+
+Swift v. Tyson, 276
+
+Tamanaha, Brian, 230, 261–262
+
+Tate, Albert, 258
+
+Textualism, 103, 105, 192, 283, 287, 292, 337, 338, 342–346. See also Originalism.
+
+Thayer, James Bradley, 288, 292
+
+Thomas, Clarence, 280, 282, 306, 317
+
+Thompson, Seymour, 262n
+
+Tolerable windows, 241–242, 332
+
+Traynor, Roger, 258
+
+U.S. Court of Appeals for the Ninth Circuit, 149
+
+United States v. Booker, 273, 284, 290–292
+
+Van Orden v. Perry, 320–323
+
+Vermeule, Adrian, 199n, 214–216
+
+Wald, Patricia, 2n, 258–259
+
+Waldron, Jeremy, 93–94, 104
+
+Warren Court, 325, 327
+
+Wechsler, Herbert, 279n, 307
+
+Weinreb, Lloyd, 180–191
+
+Whitman v. American Trucking Associations, 51–52
+
+Wiecek, William, 261, 373n
+
+Williams, Bernard, 175, 236n
+
+World Wide Web, 42
+
+Yi v. Sterling Collision Centers, Inc., 243–245, 248
+
+Zelman v. Simmons-Harris, 312–313, 320, 339–340
+
+
+
+Table of Contents
+
+Title
+
+Copyright
+
+Contents
+
+Introduction
+
+Part One: The Basic Model
+
+1 Nine Theories of Judicial Behavior
+
+
+
+
+
+2 The Judge as Labor-Market Participant
+
+
+
+
+
+3 The Judge as Occasional Legislator
+
+
+
+
+
+4 The Mind of the Legislating Judge
+
+
+
+
+
+Part Two: The Model Elaborated
+
+5 The Judicial Environment: External Constraints on Judging
+
+
+
+
+
+6 Altering the Environment: Tenure and Salary Issues
+
+
+
+
+
+7 Judicial Method: Internal Constraints on Judging
+
+
+
+
+
+8 Judges Are Not Law Professors
+
+
+
+
+
+9 Is Pragmatic Adjudication Inescapable?
+
+
+
+
+
+Part Three: Justices
+
+10 The Supreme Court Is a Political Court
+
+
+
+
+
+11 Comprehensive Constitutional Theories
+
+
+
+
+
+12 Judicial Cosmopolitanism
+
+
+
+
+
+Conclusion
+
+Acknowledgments
+
+Index
+
+
+
+Table of Contents
+
+Title
+
+Copyright
+
+Contents
+
+Introduction
+
+Part One: The Basic Model
+
+1 Nine Theories of Judicial Behavior
+
+
+
+2 The Judge as Labor-Market Participant
+
+
+
+3 The Judge as Occasional Legislator
+
+
+
+4 The Mind of the Legislating Judge
+
+
+
+Part Two: The Model Elaborated
+
+5 The Judicial Environment: External Constraints on Judging
+
+
+
+6 Altering the Environment: Tenure and Salary Issues
+
+
+
+7 Judicial Method: Internal Constraints on Judging
+
+
+
+8 Judges Are Not Law Professors
+
+
+
+9 Is Pragmatic Adjudication Inescapable?
+
+
+
+Part Three: Justices
+
+10 The Supreme Court Is a Political Court
+
+
+
+11 Comprehensive Constitutional Theories
+
+
+
+12 Judicial Cosmopolitanism
+
+
+
+Conclusion
+
+Acknowledgments
+
+Index
+
+
+
+
+
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+Table of Contents
+
+Title Page
+
+Copyright Page
+
+Epigraph
+
+Dedication
+
+Acknowledgements
+
+Foreword
+
+Introduction
+
+General Principles of Argumentation
+
+
+
+1. Be sure that the tribunal has jurisdiction.
+
+2. Know your audience.
+
+3. Know your case.
+
+4. Know your adversary’s case.
+
+5. Pay careful attention to the applicable standard of decision.
+
+6. Never overstate your case. Be scrupulously accurate.
+
+7. If possible, lead with your strongest argument.
+
+8. If you’re the first to argue, make your positive case and then
+
+preemptively ...
+
+9. If you’re arguing after your opponent, design the order of positive
+
+case and ...
+
+10. Occupy the most defensible terrain.
+
+11. Yield indefensible terrain—ostentatiously.
+
+12. Take pains to select your best arguments. Concentrate your fire.
+
+13. Communicate clearly and concisely.
+
+14. Always start with a statement of the main issue before fully
+
+stating the facts.
+
+15. Appeal not just to rules but to justice and common sense.
+
+16. When you must rely on fairness to modify the strict application
+
+of the law, ...
+
+17. Understand that reason is paramount with judges and that overt
+
+appeal to ...
+
+18. Assume a posture of respectful intellectual equality with the
+
+bench.
+
+19. Restrain your emotions. And don’t accuse.
+
+20. Control the semantic playing field.
+
+21. Close powerfully—and say explicitly what you think the court
+
+should do.
+
+Legal Reasoning
+
+
+
+22. Think syllogistically.
+
+23. Know the rules of textual interpretation.
+
+24. In cases controlled by governing legal texts, always begin with
+
+the words ...
+
+25. Be prepared to defend your interpretation by resort to legislative
+
+history.
+
+26. Master the relative weight of precedents.
+
+27. Try to find an explicit statement of your major premise in
+
+governing or ...
+
+Briefing
+
+
+
+28. Appreciate the objective of a brief.
+
+29. Strengthen your command of written English.
+
+30. Consult the applicable rules of court.
+
+31. Set timelines for the stages of your work.
+
+32. In cooperation with your opponent, prepare the Joint Appendix.
+
+33. Spend plenty of time simply “getting” your arguments.
+
+34. Outline your brief.
+
+35. Sit down and write. Then revise. Then revise again. Finally,
+
+revise.
+
+36. Know how to use and arrange the parts of a brief.
+
+37. Advise the court by letter of significant authority arising after
+
+you’ve ...
+
+38. Learn how to use, and how to respond to, amicus briefs.
+
+39. Value clarity above all other elements of style.
+
+40. Use captioned section headings.
+
+41. Use paragraphs intelligently; signpost your arguments.
+
+42. To clarify abstract concepts, give examples.
+
+43. Make it interesting.
+
+44. Banish jargon, hackneyed expressions, and needless Latin.
+
+45. Consider using contractions occasionally—or not.
+
+46. Avoid acronyms. Use the parties’ names.
+
+47. Don’t overuse italics; don’t use bold type except in headings;
+
+don’t use ...
+
+48. Describe and cite authorities with scrupulous accuracy.
+
+49. Cite authorities sparingly.
+
+50. Quote authorities more sparingly still.
+
+51. Swear off substantive footnotes—or not.
+
+52. Consider putting citations in footnotes—or not.
+
+53. Make the relevant text readily available to the court.
+
+54. Don’t spoil your product with poor typography.
+
+Oral Argument
+
+
+
+55. Appreciate the importance of oral argument, and know your
+
+objectives.
+
+56. Prepare yourself generally as a public speaker.
+
+57. Master the preferred pronunciations of English words, legal
+
+terms, and ...
+
+58. Master the use of the pause.
+
+59. Send up the skilled advocate most knowledgeable about the
+
+case.
+
+60. Avoid splitting the argument between cocounsel.
+
+61. Prepare assiduously.
+
+62. Learn the record.
+
+63. Learn the cases.
+
+64. Decide which parts of your brief you’ll cover.
+
+65. Be flexible.
+
+66. Be absolutely clear on the theory of your case.
+
+67. Be absolutely clear on the mandate you seek.
+
+68. Organize and index the materials you may need.
+
+69. Conduct moot courts.
+
+70. Watch some arguments.
+
+71. On the eve of argument, check your authorities.
+
+72. Arrive at court plenty early with everything you need.
+
+73. Make a good first impression. Dress appropriately and bear
+
+yourself with dignity.
+
+74. Seat only cocounsel at counsel table.
+
+75. Bear in mind that even when you’re not on your feet, you’re
+
+onstage and working.
+
+76. Approach the lectern unencumbered; adjust it to your height;
+
+stand erect ...
+
+77. Greet the court and, if necessary, introduce yourself.
+
+78. Have your opener down pat.
+
+79. If you’re the appellant, reserve rebuttal time.
+
+80. Decide whether it’s worth giving the facts and history of the
+
+case.
+
+81. If you’re the appellant, lead with your strength.
+
+82. If you’re the appellee, take account of what has preceded, clear
+
+the ...
+
+83. Avoid detailed discussion of precedents.
+
+84. Focus quickly on crucial text, and tell the court where to find it.
+
+85. Don’t beat a dead horse. Don’t let a dead horse beat you.
+
+86. Stop promptly when you’re out of time.
+
+87. When you have time left, but nothing else useful to say,
+
+conclude ...
+
+88. Take account of the special considerations applicable to rebuttal
+
+argument.
+
+89. Look the judges in the eye. Connect.
+
+90. Be conversational but not familiar.
+
+91. Use correct courtroom terminology.
+
+92. Never read an argument; never deliver it from memory except
+
+the opener and ...
+
+93. Treasure simplicity.
+
+94. Don’t chew your fingernails.
+
+95. Present your argument as truth, not as your opinion.
+
+96. Never speak over a judge.
+
+97. Never ask how much time you have left.
+
+98. Never (or almost never) put any other question to the court.
+
+99. Be cautious about humor.
+
+100. Don’t use visual aids unintelligently.
+
+101. Welcome questions.
+
+102. Listen carefully and, if necessary, ask for clarification.
+
+103. Never postpone an answer.
+
+104. If you don’t know, say so. And never give a categorical answer
+
+you’re ...
+
+105. Begin with a “yes” or a “no.”
+
+106. Never praise a question.
+
+107. Willingly answer hypotheticals.
+
+108. After answering, transition back into your argument—
+
+smoothly, which means ...
+
+109. Recognize friendly questions.
+
+110. Learn how to handle a difficult judge.
+
+111. Beware invited concessions.
+
+112. Advise the court of significant new authority.
+
+113. If you’re unhappy with the ruling, think about filing a motion
+
+for reconsideration.
+
+114. Learn from your mistakes.
+
+115. Plan on developing a reputation for excellence.
+
+Sources for Inset Quotations
+
+Recommended Sources
+
+
+
+
+
+© 2008 Antonin Scalia & Bryan A. Garner Published by Thomson/West
+
+610 Opperman Drive
+
+P.O. Box 64526
+
+St. Paul, MN 55164-0527
+
+1-800-328-9352
+
+eISBN : 978-0-314-18471-9
+
+Library-of-Congress Cataloguing-in-Publication Data Antonin Scalia & Bryan A. Garner
+
+Includes bibliographical references and index.
+
+1. Law—United States—Methodology.
+
+2. Appellate procedure—United States.
+
+3. Oral pleading—United States.
+
+4. Legal composition.
+
+5. Forensic rhetoric.
+
+
+
+I. Scalia, Antonin, 1936-.
+
+I. Garner, Bryan A., 1958-.
+
+II. Title
+
+Body Copy: Adobe Jenson 13/15
+
+Section Headings: Myriad Pro Semibold 12/14
+
+Inset Quotations: Myriad Pro Condensed 10/10.5
+
+Third printing
+
+
+
+
+
+“Experience is undoubtedly a great teacher, yet it may be counterproductive if what has been cultivated and refined are bad habits. The point is that excellence is the product of the diligent study and application of sound principles, not simply the accumulation of time logged in . . .
+
+courts.”
+
+—T.W. Wakeling (1979)
+
+
+
+
+
+Even so:
+
+
+
+
+
+“No rules in the handbooks are capable in themselves of making brilliant performances out of those who intend to dispense with practice and exercise.”
+
+—Dionysius of Halicarnassus (ca. 30 B.C.)
+
+
+
+
+
+To our parents
+
+
+
+S. Eugene Scalia
+
+(1903-1986)
+
+
+
+Catherine L. Scalia
+
+(1905-1985)
+
+
+
+Gary Thomas Garner
+
+(b. 1930)
+
+
+
+Mariellen Griffin Garner
+
+(1931-1994)
+
+
+
+
+
+Acknowledgments
+
+
+
+During various stages of the development of our manuscript, we’ve benefited from the generosity of many readers with great experience in our subject:
+
+
+
+Hon. Susan Agid
+
+
+
+Richard D. Bernstein, Esq.
+
+
+
+Hon. Paul G. Cassell
+
+
+
+Karolyne H. Cheng, Esq.
+
+
+
+Jordan B. Cherrick, Esq.
+
+
+
+Charles Dewey Cole Jr., Esq.
+
+
+
+Richard M. Coleman, Esq.
+
+
+
+Prof. Edward H. Cooper
+
+
+
+Prof. Ross Davies
+
+
+
+Prof. Michael R. Devitt
+
+
+
+Brian J. Donato, Esq.
+
+
+
+Prof. William V. Dorsaneo III
+
+
+
+David M. Dorsen, Esq.
+
+
+
+Hon. Frank H. Easterbrook
+
+
+
+Hon. Martin L.C. Feldman
+
+
+
+Stephen F. Fink, Esq.
+
+
+
+Hon. Arthur J. Gajarsa
+
+
+
+Henry Goldberg, Esq.
+
+
+
+Carl F. Goodman, Esq.
+
+
+
+Michael A. Hatchell, Esq.
+
+
+
+Prof. Geoffrey C. Hazard Jr.
+
+
+
+Hon. Nathan L. Hecht
+
+
+
+Hon. Robert H. Henry
+
+
+
+Steven A. Hirsch, Esq.
+
+
+
+Tiger Jackson, Esq.
+
+
+
+Hon. Edith Hollan Jones
+
+
+
+Prof. Susan Karamanian
+
+
+
+George M. Kryder, Esq.
+
+
+
+Prof. Douglas Laycock
+
+
+
+Todd E. Macaluso, Esq.
+
+
+
+Paul G. McNamara, Esq.
+
+
+
+Brian Melendez, Esq.
+
+
+
+Jeff Newman, Esq.
+
+
+
+Gloria C. Phares, Esq.
+
+
+
+Hon. Thomas M. Reavley
+
+
+
+Eugene Scalia, Esq.
+
+
+
+Ann Taylor Schwing, Esq.
+
+
+
+Hon. Laurence H. Silberman
+
+
+
+Joseph F. Spaniol Jr., Esq.
+
+
+
+Scott P. Stolley, Esq.
+
+
+
+Hon. Jeffrey S. Sutton
+
+
+
+Hon. Deanell R. Tacha
+
+
+
+Randall M. Tietjen, Esq.
+
+
+
+Prof. John R. Trimble
+
+
+
+Aaron Van Oort, Esq.
+
+
+
+Richard S. Walinski, Esq.
+
+
+
+Prof. Sir David Williams
+
+
+
+Hon. Diane P. Wood
+
+
+
+For their perceptive comments and suggestions, we’re most grateful.
+
+
+
+Copious thanks are also due to Professor Roy M. Mersky of the University of Texas School of Law. He and his incomparable staff at the Tarlton Law Library, especially Jeanne Price and Leslie Ashbrook, proved critically
+
+helpful in tracking down background sources for us to consult in our research.
+
+
+
+Karen Magnuson of Portland, Oregon, proofread the book in her typically fastidious way—for which we’re appreciative.
+
+
+
+A.S.
+
+
+
+B.A.G.
+
+
+
+
+
+Foreword
+
+
+
+Published advice on how to persuade judges is as old as the profession of judging itself. Its sources include Aristotle, Isocrates, Demetrius, Cicero, and Quintilian. So anything fundamentally new contributed by this small volume would probably be wrong. Our purpose is to make the best earlier advice—with perhaps a few suggestions of our own—readily available to the modern practitioner and to adapt it to the circumstances of modern American litigation.
+
+
+
+Unsurprisingly, respected authorities on the art of judicial persuasion are not always unanimous. Where there is substantial disagreement with our recommendations, we acknowledge it. Indeed, on four salient points, we’ve acknowledged disagreements between the two of us, leaving readers to make up their own minds, as they inevitably will.
+
+
+
+We deal here with both written and oral presentation. Since many points that apply to the one apply equally to the other, we have sought to minimize repetition by presenting preliminary sections dealing with the basics of argumentation—knowing your audience, syllogistic reasoning, etc.—and then offering separate sections first on brief-writing, stressing the peculiarities of that form, and then on oral argument doing the same.
+
+
+
+To lighten the journey, we have adopted a conversational style that includes occasional contractions and remarks more flippant or colloquial than one would normally encounter in legal commentary. The reader who feels that some of these indulgences fall short of the formality and sobriety expected of a jurist should attribute all of them to the other author, and assume that they have been included under protest.
+
+
+
+A.S.
+
+
+
+B.A.G.
+
+
+
+
+
+Introduction
+
+
+
+Judges can be persuaded only when three conditions are met: 1. They must have a clear idea of what you’re asking the court to do.
+
+2. They must be assured that it’s within the court’s power to do it.
+
+3. After hearing the reasons for doing what you are asking, and the reasons for doing other things or doing nothing at all, they must conclude that what you’re asking is best—both in your case and in cases that will follow.
+
+
+
+To provide the reasons that will persuade the court to conclude in your favor, you must know what motivates the court, and that’s not always easy to discern. To be sure, following precedent is a concern for all judges, especially in the lower courts. So you must always seek to persuade the court that the disposition you urge is required by prior cases—or at the very least is not excluded by them.
+
+
+
+Beyond stare decisis, however, it becomes a matter of some speculation what motivates a particular judge. In a question of first impression, to be resolved within a court’s common-law powers, all judges would agree that the decision must be driven by (1) fairness to the litigants and a socially desirable result in the case at hand, and (2) adoption of a legal rule that will provide fairness, socially desirable results, and predictability in future cases. How much weight a particular judge may give to (1) or (2)—or to their subparts—may vary. But all judges will surely give some weight to all those considerations, and you can be confident that you’re not wasting your time in addressing them.
+
+
+
+But unconstrained common-law decision-making is an increasing rarity.
+
+Courts are usually confronted with interpreting a governing text, whether a
+
+constitutional provision, a statute, an agency regulation, or a municipal ordinance. And in these cases, what motivates a judge cannot be so readily determined. Some judges believe that their duty is quite simply to give the text its most natural meaning—in the context of related provisions, of course, and applying the usual canons of textual interpretation—without assessing the desirability of the consequences that meaning produces. At the other extreme are those judges who believe it their duty to give the text whatever permissible meaning will produce the most desirable results. Most judges probably fall somewhere between these two extremes, perhaps adopting the most natural meaning except when policy consequences affect an area that they consider particularly important (e.g., environmental protection or sex discrimination), or perhaps consulting policy consequences only when the most natural meaning is not entirely clear.
+
+Unless you know for sure what sort of judge you’re dealing with, you’re well advised to argue (if possible) both most-natural-meaning and policy-consequences- cum-permissible-meaning.
+
+
+
+As we’ll discuss in some detail, your arguments must make logical sense.
+
+Your legal and factual premises must be well founded, and your reasoning must logically compel your conclusion. But while computers function solely on logic, human beings do not. All sorts of extraneous factors—
+
+emotions, biases, preferences—can intervene, most of which you can do absolutely nothing about (except play upon them, if you happen to know what they are).
+
+
+
+An ever-present factor, however, and one that you can always influence, is the human proclivity to be more receptive to argument from a person who is both trusted and liked. All of us are more apt to be persuaded by someone we admire than by someone we detest. In the words of Isocrates: “[T]he man who wishes to persuade people will not be negligent as to the matter of character; he will apply himself above all to establish a most honourable name among his fellow-citizens; for who does not know that words carry greater conviction when spoken by a man of good repute?”1 Aristotle further noted that character makes a special difference on disputed points:
+
+“We believe good men more fully and more readily than others: this is true .
+
+. . where exact certainty is impossible and opinions are divided.” 2
+
+
+
+Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information—not
+
+just
+
+intentionally
+
+but
+
+even
+
+carelessly;
+
+by
+
+mischaracterizing precedent to suit your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weighs against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.
+
+
+
+As for affection, you show yourself to be likable by some of the actions that inspire trust, and also by the lack of harsh combativeness in your briefing and oral argument, the collegial attitude you display toward opposing counsel, your refusal to take cheap shots or charge misbehavior, your forthright but unassuming manner and bearing at oral argument—and, perhaps above all, your even-tempered good humor. Some people, it must be said, are inherently likable. If you’re not, work on it. (It may even improve your social life.)
+
+
+
+
+
+General Principles of Argumentation
+
+
+
+
+
+1. Be sure that the tribunal has jurisdiction.
+
+2. Know your audience.
+
+3. Know your case.
+
+4. Know your adversary’s case.
+
+5. Pay careful attention to the applicable standard of decision.
+
+6. Never overstate your case. Be scrupulously accurate.
+
+7. If possible, lead with your strongest argument.
+
+8. If you’re the first to argue, make your positive case and then
+
+preemptively ...
+
+9. If you’re arguing after your opponent, design the order of positive
+
+case and ...
+
+10. Occupy the most defensible terrain.
+
+11. Yield indefensible terrain—ostentatiously.
+
+12. Take pains to select your best arguments. Concentrate your fire.
+
+13. Communicate clearly and concisely.
+
+14. Always start with a statement of the main issue before fully
+
+stating the facts.
+
+15. Appeal not just to rules but to justice and common sense.
+
+16. When you must rely on fairness to modify the strict application
+
+of the law, ...
+
+17. Understand that reason is paramount with judges and that overt
+
+appeal to ...
+
+18. Assume a posture of respectful intellectual equality with the
+
+bench.
+
+19. Restrain your emotions. And don’t accuse.
+
+20. Control the semantic playing field.
+
+21. Close powerfully—and say explicitly what you think the court
+
+should do.
+
+
+
+
+
+1. Be sure that the tribunal has jurisdiction.
+
+
+
+Nothing is accomplished by trying to persuade someone who lacks the authority to do what you’re asking—whether it’s a hotel clerk with no discretion to adjust your bill or a receptionist who cannot bind the company to the contract you propose. Persuasion directed to an inappropriate audience is ineffective.
+
+
+
+So it is with judges, whose authority to act has many limitations—
+
+jurisdictional limits—relating to geography, citizenship of the parties, monetary amount, and subject matter. From justices of the peace to justices of supreme courts, judges face as a first task to be sure of their authority to decide the matters brought before them and to issue the orders requested. If they don’t have that authority in your case, you don’t just have a weak case, you have no case at all.
+
+
+
+Most weak points in your case will be noted by opposing counsel, giving you a chance to reflect on them and respond. If opposing counsel does not protest a particular point, the defect will often be regarded as waived. But a defect in subject-matter jurisdiction is a different matter altogether. An opposing party often has no interest in challenging jurisdiction, being as eager as you are to have the court resolve the dispute. But in many courts (including all federal courts), absence of subject-matter jurisdiction, unlike most other defects, cannot be waived. And in some of those courts (including all federal courts), even if no party raises the issue, the court itself can and must notice it. Nothing is more disconcerting, or more destructive of your argument, than to hear these words from the bench:
+
+“Counsel, before we proceed any further, tell us why this court has jurisdiction over this case.” You need a convincing answer to this question
+
+—and preferably a quick and short one—or else you’re likely, in the picturesque words of the lawyer’s cliché, to be poured out of court.
+
+
+
+Two caveats about jurisdiction: (1) Jurisdictional rules apply in appellate courts as well as in trial courts. The Supreme Court of the United States, for example, has jurisdiction over a state-court decision (involving a federal question) only when that decision is final, and only when there is no adequate and independent state-law ground for the judgment. (2) Defendants and appellees are much more likely to ignore jurisdictional requirements than are plaintiffs and appellants. But jurisdiction is just as important to them, and they must attend to it.
+
+
+
+The rules of the Supreme Court of the United States require briefs to set forth, immediately after the description of the parties, the basis for the Court’s jurisdiction. Even if the court before which you are appearing has no similar rule, it’s good practice to pretend that it does and to identify the law, and the facts, that render this original action, or this appeal, properly brought before that court. Keep that information handy in case the court asks.
+
+
+
+
+
+2. Know your audience.
+
+
+
+A good lawyer tries to learn as much as possible about the judge who will decide the case. The most important information, of course, concerns the judge’s judicial philosophy—what it is that leads this particular judge to draw conclusions. Primarily text, or primarily policy? Is the judge strict or lax on stare decisis ? Does the judge love or abhor references to legislative history? The best place to get answers to such questions is from the horse’s mouth: read the judge’s opinions, particularly those dealing with matters relevant to your case. Also read the judge’s articles and speeches on relevant subjects.
+
+
+
+“It may surprise you, but many firms keep ‘book’ on all the judges before whom they appear. This book includes much more than a biographical sketch which you might find in Who’s Who: Does the judge listen with patience, or does he seem absorbed in other matters or half asleep? Does he treat the government as just another litigant, or does the government have a preferred or, sometimes, a prejudiced position? Does he seem impressed by the reputation or prestige of the lawyer making the argument? These and many other impressions are recorded for future reference.”
+
+—Samuel E. Gates
+
+
+
+
+
+Besides judicial philosophy, learn all you can about how the judge runs the courtroom. Is the judge unusually impatient? If so, you might want to pare down your arguments to make them especially terse and pointed. Is the judge an old-school stickler for decorum? If so, you might refer to opposing counsel as “my friend.” One federal judge had a practice of fining counsel $20 (no notice in advance) for placing a briefcase on the counsel table. It’s good to know of such peculiarities. Some of these courtroom characteristics you can (and should) observe by sitting in on one of the judge’s hearings.
+
+Beyond that, however, talk to colleagues at the bar who are familiar with the judge’s idiosyncrasies.
+
+
+
+Finally, learn as much as you readily can about the judge’s background.
+
+Say you’re appearing before Judge Florence Kubitzky. With a little computer research and asking around, you discover that fly-fishing is her passion; that her father died when she was only seven; that her paternal grandparents, who were both professors at a local college, took charge of her upbringing; that she once chaired the state Democratic Party; that she enjoys bridge; that she has been estranged from her brother and sister for many years; that she graduated from Mount Holyoke College and took her law degree from the University of Michigan; that she’s an aficionado of good wines; that her favorite restaurant is the Beaujolais Room; that she was counsel for a craft union before coming to the bench; and so on. Going in, all these data seem irrelevant to how the judge might decide your breach-of-contract case, but you might well find some unpredictable uses for this knowledge over the course of a lengthy trial. You might want to stress, for example, that the defective contract performance your client is complaining about violated basic standards of the craft and reflects shoddy workmanship. At the very least, these details will humanize the judge for you, so that you will be arguing to a human being instead of a chair.
+
+
+
+Apart from judges’ personal characteristics, there are also characteristics of individual courts. Can the appellate court you are appearing before be relied on to read the briefs before hearing argument? If not, you might devote more argument time to the facts than you otherwise would, or deal with some legal points that are so basic that you’d normally pass over them in oral argument. Is it the practice of the appellate court to assign the opinion to a particular judge before the case is even argued? If so, you can probably assume less familiarity with the facts and issues on the part of the other judges, and you might want to lay out your argument in a more rudimentary fashion for their benefit. Is the court notoriously dismissive of higher-court precedent? Stress the public-policy benefits of your proposed disposition.
+
+
+
+Bear in mind that trial judges are fundamentally different from appellate judges. They focus on achieving the proper result in one particular case, not on crafting a rule of law that will do justice in the generality of cases. And they will pursue that objective principally through their treatment of the facts (if the case is tried to the court) and discretionary rulings. In most jurisdictions, trial judges are more disposed than appellate judges to strict observance of governing caselaw—perhaps because their work is subject to mandatory review. So at the trial-court level you are well advised to spend more time on the facts and on the discussion of precedent (from the relevant courts) and less time on policy arguments. That’s one reason why a good trial brief can rarely be used before an appellate court without major changes.
+
+
+
+
+
+3. Know your case.
+
+
+
+Have you ever tried buying equipment from a salesperson who didn’t know beans about it? You might understandably have fled the store.
+
+Although lawyers aren’t selling equipment, they are selling their cases.
+
+
+
+“I am constantly amazed, during Supreme Court arguments, to hear an attorney virtually struck dumb by questions from the bench that anyone with any knowledge of the case should have anticipated. It is as if the attorney has become so imbued with the spirit of his cause that he has totally blinded himself to the legitimate concerns that someone else might have in adopting his position.”
+
+—E. Barrett Prettyman Jr.
+
+
+
+
+
+Judges listen to counsel because, at the time of briefing or argument, counsel can be expected to know more about the legal and factual aspects of the case than anyone else. But if it becomes clear that this is not so, judicial attention will flag. If you’re asked about a fact in the record that you’re ignorant of, or a clearly relevant case that you’re unfamiliar with and have failed to mention in your brief, don’t expect the court to give your argument much weight. Your very first assignment, therefore, is to become an expert on the facts and the law of your case. If you’re a senior partner who hasn’t the time to do this, assign the case to the junior partner or associate who knows it best.
+
+
+
+At the appellate stage, knowing your case means, first and foremost, knowing the record. You never know until it is too late what damage a gap in your knowledge of the record can do—not only at oral argument (see §
+
+62), but even in your brief. Richard Bernstein of Washington, D.C., tells of a case in which the plaintiff-appellees, represented by a prominent firm first retained on the appeal, made the theoretically plausible argument that one reason they should receive an injunction for patent infringement was that damages were difficult to prove. Unfortunately, as the appellant’s reply brief carefully (oh-so-carefully) explained, the appellee’s own expert had told the jury that in this case damages were easy to prove and calculate.
+
+Needless to say, the appellee did not press the point at oral argument.
+
+
+
+Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case. If you’re arguing an appeal, you must have a firm grasp of what facts have been determined below or must be accepted as true, and what facts are still unresolved.
+
+
+
+Knowing a case also means knowing exactly what you’re asking for—
+
+and how far short of that mark you can go without bringing back to your client a hollow victory. Say a member of an appellate panel asks, “Counsel, if we agree with your petition, would you be content with a remand for the lower court to consider X, an issue not decided below and not briefed or argued here?” You must know whether your opponent ever raised that issue below. If not, you must insist on outright reversal and entry of judgment in your favor. If you fail to do so, the court may cite your failure as a concession that your adversary hasn’t forfeited the issue. If, however, your adversary raised the point but the lower court didn’t reach it, you should graciously concede that remand is a possibility but go on to explain why the appellate court should reject that disposition—as by showing, for example, that the facts could not possibly support a judgment on that ground. By conceding what must be conceded, you establish your credentials as a reliable and even-handed counselor.
+
+
+
+
+
+4. Know your adversary’s case.
+
+
+
+No general engages the enemy without a battle plan based in large part on what the enemy is expected to do. Your case must take into account the points the other side is likely to make. You must have a clear notion of which ones can be swallowed (accepted but shown to be irrelevant) and which must be vigorously countered on the merits. If your brief and argument come first, you must decide which of your adversary’s points are so significant that they must be addressed in your opening presentation and which ones can be left to your reply brief or oral rebuttal. Of course, a principal brief or argument that is all rebuttal is anathema.
+
+
+
+At the trial stage, you must initially discern your adversary’s positions from the pleadings, the conferences, and discovery, and by using common sense. At the appellate stage, you can rely on what was argued and sought to be proved below. Bear in mind, however, that lawyers tend to develop new arguments, and revise their theories, as the case proceeds upward.
+
+Constantly ask yourself what you would argue if you were on the other side.
+
+
+
+Don’t delude yourself. Try to discern the real argument that an intelligent opponent would make, and don’t replace it with a straw man that you can easily dispatch.
+
+
+
+
+
+5. Pay careful attention to the applicable standard of decision.
+
+
+
+The separate issues involved in your case may be subject to varying presumptions and burdens of proof. In a criminal trial, the prosecution must establish guilt beyond a reasonable doubt. An adversary who seeks to overturn the judgment you obtained below on the basis of an erroneous jury instruction to which there was no objection must establish not just error but plain error. An appellant who attempts to set aside federal-agency action as contrary to statutory authority must often show not merely that the best reading of the statute favors reversal, but that the agency’s reading is not even within the bounds of reason. And so forth.
+
+
+
+When the standard of decision favors your side of the case, emphasize that point at the outset of your discussion of the issue—and keep it before the court throughout. Don’t let the discussion slide into the assumption that you and your adversary are on a level playing field when in fact the standard of review favors you. Say, for example, that you are asked, in a case involving review of federal-agency action favoring your client, whether you don’t think an interpretation of the statute different from the agency’s makes more sense. You should respond somewhat as follows: “I don’t think so, Your Honor, but it really makes no difference. The question here is whether the agency’s interpretation is a reasonable one, not whether it is the very best. And on that point there is little room for doubt.” Remind the court of the favorable standard of review in your summation.
+
+
+
+Appellees’ briefs commonly treat the standard of review in boilerplate fashion. If your opponent is fighting against a clearly-erroneous or arbitrary-and-capricious standard, make a big deal of it. Point out that the appellant is attempting to retry the case, or to have the court of appeals
+
+substitute its judgment for that of the district court or the agency. Say this explicitly, not only in your standard-of-review section but in your introduction and summary of argument.
+
+
+
+When the standard of decision is against you, acknowledge the difficulty but demonstrate concretely why the standard is met. Go beyond mere repetition of stock phrases. For example, if you’re arguing that the judgment below was clearly erroneous, it does little good to say, “Here one does indeed have a definite and firm conviction that a mistake has been made.” Cite a case in which an appellant met that standard and compare it to your own.
+
+
+
+The standard of decision is particularly important when you’re selecting the issues to pursue on appeal. Appealing a minor error that will be reviewed under an abuse-of-discretion standard will probably do nothing but divert time and attention from your stronger points. Sometimes, too, you can escape or neutralize the more lenient standard of review by framing your claim differently—as by arguing not that the lower court abused its discretion, but that it made an error of law in considering certain factors.
+
+
+
+
+
+6. Never overstate your case. Be scrupulously accurate.
+
+
+
+Once you have worked long and hard on your case—and have decided not to settle—you’ll probably be utterly convinced that your side is right.
+
+That is as it should be. But the judges haven’t worked on the case as long (or, probably, as hard) and are likely, initially at least, to think it much more of a horse race than you do. That will be true in any case, but especially when discretionary review has been granted to resolve a divergence of views in the lower courts. You’ll harm your credibility—you’ll be written off as a blowhard—if you characterize the case as a lead-pipe cinch with nothing to be said for the other side. Even if you think that to be true, and even if you’re right, keep it to yourself. Proceed methodically to show the merits of your case and the defects of your opponent’s—and let the abject weakness of the latter speak for itself.
+
+
+
+“Nothing, perhaps, so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he is reasonably entitled to claim. Do not ‘stretch’ cases cited and relied upon too far, making them appear to cover something to your benefit they do not cover. Do not try to dodge or minimize unduly the facts which are against you. If one cannot win without doing this—and it is seldom he can by doing it—the case should not be appealed.”
+
+—Hon. Wiley B. Rutledge
+
+
+
+
+
+Scrupulous accuracy consists not merely in never making a statement you know to be incorrect (that is mere honesty), but also in never making a statement you are not certain is correct. So err, if you must, on the side of understatement, and flee hyperbole. Since absolute negatives are hard to prove, and hence hard to be sure of, you should rarely permit yourself an
+
+unqualified “never.” Preface a clause like “Such a suit has never been brought in this jurisdiction” with an introductory phrase like “As far as we have been able to discover, . . . .”
+
+
+
+Inaccuracies can result from either deliberate misstatement or carelessness. Either way, the advocate suffers a grave loss of credibility from which it’s difficult to recover.
+
+
+
+
+
+7. If possible, lead with your strongest argument.
+
+
+
+When logic permits, put your winning argument up front in your affirmative case. Why? Because first impressions are indelible. Because when the first taste is bad, one is not eager to drink further. Because judicial attention will be highest at the outset. Because in oral argument, judges’
+
+questioning may prevent you from ever getting beyond your first point.
+
+
+
+Sometimes, of course, the imperatives of logical exposition demand that you first discuss a point that is not your strongest. For example, serious jurisdictional questions must be discussed first: it makes no sense to open with the merits, and then to consider, at the end, whether the court has any business considering the merits. There is also a logical order of addressing merits issues. C may not be relevant unless B is established, which in turn is not relevant until A has been established. For example, you might have to prove that (A) the agency validly promulgated the regulation, (B) the agency has interpreted the regulation to favor your client, and (C) the agency’s interpretation is entitled to judicial deference. No other order of progression would make sense. Similarly, in defending a medical-malpractice judgment on appeal, your argument portion would not begin by justifying the amount of the award and then proceed to defending the judgment of liability.
+
+
+
+If you’re the appellant, even though logic has pushed your strongest argument toward the back of the line in your principal brief, bring it up front in your reply—which will often set the agenda for the oral argument.
+
+
+
+And if you’re an appellant at oral argument, begin with your strongest point regardless of what logical progression demands (see § 81). If the court wants logical progression at oral argument, it won’t be shy about asking you to turn to a logically prior point; and there (unlike in briefing or bridge), if you don’t show your ace of trumps first, you may never get a chance to play it.
+
+
+
+
+
+8. If you’re the first to argue, make your positive case and then preemptively refute in the middle—not at the beginning or end.
+
+
+
+It’s an age-old rule of advocacy that the first to argue must refute in the middle, not at the beginning or the end. Refuting first puts you in a defensive posture; refuting last leaves the audience focused on your opponent’s arguments rather than your own.
+
+
+
+So for the first to argue, refutation belongs in the middle. Aristotle observed that “in court one must begin by giving one’s own proofs, and then meet those of the opposition by dissolving them and tearing them up before they are made.” 3
+
+
+
+Anticipatory refutation is essential for five reasons. First, any judge who thinks of these objections even before your opponent raises them will believe that you’ve overlooked the obvious problems with your argument.
+
+Second, at least with respect to the obvious objections, responding only after your opponent raises them makes it seem as though you are reluctant, rather than eager, to confront them. Third, by systematically demolishing counterarguments, you turn the tables and put your opponent on the defensive. Fourth, you seize the chance to introduce the opposing argument in your own terms and thus to establish the context for later discussion.
+
+Finally, you seem more even-handed and trustworthy.
+
+
+
+“Every argument is refuted in one of these ways: either one or more of its assumptions are not granted; or if the assumptions are granted, it is denied that a conclusion follows from them; or the form of argument is shown to be fallacious; or a strong argument is met by one equally strong or stronger.”
+
+—Cicero
+
+
+
+
+
+But anticipatory refutation has its perils. You don’t want to refute (and thereby disclose) an argument that your opponent wouldn’t otherwise think of. Avoiding this pitfall requires good lawyerly judgment.
+
+
+
+
+
+9. If you’re arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent’s argument.
+
+
+
+Aristotle advised responding advocates to rebut forcefully in their opening words:
+
+
+
+[I]f one speaks second, one must first address the opposite argument, refuting it and anti-syllogizing, and especially if it has gone down well; for just as the mind does not accept a subject of prejudice in advance, in the same way neither does it accept a speech if the opponent seems to have spoken well. One must therefore make space in the listener for the speech to come; and this will be done by demolishing the opponent’s case; thus, having put up a fight against either all or the greatest or most specious or easily refuted points of the opponent, one should move on to one’s own persuasive points. 4
+
+
+
+
+
+This point applies to those who oppose motions, to respondents, and to appellees. If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument.
+
+
+
+Caution: As a general matter, this advice applies to refutation of separate points that make your affirmative points academic—not to your opponent’s contesting of your affirmative points themselves. If, for example, your case rests on the proposition that a particular statute creates a claim, you would not begin by refuting your opponent’s argument that no claim was created; you would present your own affirmative case to the contrary first. Suppose,
+
+however, that your opponent has argued, quite persuasively, that the court lacks jurisdiction and that the statute of limitations on any claim has expired. Judges don’t like to do any more work than necessary. If they have a fair notion that they will never have to reach the question whether a claim was created, they aren’t going to pay close attention to your oral argument on that point. And we have known judges to skip entirely over the merits section of the appellee’s brief to reach the response to the appellant’s jurisdictional or other nonmerits argument. You must clear the underbrush
+
+—or, as Aristotle puts it, “make space”—so that the court will be receptive to your principal argument.
+
+
+
+Having made that space, however, you must then fill it. Proceed quickly to a discussion of your take on the case, your major premise, and your version of the central facts. As put by a perceptive observer, in the context of an appellee’s argument:
+
+
+
+Nothing could be a more serious mistake than merely to answer the arguments made by counsel for the appellant. These arguments may be skillfully designed to lead counsel for the respondent off into the woods or they may lead him there unintentionally. The proper line of attack for counsel for the respondent to adopt is to proceed to demonstrate by his discussion of the law and the facts that the judgment is right and that it should be affirmed. All other considerations are secondary.5
+
+
+
+
+
+10. Occupy the most defensible terrain.
+
+
+
+Select the most easily defensible position that favors your client. Don’t assume more of a burden than you must. If, for example, a leading case comes out differently from your desired result, don’t argue that it should be overruled if there is a reasonable basis for distinguishing it. If you’re arguing for a new rule in a case of first impression, frame a narrow rule that is consistent with judgment for your client. (Why set yourself the task of providing a satisfactory answer to 100 hypothetical questions about the multifarious effects of a broad rule when you can limit the questions to 5
+
+about the limited effects of a narrow one?)
+
+
+
+If the defendant has intentionally injured your client in some novel fashion, argue for the existence of some hitherto unrecognized intentional tort, not for a rule that includes negligent acts as well.
+
+
+
+“If your court is divided philosophically, . . . your best bet is to strive for a narrow fact-bound ruling that will not force one or two judges to revisit old battles or reopen old wounds. . . . You want to win unanimously; you do not want a messy dissent to provoke a petition for en banc or even certiorari. On a divided court, big forward or backward (depending on your point of view) leaps in the law come usually only in en bancs, or if they do come in a panel, often end up in en bancs. Take your narrow, ‘for this case only’
+
+holding, hug it to your bosom, and run.”
+
+—Hon. Patricia M. Wald
+
+
+
+
+
+Taking the high ground does not mean being noncommittal—saying, for example, that you win under any of three different possible rules, without taking a position about which rule is best. The judge writing an opinion,
+
+especially an appellate judge, cannot indulge that luxury, but must say what the law is. Be helpful. Sure, point out that you win under various rules, but specify what the rule ought to be. If you fail to do that, you leave the impression that all your proposed rules are problematic.
+
+
+
+Don’t let your adversary’s vehement attacks on your moderate position drive you to less defensible ground. If, for example, your position is that an earlier case is distinguishable, don’t get muscled into suggesting that it be overruled. And don’t let your adversary get away with recharacterizing your position to make it more extreme (a common ploy). If you are arguing, for example, that lawful resident aliens are entitled to certain government benefits, don’t leave unanswered your opponent’s suggestion that you would reward illegal aliens. Respond at the first opportunity.
+
+
+
+On rare occasions it may be in the institutional interest of your client to argue for a broader rule than is necessary to win the case at hand. When you take this tack, the court is likely to ask why it should go so far when a much narrower holding will dispose of the case. Have an answer.
+
+
+
+
+
+11. Yield indefensible terrain—ostentatiously.
+
+
+
+Don’t try to defend the indefensible. If a legal rule favoring your outcome is exceedingly difficult to square with the facts of your case, forget about it. You will have to consume an inordinate amount of argument time defending it against judges’ attacks, and you will convey an appearance of unreasonableness (not to say desperation) that will damage your whole case.
+
+
+
+Rarely will all the points, both of fact and of law, be in your favor.
+
+Openly acknowledge the ones that are against you. In fact, if you’re the appellant, run forth to meet the obvious ones. In your opening brief, raise them candidly and explain why they aren’t dispositive. Don’t leave it to the appellee to bring them to the court’s attention. Fessing up at the outset carries two advantages. First, it avoids the impression that you have tried to sweep these unfavorable factors under the rug. Second, it demonstrates that, reasonable person that you are, you have carefully considered these matters but don’t regard them as significant.
+
+
+
+“[G]rasp your nettles firmly. No matter how unfavorable the facts are, they will hurt you more if the court first learns them from your opponent. To gloss over a nasty portion of the record is not only somewhat less than fair to the court, it is definitely harmful to the case. Draw the sting of unpleasant facts by presenting them yourself.”
+
+—Frederick Bernays Wiener
+
+
+
+
+
+Suppose, however, that you’re the appellee and those damaging points have already been noted by your adversary. Don’t pass them by in sullen
+
+silence. Make a virtue of a necessity. Boldly proclaim your acceptance of them—thereby demonstrating your fairness, your generosity, and your confidence in the strength of your case, and burnishing your image as an eminently reasonable advocate: “We concede, Your Honor, that no notice was given in this case. The facts cannot be read otherwise.” ( Huzzah! thinks the court. An even-handed fellow! ) You then go on, of course, to explain why the conceded point makes no difference or why other factors outweigh it.
+
+
+
+Bear in mind that a weak argument does more than merely dilute your brief. It speaks poorly of your judgment and thus reduces confidence in your other points. As the saying goes, it is like the 13th stroke of a clock: not only wrong in itself, but casting doubt on all that preceded it.
+
+
+
+
+
+12. Take pains to select your best arguments. Concentrate your fire.
+
+
+
+The most important—the very most important—step you will take in any presentation, whether before a trial court or an appellate court, is selecting the arguments that you’ll advance. A mediocre advocate defending a good position will beat an excellent advocate defending a bad position nine times out of ten. (We made up this statistic, but it’s probably correct.) Give considerable thought to what your argument should be, and talk it over with your associates. Bear in mind that in an appeal, trial counsel is not necessarily the best person to make the call. Extreme attachment to a rejected point can color one’s judgment about which rulings lend themselves to effective challenge. Think of the poker player who can’t bear to fold three aces even after it has come to seem very likely that the opponent has a full house.
+
+
+
+Scattershot argument is ineffective. It gives the impression of weakness and desperation, and it insults the intelligence of the court. If you’re not going to win on your stronger arguments, you surely won’t win on your weaker ones. It is the skill of the lawyer to know which is which. Pick your best independent reasons why you should prevail—preferably no more than three—and develop them fully. You might contend, for example, that (1) the breach-of-contract claim is barred by the statute of limitations; (2) the performance complied with the contract; and (3) any deficiency in performance was accepted as adequate and hence waived. Of course, each point may be supported by several lines of argument.
+
+
+
+“We must not always burden the judge with all the arguments we have discovered, since by doing so we shall at once bore him and render him less inclined to believe us.”
+
+—Quintilian
+
+
+
+
+
+Lawyers notoriously multiply their points, just as they notoriously multiply their verbs (“give, grant, bargain, sell, and convey”). Some of the multifarious points often turn out to be just earlier points stated differently.
+
+Sometimes they result from including the pet theory of every lawyer on the case. Don’t let that happen. Arm-wrestle, if necessary, to see whose brainchild gets cut. And don’t let the client dictate your choice; you are being paid for your judgment.
+
+
+
+On the surface, it might seem that a ten-point argument has been overanalyzed. In reality, it has been underanalyzed. Counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest.
+
+
+
+
+
+13. Communicate clearly and concisely.
+
+
+
+In an adversary system, it’s your job to present clearly the law and the facts favoring your side of the case—it isn’t the judges’ job to piece the elements together from a wordy and confusing brief or argument. Quite often, judges won’t take the trouble to make up for your deficiency, having neither the time nor the patience.
+
+
+
+The judges considering your case have many other cases in hand. They are an impatient, unforgiving audience with no desire to spend more time on your case than is necessary to get the right result. Never, never waste the court’s time. Having summoned the courage to abandon feeble arguments, do not undo your accomplishment by presenting the points you address in a confused or needlessly expansive manner. They must be presented clearly and briskly and left behind as soon as their content has been conveyed—not lingered over like a fine glass of port. Iteration and embellishment are rarely part of successful legal argument.
+
+
+
+“Length dissolves vehemence, and a more forceful effect is attained where much is said in a few words . . . . Brevity is so useful in . . . style that it is often more forceful not to say something.”
+
+—Demetrius
+
+
+
+
+
+In a recent case before the Supreme Court of the United States, an appellant’s brief took ten pages before mentioning the critical fact in the case, then took another seven pages to discuss peripheral matters before
+
+setting forth the legal rule that governed the case. No judge should have to cut through 17 pages of pulp to glimpse the core of the dispute.
+
+
+
+Avoid the temptation to think that your brief is concise enough so long as it comes in under the page or word limit set forth in the court’s rules—and more still, the temptation to insert additional material in order to reach the page or word limit. Acquire a reputation as a lawyer who often comes in short of the limits. “It’s worth reading carefully what this lawyer has written,” the judges think. “There’s never any padding.”
+
+
+
+The power of brevity is not to be underestimated. A recent study confirms what we all know from our own experience: people tend not to start reading what they cannot readily finish. 6
+
+
+
+
+
+14. Always start with a statement of the main issue before fully stating the facts.
+
+
+
+Cicero advised that you must not spring at once into the fact-specific part of your presentation, since “it forms no part of the question, and men are at
+
+first desirous to learn the very point that is to come under their judgment.”7
+
+
+
+In 1981, the rules of the Supreme Court of the United States were amended so that the first thing a reader sees, upon opening the cover of a brief, is the question presented. Many court rules, however, don’t require issues or questions presented to be up front or even to be set forth at all.
+
+That’s regrettable, because the facts one reads seem random and meaningless until one knows what they pertain to. Whether you’re filing a motion in a trial court or an appellate brief—or, for that matter, an in-house memorandum analyzing some point of law—don’t ever begin with a statement of facts. State the issue first.
+
+
+
+“The greatest mistake a lawyer can make either in briefing or oral argument is to keep the court in the dark as to what the case is about until after a lengthy discussion of dates, testimony of witnesses, legal authorities, and the like. Few judges, after eventually finding out what the case is about, can back up in their mental processes and give proper consideration and evaluation to such narrative matter.”
+
+—Hon. Luke M. McAmis
+
+
+
+
+
+But while your statement of the issue should come before a full statement of the facts, it must contain enough of the facts to make it informative.
+
+“Whether the appellant was in total breach of contract” is a little help, but
+
+not much. Fill in the facts that narrow the issue to precisely what the court must decide: “The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract?”
+
+
+
+
+
+15. Appeal not just to rules but to justice and common sense.
+
+
+
+Courts have been known to award judgments that seem to be unjust or to defy common sense. A defective statute, or a defective Supreme Court precedent, can (in the eyes of most judges, at least) require such a result.
+
+But don’t count on it. Consider the philosophy of Lord Denning, regarded by many as one of the greatest of 20th-century British judges: My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law [that] impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule—or even to change it—so as to do justice in the instant case before him. He need not wait for the legislature to intervene: because that can never be of any help in the
+
+instant case.8
+
+
+
+
+
+To be sure, Denning was a renowned judicial activist—or a notorious one, if that is your view of things. But a similar, if not quite identical, approach was endorsed by the famous Chancellor James Kent of New York: I saw where justice lay and the moral sense decided the cause half the time, and then I sat down to search the authorities until I had exhausted my books, and I might once in a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case .
+
+. . . 9
+
+
+
+
+
+Now you may think that the “principles” contained in the “authorities”
+
+ought to lead a judge to his or her conclusion, rather than merely provide later support for a conclusion arrived at by application of the judge’s “moral sense.” And you’d be entirely right. We’re giving advice here, however, not to judges but to the lawyers who appear before them. You can bet your tasseled loafers that some judges, like Lord Denning, will be disposed to change the law to accord with their “moral sense”; and that many more will, like Chancellor Kent, base their initial decision on their “moral sense” and then scour the law for some authority to support that decision. It is therefore important to your case to demonstrate, if possible, not only that your client does prevail under applicable law but also that this result is reasonable. So you must explain why it is that what might seem unjust is in fact fair and equitable—in this very case, if possible—and, if not there, then in the vast majority of cases to which the rule you are urging will apply. You need to give the court a reason you should win that the judge could explain in a sentence or two to a nonlawyer friend.
+
+
+
+Rely fully on the procedural and technical points that support your case.
+
+If, for example, a particular constitutional objection was not raised below and was not addressed by the lower court, say so. Whenever possible, however, accompany the procedural or technical objection with an explanation of why the pretermitted point is in any event wrong (or at least weak) on the merits. Judges will indeed dispose of cases on procedural or technical grounds—but they will do so much more reluctantly if it appears that the claim thereby excluded is a winner. If you cannot make a plausible case on the merits, then point out how the procedural or technical bar is necessary to ensure the correct result in the long term.
+
+
+
+A real-life example: In a recent arbitration in Arkansas, the discovery cutoff came and went on February 15, by which time the parties had taken lengthy depositions and made voluminous production of documents.
+
+Counsel had one month left to prepare for the March 15 arbitration, which was slated to last two weeks. On March 8, the defendants issued subpoenas to four witnesses employed by the plaintiffs, requiring them to produce within five days all sorts of documents that the defendants had never before
+
+requested. The plaintiffs objected on grounds that the discovery cutoff had passed. But the arbitrators ordered the plaintiffs to produce the documents.
+
+
+
+The result? During the week before trial (yes, in terms of the work required an arbitration is essentially a trial), while the defendants’ lawyers were readying themselves—preparing their witnesses and assembling the documentary evidence—the plaintiffs’ lawyers were scrambling to gather the documents required by the 11th-hour subpoenas.
+
+
+
+The argumentative mistake? In objecting to the subpoenas, the plaintiffs’
+
+lawyers argued merely the obvious: (1) the discovery deadline had passed, and (2) the defendants could have requested these documents much earlier.
+
+The objections seemed hardly to register in the three arbitrators’ minds.
+
+Here’s what the plaintiffs could have—and should have—argued: Plaintiffs’ counsel should not be forced to stop preparing for trial, one week away, and travel to four cities on both coasts to find documents that the defendants never asked for before the expired discovery deadline. There is a reason for discovery deadlines: they level the playing field. If the defendants succeed in this last-minute stratagem, the plaintiffs’ team will be severely prejudiced. One week from the trial date, we should not be forced to conduct a frenetic scramble for newly subpoenaed documents. Nor should we be forced, in order to avoid that consequence, to request a deferral of the agreed-upon trial date, further delaying the justice our client is seeking. Although we are sure the defense lawyers mean well, the effect of what they have done is major-league sandbagging. We urge the panel to quash the subpoenas.
+
+
+
+
+
+That might have worked. Certainly it stood a better chance than merely harping on the deadline. If there is prejudice, never fail to identify and argue it.
+
+
+
+
+
+16. When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you.
+
+
+
+A naked appeal to fairness in the face of seemingly contrary authority isn’t likely to succeed. Whenever possible, dress up the appeal with citation of some venerable legal maxim that supports your point. Such maxims are numerous, mostly derived from equity practice. For example: When the reason for a rule ceases, so should the rule itself.
+
+
+
+One must not change his purpose to the injury of another.
+
+
+
+He who consents to an act is not wronged by it.
+
+
+
+Acquiescence in error takes away the right of objecting to it.
+
+
+
+No one can take advantage of his own wrong.
+
+
+
+He who takes the benefit must bear the burden.
+
+
+
+The law respects form less than substance.
+
+
+
+
+
+The State of California has codified many of these maxims with case summaries exemplifying their application.10 Courts in other states are no less familiar with such maxims, and you can almost always find one to support a defensible position.
+
+
+
+
+
+17. Understand that reason is paramount with judges and that overt appeal to their emotions is resented.
+
+
+
+It is often said that a “jury argument” will not play well to a judge.
+
+Indeed, it almost never will. The reason is rooted in the nature of what we typically think of as “jury argument”—a blatant appeal to sympathy or other emotions, as opposed to a logical application of the law to the facts.
+
+Before judges, such an appeal should be avoided.
+
+
+
+Some authorities (though not most) defend some degree of appeal to emotions:
+
+
+
+Every argument . . . must be geared so as to appeal both to the emotion and to the intellect. I think the basic difference between a competent advocate and a great one is that a competent advocate can only do one or the other, or thinks only one or the other is important. You get competent advocates who are very good in emotional cases, because they are adept in appealing to the emotion. You get competent advocates who are successful in cases that are on the dry side because they have the knack of appealing to the intellect. But a great advocate is one who can appeal to both and knows how to press the two appeals in such a way that one will not get in the way of the other.11
+
+
+
+
+
+We hold strongly to a contrary view:
+
+
+
+It is both folly and discourtesy to deliver a jury speech to [the New York Court of Appeals]. It will surely win no votes. You are fortunate
+
+if the judges will attribute such misconduct to your ignorance rather than to the vulnerability of your case. 12
+
+
+
+
+
+Appealing to judges’ emotions is misguided because it fundamentally mistakes their motivation. Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions. And bad judges want to be regarded as good judges. So either way, overt appeal to emotion is likely to be regarded as an insult. (“What does this lawyer think I am, an impressionable juror?”)
+
+
+
+“When a lawyer resorts to a jury argument on appeal, you can just see the judges sit back and give a big sigh of relief. We understand that you have to say all these things to keep your client happy, but we also understand that you know, and we know, and you know we know, that your case doesn’t amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished disposition.”
+
+—Hon. Alex Kozinski
+
+
+
+
+
+There is a distinction between appeal to emotion and appeal to the judge’s sense of justice—which, as we have said, is essential. Of course you should argue that your proposed rule of law produces a more just result, both in the present case and in the generality of cases. And there is also a distinction between an overt appeal to emotion and the setting forth of facts that may engage the judge’s emotions uninvited. You may safely work into your statement of facts that your client is an elderly widow seeking to retain her lifelong home. But don’t make an overt, passionate attempt to play upon the judicial heartstring. It can have a nasty backlash.
+
+
+
+
+
+18. Assume a posture of respectful intellectual equality with the bench.
+
+
+
+The Solicitor General of the United States—the most frequent and often the most skilled advocate before the Supreme Court of the United States—
+
+is sometimes called the “tenth justice.” Every advocate has the opportunity to deserve this description—to be so helpful to the court as to be a colleague of sorts, albeit a junior one. And that is the sort of relationship with the court, a relationship of respectful intellectual equality, that counsel should try to establish. Some appellate judges refer to oral argument as the beginning of the court’s conference—an initial deliberative session in which counsel participate.
+
+
+
+Intellectual equality requires you to know your stuff, to stand your ground, and to do so with equanimity. When you write your brief, or stand up to speak, have clearly in mind this relationship that you wish to establish. It is not the relationship of teacher to student—and if the judges get the impression that this is your view of things, you will have antagonized them. Nor is it the relationship of supplicant to benefactor. You are not there to cajole a favor out of the judges but to help them understand what justice demands, on the basis of your intimate knowledge of the facts and law. Perhaps the best image of the relationship you should be striving to establish is that of an experienced junior partner in your firm explaining a case to a highly intelligent senior partner.
+
+
+
+Respect for the court is more effectively displayed by the nature of your argument (by avoiding repetition, for example, and by refraining from belaboring the obvious) than by such lawyerly obsequiousness as “if Your Honor please” or “with all due respect.” Of course if you’re going to err on
+
+the point, it is probably better to be unduly deferential than not deferential enough.
+
+
+
+“[A]n advocate should be instructive without being condescending, respectful without being obsequious, and forceful without being obnoxious.”
+
+—T.W. Wakeling
+
+
+
+
+
+19. Restrain your emotions. And don’t accuse.
+
+
+
+Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel.
+
+Describing that treatment and dissecting those arguments calmly and dispassionately will affect the court quite as much. And it won’t introduce into the proceeding the antagonism that judges heartily dislike. Nor will it impair your image as a reliably rational and even-tempered counselor.
+
+Ideally, you should evoke rather than display indignation.
+
+
+
+Cultivate a tone of civility, showing that you are not blinded by passion.
+
+Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. Your poker-faced public presumption must always be that an adversary has misspoken or has inadvertently erred—not that the adversary has deliberately tried to mislead the court. It’s imperative. As an astute observer on the trial bench puts it: “An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.” 13 This advice applies especially against casting in pejorative terms something that opposing counsel was fully entitled to do.
+
+
+
+Nor should you accuse the lower court of willful distortion, even if that is obvious. A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project. If the court concludes that the law is against you, it will not award your client the victory just to embarrass a rogue trial judge.
+
+
+
+
+
+20. Control the semantic playing field.
+
+
+
+Labels are important. That’s why people use euphemisms and why names are periodically changed. And that’s why you should think through the terminology of your case. Use names and words that favor your side of the argument.
+
+
+
+Consider American Airlines. Some lawyers who have represented the company call their client “AA” in briefs, perhaps as a space-saver. That passes up an opportunity for subliminal reinforcement. If American Airlines is your client, you have the opportunity to call your client “American”—
+
+knowing that every judge sitting on your case (unless you are in some international tribunal) will be an American. Of course, if you’re opposed to American Airlines, you will call your adversary “the Company,” “the Corporation,” or perhaps even “the Carrier”—never “American.” If you can get your adversaries to use your terminology, so much the better.
+
+
+
+Sometimes it’s not a proper name at issue but an event. Some years ago, Warren Christopher represented Union Oil in connection with some major spills at offshore oil platforms in the Santa Barbara Channel. From the beginning, Christopher persistently referred to this potential environmental disaster as “the incident,” and soon both the judge and even the plaintiffs’
+
+lawyers adopted this abstract word uniformly. Anything more concrete, from Union Oil’s point of view, would have conjured up prejudicial images.
+
+
+
+Judge James L. Robertson of Mississippi has recounted a splendid example of his use of disputational semantics when he was in practice. He was challenging some unduly restrictive outside-speaker regulations on Ole
+
+Miss’s college campuses. During the proceedings, he and his partners kept referring to the lawsuit as the “speaker-ban case.” Soon everyone was doing it. 14 That done, the outcome of the case seems to have been foreordained.
+
+Would you be inclined to vote for or against a speaker ban?
+
+
+
+Of course, semantic astuteness must not degenerate into sharp practice.
+
+In a high-profile medical-malpractice action some years ago, a hospital executive named Lyman Sarnoski (the last name is fictional) was accused of falsifying medical records. The plaintiff’s lawyers repeatedly referred to him before the jury as “LIE-man,” emphasizing the first syllable of his name to suggest, undoubtedly, that lying was part of his nature. It was not long before the judge ordered them to refer to the man as “Mr. Sarnoski”—
+
+and levied a $5,000 sanction on the lawyers. Even if the judge had not taken offense, the jurors probably would have.
+
+
+
+
+
+21. Close powerfully—and say explicitly what you think the court should do.
+
+
+
+Persuasive argument neither comes to an abrupt halt nor trails off in a grab-bag of minor points. The art of rhetoric features what is known as the peroration—the conclusion of argument, which is meant to move the listener to act on what the preceding argument has logically described. The concluding paragraph of a legal argument cannot, of course, be as emotional as the peroration of Cicero’s first oration against Cataline. But it should perform the same function appropriately for the differing context. It should briefly call to the reader’s or listener’s mind the principal arguments made earlier and then describe why the rule of law established by those arguments must be vindicated—because, for example, any other disposition would leave the bar and the lower courts in uncertainty and confusion, or would facilitate fraud, or would flood the courts with frivolous litigation, and so on.
+
+
+
+The trite phrase “for all the foregoing reasons” is hopelessly feeble. Say something forceful and vivid to sum up your points.
+
+
+
+
+
+Legal Reasoning
+
+
+
+
+
+22. Think syllogistically.
+
+23. Know the rules of textual interpretation.
+
+24. In cases controlled by governing legal texts, always begin with
+
+the words ...
+
+25. Be prepared to defend your interpretation by resort to legislative
+
+history.
+
+26. Master the relative weight of precedents.
+
+27. Try to find an explicit statement of your major premise in
+
+governing or ...
+
+
+
+In General
+
+
+
+
+
+22. Think syllogistically.
+
+
+
+Leaving aside emotional appeals, persuasion is possible only because all human beings are born with a capacity for logical thought. It is something we all have in common. The most rigorous form of logic, and hence the most persuasive, is the syllogism. If you have never studied logic, you may be surprised to learn—like the man who was astounded to discover that he had been speaking prose all his life—that you have been using syllogistic reasoning all along. Argument naturally falls into this mode, whether or not you set out to make it do so. But the clearer the syllogistic progression, the better.
+
+
+
+Legal arguments can be expressed syllogistically in two ways. Some are positive syllogisms:
+
+
+
+Major premise: All S is P.
+
+
+
+Minor premise: This case is S.
+
+
+
+Conclusion: This case is P.
+
+
+
+
+
+Others are negative:
+
+
+
+Major premise: Only S is P.
+
+
+
+Minor premise: This case is not S.
+
+
+
+Conclusion: This case is not P.
+
+
+
+
+
+If the major premise (the controlling rule) and the minor premise (the facts invoking that rule) are true (you must establish that they’re true), the conclusion follows inevitably.
+
+
+
+Legal argument generally has three sources of major premises: a text (constitution, statute, regulation, ordinance, or contract), precedent (caselaw, etc.), and policy (i.e., consequences of the decision). Often the major premise is self-evident and acknowledged by both sides.
+
+
+
+The minor premise, meanwhile, is derived from the facts of the case.
+
+There is much to be said for the proposition that “legal reasoning revolves mainly around the establishment of the minor premise.” 15
+
+
+
+So if you’re arguing from precedent, your argument might go: Major
+
+Our cases establish that a prisoner has a claim for harm caused premise:
+
+by the state’s deliberate indifference to serious medical needs.
+
+Minor
+
+Guards at the Andersen Unit ignored the plaintiff’s complaints premise:
+
+of acute abdominal pain for 48 hours, whereupon his appendix burst.
+
+Conclusion: The plaintiff prisoner has a claim.
+
+
+
+
+
+Or if you’re arguing text:
+
+
+
+
+
+Major
+
+Under the Indian Commerce Clause of the U.S. Constitution, premise:
+
+states cannot tax Indian tribes for activities on reservations without the express authorization of Congress.
+
+Minor
+
+Without congressional authorization, South Dakota has premise:
+
+imposed its motor-fuel tax on tribes that sell fuel on reservations.
+
+Conclusion: South Dakota’s tax is unconstitutional.
+
+
+
+
+
+Or if you’re arguing policy:
+
+
+
+
+
+Major
+
+Only an interpretation that benefits the handicapped serves the premise:
+
+policy objectives of the statute.
+
+Minor
+
+The defendant’s interpretation of the statute requires each premise:
+
+wheelchair-bound employee to buy additional equipment at a cost of $1,800.
+
+Conclusion: The defendant’s interpretation does not serve the policy objectives of the statute.
+
+
+
+
+
+Figuring out the contents of a legal syllogism is a matter of finding a rule that works together with the facts of the case—really, a rule that is invoked by those facts. Typically, adversaries will be angling for different rules by emphasizing different facts. The victor will be the one who convinces decision-makers that his or her syllogism is closer to the case’s center of gravity. What is this legal problem mostly about? Your task as an advocate is to answer that question convincingly.
+
+
+
+“[T]o put an argument in syllogistic form is to strip it bare for logical inspection. We can then see where its weak points must lie, if it has any.”
+
+—F.C.S. Schiller
+
+
+
+
+
+Statutes, Regulations, Ordinances, Contracts, and the Like
+
+
+
+
+
+23. Know the rules of textual interpretation.
+
+
+
+Paramount rule: Before coming to any conclusion about the meaning of a text, read the entire document, not just the particular provision at issue. The court will be seeking to give an ambiguous word or phrase meaning in the context of the document in which it appears. Often a later provision will reveal that the earlier provision must bear a particular meaning.
+
+
+
+Here are the frequently expressed rules of interpretation:
+
+
+
+• Words are presumed to bear their ordinary meanings.
+
+• Without some contrary indication, a word or phrase is presumed to have the same meaning throughout a document.
+
+• The provisions of a document should be interpreted in a way that renders them harmonious, not contradictory.
+
+• If possible, no interpretation should be adopted that renders the provision in question—or any other provision—superfluous, unlawful, or invalid.
+
+• If possible, every word should be given effect; no word should be read as surplusage.
+
+• Legislative provisions should be interpreted in a way that avoids placing their constitutionality in doubt.
+
+• A federal statute should not be read to eliminate state sovereign immunity or to preempt state law in an area of traditional state action unless that disposition is clearly expressed.
+
+• Legislative provisions defining crimes and punishments will, in case of ambiguity, be given that interpretation favoring the accused (the rule of lenity).
+
+
+
+You must also take into account the famous canons of construction. In a particular case, various canons may point in different directions. This does not prove that they are useless—only that all valid clues don’t necessarily point in the same direction. It will be your job to persuade the court that most indications—from the canons and the principles of statutory construction—favor your client’s interpretation. The most frequently used canons are the following:
+
+
+
+1. Inclusio unius est exclusio alterius. “The inclusion of one implies the exclusion of others.” A sign that reads “open to persons 21 and over” implies that the place is not open to persons under 21.
+
+2. Noscitur a sociis. “A word is known by the words with which it is associated.” In the phrase “staples, rivets, nails, pins, and stakes,”
+
+the word “nails” obviously does not refer to fingernails.
+
+3. Ejusdem generis. “Of the same kind.” A general residual category following a list of other items refers to items of the same sort. In the phrase “staples, rivets, nails, pins, stakes, and other items,” the
+
+“other items” don’t include balloons, but only other types of fasteners.
+
+4. Ut magis valeat quam pereat. “So that it may survive rather than perish.” An ambiguous provision should be interpreted in a way that makes it valid rather than invalid.
+
+
+
+
+
+24. In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise.
+
+
+
+As an example of textual interpretation, consider the positions that advocates might take in a case that is easy to visualize. Let’s say that the Jacksons, a couple living in Santa Fe, are divorcing. 16 John is an unemployed carpenter, and his wife Jill is a successful novelist who has written five best-selling mysteries. John lays claim to half her future income on those novels, all of which were written during the marriage. Jill’s attorney uncovers a curious provision in the Copyright Act: When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under the copyright, shall be given effect under this title . . . . 17
+
+
+
+
+
+This provision becomes the major premise in Jill’s attorney’s syllogism: Major
+
+Section 201(e) of the Copyright Act nullifies any
+
+premise:
+
+government’s attempt to “transfer . . . any of the exclusive rights” conferred by an author’s copyright.
+
+Minor
+
+Treating Jill Jackson’s royalties as marital property would
+
+premise:
+
+transfer her exclusive right to those royalties conferred by her copyright.
+
+Conclusion: Section 201(e) of the Copyright Act nullifies New Mexico’s attempt to treat Jill Jackson’s royalties on her books as marital property.
+
+
+
+
+
+An excellent argument. But the debate doesn’t end there.
+
+
+
+It turns out that the only federal appellate case on point is against Jill. In Rodrigue v. Rodrigue, the Fifth Circuit held that the Copyright Act does not preempt state community-property doctrines. 18 The Fifth Circuit’s syllogism, on which John’s lawyer relies, shows the importance of reading the entire statute before interpreting one of its provisions. That syllogism was as follows:
+
+
+
+
+
+Major
+
+Section 106 of the Copyright Act defines only five “exclusive premise:
+
+rights”: reproduction, adaptation, publication, performance, and display.
+
+Minor
+
+The future income stream from Jill Jackson’s copyrighted premise:
+
+works is not a right of reproduction, adaptation, publication, performance, or display.
+
+Conclusion: The future income stream from Jill Jackson’s copyrighted works is not an “exclusive right” insulated from state transfer by § 201(e).
+
+
+
+
+
+Both sides have begun with the words of the statute, but they have crafted different arguments by emphasizing different aspects of the language—as is possible with even such a short, seemingly straightforward
+
+provision. By the way, the perceptive reader will have observed that neither Jill’s syllogism nor John’s takes account of the fact that § 201(e) protects not just “exclusive rights” but also “rights of ownership”—a fact that might favor Jill.
+
+
+
+
+
+25. Be prepared to defend your interpretation by resort to legislative history.
+
+
+
+One of your authors has described legislative history as the last surviving legal fiction in American law. The notion that the members of a house of Congress were even aware of, much less voted in reliance on, the assorted floor statements and staff-prepared committee reports that are the staple of legislative-history analysis is—not to put too fine a point on it—absurd.
+
+(And of course neither chamber could, even if it wished, delegate the details of a law to a committee or a floor manager.) Here again, however, we’re advising not judges but the lawyers who appear before them. Since most judges use legislative history, unless you know that the judge or panel before which you are appearing does not do so, you must use legislative history as well. That is so, alas, even when the text of the statute seems entirely clear. You cannot rely on judicial statements that legislative history should never be consulted when the text is clear—not even when those statements come from opinions of the court before which you’re appearing.
+
+Clarity too often turns out to be in the eye of the judicial beholder.
+
+
+
+Conducting a thorough review of the history of major legislation is often very time-consuming, hence costly. If you have a cost-conscious client and what you consider to be an irrefutable clear-statement case, you might want to defer that task (if possible) until you see what opposing legislative history the other side comes up with. If there is nothing, it’s probably a waste of time to demonstrate that the legislative history says what the statute says. But the court may not consider the text to be as crystal-clear as you do. So if money is no object, you should argue that the clarity of the text is confirmed by the legislative history.
+
+
+
+To exemplify a legislative-history battle, let’s return to the Jackson divorce case. John Jackson’s attorney discovers that what triggered the enactment of § 201(e) was the Soviet Union’s announcement in February 1973 that it would adhere to the Universal Copyright Convention. In literary circles, this was seen as a cunning strategy to suppress the works of Soviet dissidents, such as Alexander Solzhenitsyn, who had not yet emigrated. If the Soviets passed legislation nationalizing all overseas rights in dissidents’ writings, then the Soviets could sue in the United States to enjoin publication of those “infringing” works. That is what it was all about originally. Nothing more.
+
+
+
+The original bill, in March 1973, referred to “a foreign state or nation which purports to divest the author . . . of the United States copyright in his work.” 19 In May 1975, the Copyright Office proposed extending the language to encompass any government, “including the United States or any subdivision of it.” 20 And finally, before enactment, the language evolved into “any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright.”21 The legislative history of these revisions makes no mention of disabling a family court in a divorce case from awarding to a nonauthor spouse interests in the author spouse’s copyright.
+
+And as late as 1981 only one commentator seems to have foreseen that
+
+consequence.22
+
+
+
+So John Jackson’s attorney argues that (1) the legislature intended to protect Soviet dissidents, not American authors seeking to deprive ex-spouses of their rightful share of marital property; (2) there is no public-policy reason to treat copyrights differently from patents or other marital property; and (3) nobody in Congress seems to have envisioned this startling result, which has more to do with the Gulag than with the Jacksons’ hearth and home.
+
+
+
+And Jill Jackson’s attorney argues that (1) the words of the statute are as clear as can be; (2) the early legislative history is largely irrelevant because whatever the purpose of the original proposal, it was purposely broadened
+
+to include all governments; and (3) this broadening came at the recommendation of the Copyright Office itself.
+
+
+
+How will the case turn out? As always, that depends on how the judges react to several factors, but especially to the gravitational pull of the differing premises. Textualists will tend to rely on the words of the statute in favor of Jill. Purposivists will probably gravitate toward John’s position.
+
+Each side will try to make its premises the case’s center of gravity.
+
+
+
+Caselaw
+
+
+
+
+
+26. Master the relative weight of precedents.
+
+
+
+From a juridical point of view, case authorities are of two sorts: those that are governing (either directly or by implication) and those that are persuasive.
+
+
+
+Governing authorities are more significant and should occupy more of your attention. At the appellate level, at least, the decisions most important to your case will be those rendered by the very court before which you are appearing. (That is obviously true at the court of last resort, and in intermediate appellate courts it is often the rule that one panel cannot overrule another.) The next most important body of governing decisions (the most important at the trial-court level) is that of the court immediately superior to the court before which you are appearing. It is no use arguing at length in a trial court that your point is sustained by a proper reading of a supreme-court opinion, if the intermediate appellate court to which an appeal would be taken has already rejected that reading. Of course, when the intermediate appellate court has not spoken on the point, supreme-court opinions will be the most important.
+
+
+
+One caveat: even when the governing authority is flatly against you, if you think it is wrong you should say so, lest on appeal you be held to have waived the point. If, for example, you are appearing before a district court bound by a prior court-of-appeals precedent, it is of little use to argue at length that this precedent mistakes the law. Still, you should place in the record your view that it does so. And you should do the same in the intermediate appellate court so that there will be no doubt of your entitlement to raise that issue in the highest court of that jurisdiction.
+
+
+
+Among the precedents that are nongoverning, there is a hierarchy of persuasiveness that far too many advocates ignore. The most persuasive nongoverning case authorities are the dicta of governing courts (quote them, but be sure to identify them as dicta) and the holdings of governing courts in analogous cases. Next are the holdings of courts of appeals coordinate to the court of appeals whose law governs your case; next, the holdings of trial courts coordinate to your court; finally (and rarely worth pursuing), the holdings of courts inferior to your court and courts of other jurisdictions.
+
+
+
+Of the decisions rendered by these various categories of courts, the most persuasive within each category will be those in which the party situated like your client lost in the trial court but won reversal in the appellate court.
+
+With this kind of case, the implicit argument to the court is, “Your Honor, if you do what my adversary is asking here, you will be reversed on appeal—
+
+just as in this other case I cite.” The next most persuasive decisions will be those in which the party situated like your client won in the trial court, and the appellate court affirmed. The implicit argument to the court is, “Your Honor, if you do what I am asking here, you will be affirmed on appeal—
+
+just as in this other case I cite.”
+
+
+
+If you’re arguing to an appellate court, decisions of lower courts will almost never be persuasive as authority unless (1) they are numerous and virtually unanimous, or (2) the cited case was written by a judge renowned enough to be named in parentheses after the citation (e.g., Learned Hand, J.). Lengthy discussion of conflicting lower-court decisions is largely a waste of time. One should say something like this: “The decisions below are in conflict. [Compare _______ with _______.] This is a question of first impression for this court. The correct view is that taken by _______.”
+
+
+
+Another consideration for citations is freshness. In some rare situations, the older citation will be the better one. A constitutional-law opinion by Joseph Story on circuit, for example, might be more persuasive than a more recent opinion of a federal court of appeals. But at least where opinions of governing courts are concerned, the more recent the citation the better. The
+
+judge wants to know whether the judgment you seek will be affirmed by the current court, not whether it would have been affirmed 30 years ago.
+
+
+
+When you rely on nothing but persuasive authority, it is more important than ever to say why the rule you’re promoting makes policy sense. For example:
+
+
+
+The plaintiff’s being underage tolls the statute of limitations. Though the supreme court has not had occasion to hold to this effect, it clearly expressed that view in [cite] (dictum). Minority is similar to other grounds of disability to which tolling is applied in this jurisdiction. See
+
+[cites]. And it is uniformly held to toll the statute in our sister states.
+
+[cites] Any other rule would result in unfairness to those unable to protect their own interests. [Etc.]
+
+
+
+
+
+27. Try to find an explicit statement of your major premise in governing or persuasive cases.
+
+
+
+It is often quite easy to find a governing case with a passage that says precisely what you want your major premise to be. Say you’re defending a municipality against a § 1983 suit alleging unconstitutional racial discrimination. The facts of your case, while showing some racially disparate effects of the practice in question, are entirely devoid of any indication—or even allegation—of intent to discriminate. Your syllogism might begin with this major premise:
+
+
+
+For violation of the Equal Protection Clause, “[a] purpose to discriminate must be present.” Washington v. Davis, 426 U.S. 229, 239
+
+(1976) (quoting Akins v. Texas, 325 U.S. 398, 403 (1945)).
+
+
+
+
+
+When direct quotation is not possible, set forth the major premise in your own words, supported by citation of a case from a governing court. That case must clearly hold to that precise effect. In the example just given, if the quoted language from Washington v. Davis did not exist, you might argue: To prove a violation of the Equal Protection Clause, the plaintiff must show intentional discrimination. Washington v. Davis, 426 U.S. 229, 239 (1976).
+
+
+
+
+
+Briefing
+
+
+
+
+
+28. Appreciate the objective of a brief.
+
+29. Strengthen your command of written English.
+
+30. Consult the applicable rules of court.
+
+31. Set timelines for the stages of your work.
+
+32. In cooperation with your opponent, prepare the Joint Appendix.
+
+33. Spend plenty of time simply “getting” your arguments.
+
+34. Outline your brief.
+
+35. Sit down and write. Then revise. Then revise again. Finally,
+
+revise.
+
+36. Know how to use and arrange the parts of a brief.
+
+37. Advise the court by letter of significant authority arising after
+
+you’ve ...
+
+38. Learn how to use, and how to respond to, amicus briefs.
+
+39. Value clarity above all other elements of style.
+
+40. Use captioned section headings.
+
+41. Use paragraphs intelligently; signpost your arguments.
+
+42. To clarify abstract concepts, give examples.
+
+43. Make it interesting.
+
+44. Banish jargon, hackneyed expressions, and needless Latin.
+
+45. Consider using contractions occasionally—or not.
+
+46. Avoid acronyms. Use the parties’ names.
+
+47. Don’t overuse italics; don’t use bold type except in headings;
+
+don’t use ...
+
+48. Describe and cite authorities with scrupulous accuracy.
+
+49. Cite authorities sparingly.
+
+50. Quote authorities more sparingly still.
+
+51. Swear off substantive footnotes—or not.
+
+52. Consider putting citations in footnotes—or not.
+
+53. Make the relevant text readily available to the court.
+
+54. Don’t spoil your product with poor typography.
+
+
+
+Introduction
+
+
+
+
+
+28. Appreciate the objective of a brief.
+
+
+
+The overarching objective of a brief is to make the court’s job easier.
+
+Every other consideration is subordinate. What achieves that objective?
+
+Brevity. Simple, straightforward English. Clear identification of the issues.
+
+A reliable statement of the facts. Informative section headings. Quick access to the controlling text. In the following sections, we recommend and discuss these and other means of helping the court. But whenever you are convinced that departing from any of our recommendations, or from any convention, will make the court’s job easier, depart.
+
+
+
+Bear in mind that a good brief cannot be merely a cobbling together of separate sections and arguments but must form a coherent whole. Design the entire writing—from the statement of questions presented to the conclusion—to bring out your theory of the case and your principal themes.
+
+What two or three or four points are most important for the judge to take away? Ensure that both the structure of the brief and the content of its individual parts are designed to make these points stand out. Your purpose is to bring the court to a certain destination; the brief should be designed and built to get there.
+
+
+
+Many briefs, particularly at the trial level, deal with subordinate issues such as standing, admissibility of evidence, and qualification of experts.
+
+You should use even these briefs to ensure, unobtrusively, that the court grasps your theory of the case as a whole. Take every available occasion to shape how the judge views your case, placing the subject of the motion being briefed in the larger context of the lawsuit and fixing in the judge’s mind ideas that may help you later on.
+
+
+
+Preparatory Steps
+
+
+
+
+
+29. Strengthen your command of written English.
+
+
+
+You would have no confidence in a carpenter whose tools were dull and rusty. Lawyers possess only one tool to convey their thoughts: language.
+
+They must acquire and hone the finest, most effective version of that tool available. They must love words and use them exactly.
+
+
+
+Cultivate precise, grammatically accurate English; develop an appealing prose style; acquire a broad vocabulary. Naturally, these are not tasks you can undertake a month before your brief is due. They are lifelong projects, and you may as well begin them at once. You’ll find that it’s a pleasant set of tasks because the first and principal step is to read lots of good prose.
+
+
+
+“[C]ultivate the love of words. It is important to cultivate words, to select the right words, to put them in the right order, to know something of their meaning, of their association, of their sound.”
+
+—Rt. Hon. Lord Birkett
+
+
+
+
+
+As you read, so will you write. If you read nothing but pulp novels and tabloid newspapers, you will write like them. Most lawyers have probably not descended to that level of recreational reading material—but alas, their everyday professional, nonrecreational reading is (literarily speaking) even worse. Lawyers tend to be bad writers because their profession condemns them to a diet of bad reading material. The very highest they go up the literary ladder, so to speak, is judicial opinions—which are widely read not, heaven knows, because they are well written (nor even because they are necessarily well reasoned) but because they are authoritative.
+
+
+
+Judge Frank Easterbrook of the Seventh Circuit puts the point bluntly:
+
+“The best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that! So read good prose. And then when you come back and start writing legal documents, see if you can write your document like a good article in The Atlantic, addressing a generalist audience. That’s how you do it: get your nose out of the lawbooks and go read some more.” 23
+
+
+
+The second step in developing a good writing style is to write, and to write often. The lawyer who rarely puts pen to paper (or fingers to keyboard) will not write well. Seek out opportunities for writing not just briefs but also essays for bar journals, op-ed pieces, encomiums for departing colleagues, letters to friends—whatever will get you into the habit of converting thought into clear prose.
+
+
+
+Meanwhile, you would do yourself an enormous favor by reading and consulting some books on English grammar and usage. That shouldn’t be a dreary task if you choose good resources. Try, at the outset, Patricia T.
+
+O’Conner’s Woe Is I (2d ed. 2004)—a delightful, highly informative guide to the pressure points of the English language. If you really want to hone your skills, read Norman Lewis’s classic book Better English (1956), which is full of interesting exercises with which you can test your skills. And, of course, the classic rulebook by William Strunk and E.B. White, The Elements of Style (4th ed. 2000), is worth reading and rereading.
+
+
+
+And then you’ll need good desk references on English usage. Many lawyers don’t even know that usage guides exist. But they do, and the best ones are wonderfully informative. Essentially, a usage guide is a compilation of literary rulings on common language questions: What’s the difference between consist of and consist in? ( Consist of introduces material things, while consist in introduces ideas.) What’s the proper use of begging the question? (It means circular reasoning—assuming as true the very thing in dispute. It does not mean raising the further question or ignoring the
+
+question.) Should a comma appear before the and that introduces the final item in a series? (Preferably, yes.) Is it true that between refers to two things, and among to more than two? (No: between expresses reciprocal relations for any number of things, while among expresses a looser type of aggregate relation.) Is it all right to begin a sentence with And or But? (Yes
+
+—not only is it all right, but often it’s highly desirable.) Is it all right to write alright? (No.) Is it proper to end a sentence with a preposition? (Yes, and it always has been.) And so on.
+
+
+
+Our all-time favorite reference for English usage is H.W. Fowler’s Modern English Usage (2d ed. 1965), which gives classic answers to every major question of English usage. Get the second edition as revised by Sir Ernest Gowers—not the third edition (which in our view doesn’t measure up). The largest and most current guide to American usage is the book one of us wrote: Garner’s Modern American Usage (2d ed. 2003). It’s very much in the Fowlerian mode, and it illustrates and corrects hundreds of mistakes that have crept into English since Fowler’s day. Specifically for legal contexts, Garner’s Dictionary of Modern Legal Usage (2d ed. 1995) answers thousands of questions about legal words and phrases, and their best uses.
+
+
+
+Sometimes good writers find themselves struggling for a word that says what they want to express more precisely, or that has a more desirable tone or connotation—what we would call (but you should not call in your brief, because it is too pretentious) le mot juste. For this purpose, an indispensable reference book is a thesaurus, which gives synonyms for everything. The oldest and most commonly used is Roget’s Thesaurus (available in many editions and many formats). It should be on your shelf and should soon be dog-eared. The website www.thesaurus.com is also excellent. Use these sources to find the right word, not to enable you to use multiple words for the same concept, avoiding repetition at the expense of clarity.
+
+
+
+
+
+30. Consult the applicable rules of court.
+
+
+
+Different courts have different rules—specifying the dates when briefs are due, the subject headings they must contain, the typefaces and type sizes in which they must be set, the maximum number of words or pages they may contain, the number of copies that must be submitted, and the manner in which they are to be filed and served. Before you even begin composing, be certain that you’ll comply with the rules of the court in which you’re filing. If any of them seem unclear, call the clerk of court.
+
+
+
+Follow the rules sensibly. Occasionally lawyers interpret court rules rather perversely. Take, for example, a rule that states: “The party appealing shall be denominated the appellant, and the party against whom the appeal is taken shall be denominated the appellee.” Some lawyers believe this means that they must use the terms Appellant and Appellee throughout the brief, when in fact it simply means that the style of the case (the caption on page one) should say “Joseph Jones, Appellant v. Sally Jeffers, Appellee.”
+
+Call the parties Jones and Jeffers throughout if you can (see § 46); that way, you won’t strip the prose of human interest.
+
+
+
+Or let’s say that a court rule specifies the following parts of a brief, in this order: procedural history, statement of facts, argument, conclusion.
+
+You’re going to have to include those parts, but there’s an urgent need to do something more: state the issues before you launch into the procedural history (see § 14). Check with the clerk of court to see whether the parts listed in the rule must be exclusive or whether (as you hope) you might preface those parts with “Questions Presented,” or perhaps an
+
+“Introduction” or “Preliminary Statement” in which you state the issues and sum up your core points.
+
+
+
+Now it’s true that some court clerks are petty tyrants who will reject briefs that in any respect go beyond what the rules require. But our experience is that they are the exception. Call ahead to ask whether you can include an “Introduction” and perhaps even a “Table of Contents” in your brief.
+
+
+
+
+
+31. Set timelines for the stages of your work.
+
+
+
+There are various stages of writing: developing and gathering ideas; ordering them in an outline; drafting the text; letting the text cool; revising the text; and editing and re-editing the final product. If the only deadline you set for yourself is the filing date, you will not give each of these stages the time it deserves. Establish a schedule for completing each stage.
+
+
+
+Let’s say it’s Wednesday now, and you have a brief due to be filed next Wednesday afternoon. You have to establish intermediate deadlines, and you must work backward from the filing date to set them. You’ll want a clean, full draft first thing Monday morning so that you’ll have time to show the brief to colleagues, amplify or trim back the ideas here and there, vet the citations, and generally polish the brief. That means you’ll probably want to write the brief Saturday afternoon. (Ideally, the first draft of a brief is written in as few sittings as possible.) That means you’ll want an outline by Saturday at noon (you’re planning to use Sunday as a cooling-off period). And that means that you’ll be preparing your outline in earnest late Saturday morning, from 11 o’clock, say, until noon. And that, in turn, means that you have until 11 a.m. Saturday to master the file, read and analyze the cases, take notes, and ponder the problem. Hence your intermediate deadlines:
+
+
+
+Wednesday through Saturday a.m.: research; take copious notes; brainstorm the questions presented.
+
+
+
+Late Saturday morning: prepare an outline consisting of complete sentences (the beginning of your argumentative headings).
+
+
+
+Saturday afternoon: sit down to write, blocking out all interruptions as best you can; flesh out the brief using the skeletal headings that you’ve already devised.
+
+
+
+Monday: revise, preferably with the help of others; prepare the table of authorities and the table of contents.
+
+
+
+Tuesday: polish; verify all citations; edit and re-edit; verify all page references in the tables.
+
+
+
+
+
+The process we’ve just outlined may sound mechanistic, but it works.
+
+You’ll find that you become much more efficient as a writer if you habitually establish similar benchmarks. Of course, the process is collapsible to an hour or expandable to a yearlong writing project. In fact, it pretty well describes the way we’ve written this book.
+
+
+
+
+
+32. In cooperation with your opponent, prepare the Joint Appendix.
+
+
+
+The rules of most appellate courts provide for the filing of a Joint Appendix, which contains those parts of the record on which the parties intend to rely. In the Supreme Court of the United States, this must contain (1) the relevant docket entries in the courts below, (2) any relevant pleadings, jury instructions, findings, conclusions, or opinions, (3) the judgment, order, or decision under review, and (4) any other parts of the record that the parties particularly wish to bring to the Court’s attention. 24
+
+
+
+You obviously can’t know with complete certainty what you want included in the Joint Appendix until you know what your arguments will be, and you can’t be sure of that until your brief is finished. If your court, like the Supreme Court of the United States, permits the parties to request deferral of the Joint Appendix until after the briefs are filed, take advantage of that option. If that is not possible, be overinclusive rather than underinclusive.
+
+
+
+The Writing Process
+
+
+
+
+
+33. Spend plenty of time simply “getting” your arguments.
+
+
+
+Good briefing is the product of lengthy thought. The raw material for that deliberation is the facts of your case as you contend them to be or as they have already been conceded or determined. Each one of those facts may be the basis for a legal claim or defense, or the means of establishing or defeating the relevance of governing cases. Review them in detail and prepare a timeline—a chronological listing—of the pertinent ones that must be included in your Statement of Facts.
+
+
+
+“[T]here can be said to be three kinds of author. Firstly, there are those who write without thinking. They write from memory, from reminiscence, or even directly from other people’s books. This class is the most numerous. Secondly, there are those who think while writing. They think in order to write. Very common. Thirdly, there are those who have thought before they started writing. They write simply because they have thought. Rare.”
+
+—Arthur Schopenhauer
+
+
+
+
+
+Don’t start writing until you’ve turned the case over in your mind for days—thinking about it while you’re driving to work, discussing it with other lawyers in your firm, even talking it over with friends and family.
+
+New ideas may occur to you as you read the leading cases and scholarly authorities. And think not just about your affirmative case but also about the case you can expect from your adversary and the responses you have available.
+
+
+
+Don’t produce a first draft too soon. That tends to freeze the deliberative process, closing off alternative approaches that ought to have been
+
+explored. Jot down new ideas as they occur to you, but don’t begin writing or even outlining your brief until you have fully exhausted the deliberative process.
+
+
+
+
+
+34. Outline your brief.
+
+
+
+It’s essential to prepare an outline before you begin to write. Eliminating this step is false economy. The time you save will be more than counterbalanced by the time consumed in deletions and revisions that will be required if you charge ahead with no plan in mind.
+
+
+
+“[N]o journey can be attempted before we know to what place, and by what road, we have to go.”
+
+—Quintilian
+
+
+
+
+
+The most satisfactory form of outline sets forth each point in a full sentence, rather than merely suggesting it by a key word. The full-sentence format has three advantages: (1) it helps you understand your own organization at a glance; (2) it often flushes out redundancies, weak links, and inconsistencies; and (3) once you’ve completed it, it allows you to feel as though the brief is halfway written.
+
+
+
+At this outline stage, you will jettison the weakest arguments. If the call is a close one, you may decide to defer the cut until you’ve seen the argument fully fleshed out.
+
+
+
+Opening Brief
+
+
+
+If yours is the opening brief, the points in your outline should follow the order of argumentation described earlier: strongest point first, unless logic demands otherwise, etc. At the end of each of those separate points, refute the counter-argument that you think your adversary will bring forward.
+
+Don’t put your refutation in a single section, requiring you (and the judge) to recall each of your arguments in turn.
+
+
+
+Responding Brief
+
+
+
+If your brief is filed second, begin by “clearing the underbrush”—
+
+responding to your opponent’s seemingly persuasive points that would entirely bypass your principal point—for example, a persuasive claim of waiver or lack of jurisdiction. Then proceed in the order normal for an opening brief. But use some judgment. If your adversary’s points are visibly weak—if they are unlikely to have closed the judge’s mind to your principal point—answer them later.
+
+
+
+There is, truth to tell, a division of informed opinion about the organization of a responsive brief. Some think an appellee should arrange points just as the appellant did, i.e., without regard to preliminary refutation. We stick with Aristotle, who urged a quick demolition at the outset whenever possible (see § 9). We’ve too often seen a judge flip back to the end of the appellee’s brief, looking to see whether there is any refutation of the appellant’s point that, if true—as it seemed to be—would make the appellee’s first point utterly academic.
+
+
+
+Informed opinion is also divided about the desirability—with or without preliminary refutation—of following the basic order of argument used in the appellant’s brief rather than developing one’s own. There is something to be said for that approach. Most judges will have read the opening brief first, and the arguments will be better engaged, and easier to follow, if they both proceed in the same order. But generally speaking, we think that benefit is outweighed by (1) the prospect (often materialized) that the organization of the appellant’s brief will be a mess, and (2) the desirability of imposing your own perspective on things, placing your stronger points first and stamping your own order upon the case. Ignoring the appellant’s order of battle also enables you to prepare most of your outline and brief
+
+before the opening brief is filed. You don’t need to know what it contains, except for crafting responses to the few unanticipated points it raises. But again, don’t be rigid. Clarity is improved by having both briefs proceed in the same order, and if there’s not that much difference between your adversary’s arrangement and your own preference, use the same order.
+
+
+
+Whatever approach you take, don’t allow the outline of your responsive brief to be put into final form until you’ve seen the appellant’s brief. That is precisely why court rules give the appellee considerable time after the filing of the appellant’s brief (in the Supreme Court of the United States it is 30
+
+days) 25 instead of requiring simultaneous filing. That’s more than enough time to reorder the outline and (if you have already written your brief) to reorder sections and revise transitional passages.
+
+
+
+Reply Brief
+
+
+
+The reply brief is a different animal from the appellee’s brief. It is not a principal brief, which is expected to make the initial presentation of important points. It is designed, as its name indicates, to reply to—to answer—points already made in an earlier brief. Some think this means that it must be devoted exclusively to (1) treating any new issues raised by the appellee’s brief, and (2) answering the appellee’s attacks on the appellant’s principal brief. In this view, the reply brief should not reiterate or reinforce the arguments made in your principal brief, except by way of responding to the appellee’s attacks. We think otherwise, for two reasons.
+
+
+
+“The reply should not attempt to deal with every conceivable error or omission in the appellee’s brief which appellant is in a position to criticize. Nothing is more boring and less persuasive than a page-by-page, or point-by-point, attempt to rebut every inaccuracy, no matter how inconsequential. The reply should concentrate on what is significant.”
+
+—Robert L. Stern
+
+
+
+
+
+First, it is always desirable to place your arguments—even responsive arguments—in your own setting of the case. A mere response to the appellee’s argument without any description of your own case fails to do this.
+
+
+
+Second, and more importantly, the reply is ideally a wholly self-contained document, comprehensible without any reference to earlier writings. Why? Because many judges and law clerks have developed the habit of reading briefs in reverse order: reply first, then the responding brief, then the appellant’s initial brief. That doesn’t square with the
+
+expectations of counsel, who write their briefs to be read forward rather than backward. But you have to deal with the real world, which includes many retro-readers. Assume that the judge has only your reply brief in hand. Don’t send the judge to your adversary’s brief to understand what the case is about.
+
+
+
+The advantage of placing your reply in the setting of your own case presentation, plus the necessity of making your reply brief comprehensible to the retro-reader, suggests that you must encapsulate your case in the reply. Since there are probably more forward-readers than retro-readers, we adhere to Aristotle’s view that if your adversary has made any really telling points, you should refute them at the outset. Otherwise, begin with a quick summary of your own case, and then demonstrate the inadequacy of your opponent’s response.
+
+
+
+One thing, however, the reply brief must not contain: brand-new arguments that you didn’t think of or didn’t have space for in your principal brief. Raising new material that cannot be responded to is an unfair tactic that may (and should) alienate the court. When you have recapped your case, and replied to new issues and attacks contained in the appellee’s brief, come to a close. Oh, and one last thing: If the appellee has raised no new issues and made no attacks that you haven’t foreseen and answered in your principal brief, forgo the reply. The court doesn’t want to hear you repeat yourself.
+
+
+
+Petition for Discretionary Review
+
+
+
+Some special considerations may apply if your brief is in support of a petition for discretionary review—commonly, though not universally, called a petition for certiorari (or cert petition). Some jurisdictions purport to grant all such petitions in which there is a substantial possibility of error below. If that is the announced policy of your jurisdiction (and if you believe it), your brief, like a merits brief on appeal, should simply seek to persuade the court that the judgment below is wrong.
+
+
+
+But some courts as a matter of policy, and others as a matter of practice (whatever their policy states), generally limit discretionary appeals to cases raising significant issues of law—issues that deserve to be addressed by the highest court or on which the lower courts have disagreed. For example, Rule 10 of the Supreme Court of the United States provides as follows: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
+
+a. a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
+
+b. a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; c. a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
+
+
+
+A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. 26
+
+
+
+
+
+When you are confronted with a certiorari policy of this sort, it is utterly inadequate merely to show that the decision below is wrong. That might suffice in a very rare case, but not ordinarily. Indeed, not only is error not ordinarily a sufficient condition, it is not even a necessary one. A court of last resort will frequently grant review in a case that it believes has been decided correctly. It is interested in providing needed clarification of the law, and that can be done just as well by affirming the correct rule as by reversing the incorrect one.
+
+
+
+To have a significant chance of success, you must show that the error you complain of consisted in the adoption of an erroneous rule of law, not merely the erroneous application of a rule correctly expressed. It must, moreover, be an important rule of law, not an insignificant one. Even then, your chances are pretty slim unless you can further show that other inferior courts in the same jurisdiction have applied the rule of law for which you argue.
+
+
+
+Your outline should zero in, therefore, on these issues, rather than on the merits of your position. There will be time enough to argue the merits in
+
+great detail if discretionary review is granted. Your first task is to get in the door. Of course, the merits of the case must be argued to some extent, but not nearly in the depth that would be expected in a merits brief. And if none of the normal certiorari factors are in your favor, you may have to take a shot at getting certiorari granted simply because the case was so wrong. But that is normally a very long shot indeed, rarely worth your client’s expense.
+
+
+
+“Lawyers might be well advised, in preparing petitions for certiorari, to spend a little less time discussing the merits of their cases and a little more time demonstrating why it is important that the Court should hear them.”
+
+—Hon. Fred M. Vinson
+
+
+
+
+
+Another factor distinctive to petitions for certiorari is that judges don’t like to spend a lot of time deciding what to decide. Indeed, in most courts they won’t even read the brief in support of your petition but will rely on summaries (or on the selection of particular briefs) by law clerks. And law clerks don’t like to spend much time on this job either. It is all the more necessary, therefore, that your brief be concise and utterly clear.
+
+
+
+So it’s doubly important in a petition for certiorari to limit the issues.
+
+Some courts (the Supreme Court of the United States among them) can limit the grant of certiorari to particular issues. Such a court will rarely go into those issues that are not independently certworthy simply because one certworthy issue is present. And it will surely not take a bunch of them. The noncertworthy issues simply waste the court’s time and muddy the waters.
+
+It’s foolish to try to piggyback onto a meritorious cert petition more than one noncertworthy issue—and the error in that one should be abundantly clear.
+
+
+
+If you’re dealing with a certiorari court that takes cases to resolve lower-court conflicts on points of law, and not to revise erroneous judgments, you must exclude prior issues that might make it impossible to reach the rule of law on which there is conflict. Of course, you shouldn’t introduce those
+
+issues on your own—for example, by attaching to a certworthy constitutional issue an appeal from the lower court’s ruling on a noncertworthy statute-of-limitations point. Since constitutional issues should not be reached unnecessarily, if the court granted certiorari on both points it would have to consider the statute-of-limitations point first—and if it found for you on that, it would never reach the certworthy issue. It is unlikely to want to do that. If it had the power to cherry-pick issues, it could simply deny certiorari on the statute-of-limitations point and grant only the constitutional issue. Again, bear in mind that courts don’t like to spend a lot of time deciding what to decide. If it seems fairly certain that review of the statute-of-limitations point will not be granted, leave it out.
+
+
+
+Some prior issues, however, cannot be avoided—such as those relating to jurisdiction and those that the respondent will raise to sustain the judgment.
+
+Sometimes the certworthy issue is presented only if another (noncertworthy) finding or holding of the lower court is first overturned. It is of major importance for the petitioner to lay to rest in its brief any doubts about the existence of such troublesome prior issues. And it is of major importance for the respondent to point out that there are these hairy and insignificant issues that the court would have to deal with before it reached (if it ever could reach) the certworthy issue in the case.
+
+
+
+Response to a Petition for Discretionary Review
+
+
+
+A brief in opposition to a petition for discretionary review is as different from a merits respondent’s brief as a brief in support of a petition for review is different from a merits petitioner’s brief. Unless the only basis for the petition is that the decision below was wrong, you should focus not so much on the merits of the case as on the reasons why the usual standards for certiorari are not met. You want to argue as follows: The dispute is essentially about nothing more than a fact-finding. All other courts in the jurisdiction have expressed the same rule of law, or at least have not contradicted it. Other issues on which the petitioner has not sought certiorari suffice to sustain the judgment. There are antecedent issues that will consume the court’s time and may well prevent it from reaching the certworthy issue. Et cetera.
+
+
+
+
+
+35. Sit down and write. Then revise. Then revise again. Finally, revise.
+
+
+
+Any author will tell you that the hardest part of writing is getting started.
+
+Force yourself to write according to the schedule you have established.
+
+
+
+Write the questions presented first, the body of your argument next, and then the statement of facts. Save the introduction and conclusion for later, since they usually preview and review the argument. Last of all, write the summary of the argument. Summarizing sharpens your focus—and you may well find yourself modifying the text as you summarize it. Many judges find the summary of the argument the single most important part of a brief, so don’t omit this part—and give it the attention it deserves.
+
+
+
+For the careful writer, the hardest thing after starting is stopping. Every read-through uncovers some needed change, and the job is never really done until the copy is wrested from the diligent author’s grasp and sent off to the printer. Don’t do all your revising on the computer. Some failings—
+
+for example, a missing connection in argument or undue length—are more easily spotted in hard copy. At least one set of edits should be made on the printed page, pen in hand.
+
+
+
+It’s helpful to lay the draft aside for a time—perhaps a few days—
+
+between read-throughs. Distance often improves the writer’s perspective.
+
+This means that the time you set aside for writing the brief should be ample.
+
+
+
+“Undoubtedly . . . the best method for correction is to lay by for a time what we have written, so that we may return to it after an interval as if it were something new to us, and written by another, lest our writings like newborn infants compel us to fix our affections on them.”
+
+—Quintilian
+
+
+
+
+
+If you have the time and the friends, get some good lawyer who is not intimately familiar with the case—one who knows as much about the facts and the relevant law as the judge who will read your brief—to give the brief a quick read, about as quick as the judge’s will be. A reader off the street, so to speak, will sometimes be able to spot gaps and deficiencies that you are too close to the argument to perceive.
+
+
+
+The next-to-last read-through should be devoted solely to compression—
+
+eliminating those sentences, phrases, and words that do no work. Every word that is not a help is a hindrance because it distracts. A judge who realizes that a brief is wordy will skim it; one who finds a brief terse and concise will read every word. The final read-through should be exclusively devoted to seeing whether certain points can be put more clearly, more vividly, more crisply.
+
+
+
+Architecture and Strategy
+
+
+
+
+
+36. Know how to use and arrange the parts of a brief.
+
+
+
+Be sure to include all parts of the brief required for the court in which your brief will be filed. For this purpose, you may need to consult both generally applicable provisions (e.g., Federal Rule of Appellate Procedure 28) and the rules of the particular court (see § 30). Since some sections of a brief are highly desirable even when not required, you may have to find out (ordinarily from the clerk of court) what additions to the requirements are permitted.
+
+
+
+There is considerable variety in briefing requirements, even among courts at the same level. Two intermediate appellate courts, for example, may have quite different local rules. The difference is particularly marked, however, between appellate courts and trial courts in general. The required parts of briefs in the latter are typically many fewer. (So the Federal Rules of Civil Procedure, unlike the Federal Rules of Appellate Procedure, contain no briefing requirements.) This is understandable, since briefs at the trial level include not just posttrial briefs, which may approximate appellate briefs, but also many briefs on various filings, such as a motion for summary judgment, a motion to exclude evidence, etc.
+
+
+
+In the discussion below, we have marked with daggers those sections that should be included in all trial-court briefs. We have marked with asterisks those sections that should ideally be included in all appellate briefs and in trial-court briefs that perform a similar function.
+
+
+
+†* Questions Presented
+
+
+
+As we’ve noted, the rules of the Supreme Court of the United States require what virtually no other court rules require: that the questions presented for review be set forth on the first page of the brief, in splendid isolation from all other material. On opening the brief, the Questions Presented are the first things the Justices see.
+
+
+
+Unless the rules of your court forbid this practice (and we know of none that do), follow it religiously—even in memoranda in support of motions.
+
+Place right up front what it is you want the judges to resolve. This may well be the most important part of your brief.
+
+
+
+“[I]n every sense of the word—and in all seriousness—it can be said that the most important paragraph in a brief is the first one, in which appears counsel’s formulation of the issues presented for decision.”
+
+—Frank E. Cooper
+
+
+
+
+
+A noted lawyer—who, exactly, is unclear because the quotation is variously attributed to Rufus Choate, Clarence Darrow, John W. Davis, and others—said that he would gladly take either side of any case as long as he could pick the issues. Many advocates fail to appreciate that the outcome of a case rests on what the court understands to be the issue the case presents.
+
+You want to state the issue fairly, to be sure, but also in a way that supports your theory of the case. A well-framed issue statement suggests the outcome you desire.
+
+
+
+Take Eisenstadt v. Baird, in which the plaintiffs attacked a state law that prohibited the sale of contraceptives to unmarried people. Here is how the Supreme Court framed its conclusion:
+
+
+
+If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 27
+
+
+
+
+
+The question it was addressing, the issue it had framed, was whether the right of privacy means that. Judge Richard A. Posner of the Seventh Circuit has observed that the decision might not have seemed so clear-cut if the Court hadn’t “set up a straw man” 28—if, instead, the Court had posed the issue as follows:
+
+
+
+We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly. 29
+
+
+
+
+
+As an advocate, you want to find the premise that will pull the court toward your conclusion and then make that premise explicit in your statement of the issue. If the court decides to answer the question you pose, it will probably reach the conclusion you urge.
+
+
+
+Never forget, however, that you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable. The very first display of irrationality likely to come to the court’s attention is your manner of framing the issue presented. Make it honest and fair. Show enough respect for the intelligence of the court not to include irrelevancies.
+
+Never color the issue with loaded adjectives and argumentative consequences—as by saying that the issue is “Whether the appellee could
+
+bring this suit a long 15 years after the claim arose, risking the loss or disappearance of witnesses and evidence necessary for the defense ?” Any 15 years is a long 15 years. The loss of witnesses and the loss of evidence are reasons why the applicable statute of limitations should be enforced and are perhaps relevant factors in determining whether the longer or the shorter of two potentially applicable statutes applies. But those points belong in argument. They form no part of the issue presented. You know it, the court knows it, and you lose credibility by pretending otherwise.
+
+
+
+The most persuasive form of an issue statement—the so-called deep issue30—contains within it the syllogism that produces your desired conclusion (see § 22). Consider the case of Rousseve v. Jones,31 decided in 1997 by the Supreme Court of Louisiana. Rousseve had paid five years’
+
+worth of child support to his former wife for his daughter Aleigha. But then biological testing proved that Aleigha was not his daughter after all. So he sought reimbursement from Aleigha’s mother for the money he’d paid over the years under the false impression that he was the father. His syllogism had some appeal:
+
+
+
+
+
+Major
+
+Under Louisiana law, a husband who is not the father of his premise:
+
+wife’s child is not obliged to pay support for that child.
+
+Minor
+
+Blood tests have conclusively shown that Rousseve is not premise:
+
+Aleigha’s father.
+
+Conclusion: Rousseve was not obliged to support Aleigha (and he is entitled to reimbursement for his payments).
+
+
+
+
+
+Jones, the ex-wife, had a syllogism of her own:
+
+
+
+
+
+Major
+
+Under Louisiana law, a husband is presumed to be the father premise:
+
+of his wife’s child unless he denies paternity within one year of the child’s birth.
+
+Minor
+
+Rousseve did not deny paternity within one year of Aleigha’s premise:
+
+birth.
+
+Conclusion: Rousseve was presumed to be the father of Aleigha during the five years in question.
+
+
+
+
+
+In the end, the Louisiana Supreme Court agreed with the ex-wife. But let’s consider how that case could have been effectively presented, syllogistically, in the issue statement. It would have been all but pointless to state the issue abstractly: “Whether Rousseve is entitled to reimbursement paid during the first five years of Aleigha’s life?” Only the other parts of the brief might enlighten the reader. See what happens, however, if the ex-wife’s syllogism is collapsed into a three-sentence question presented: Under Louisiana law, a husband is presumed to be the father of his wife’s child and must support the child unless he denies paternity within one year of the child’s birth. Rousseve did not deny paternity until five years after Aleigha’s birth. Was he obliged to support Aleigha until he proved that he was not her father?
+
+
+
+
+
+In 57 words, that issue is clean and informative.
+
+
+
+When your major premise is completely obvious, it is possible to leave it implied. Aristotle termed the resulting statement an “enthymeme”—simply a syllogism with an implied major premise. For example:
+
+
+
+
+
+[Major premise
+
+A contract is not binding without consideration.]
+
+(implied):
+
+Minor premise:
+
+Johnson provided no consideration for this
+
+contract.
+
+Conclusion:
+
+This contract is not binding.
+
+
+
+
+
+Or, to turn the enthymeme into a question:
+
+
+
+Given that Johnson provided no consideration for this contract, can he enforce it?
+
+
+
+
+
+Some counsel erroneously assume that a court rule requiring the brief to contain a statement of the question presented demands a one-sentence question that contains all the relevant premises. The result is often a rambling statement that no mortal reader could wade through: Whether there was a violation of the OSHA rule requiring every incident-investigation report to contain a list of factors that contributed to the incident, when the investigation report on the June 2002
+
+explosion at the Vespante plant listed the contributing factors in an attachment to the report entitled “Contributing Factors,” as opposed to including them in the body of the report?
+
+
+
+
+
+That’s a muddle. We forget the question by the time we reach the question mark. One reason is that the time is out of joint: we first get a word posing a present interrogative ( whether), then back up to what happened, and then, with the question mark, have to jump back to the present.
+
+
+
+The better strategy is to break up the question into separate sentences totaling no more than 75 words. The first sentences follow a chronological order, telling a story in miniature. Then, emerging inevitably from the story, the pointed question comes at the end:
+
+
+
+OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002
+
+explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled “Contributing Factors.”
+
+Did the report thereby violate OSHA rules?
+
+
+
+
+
+Instead of one 62-word sentence, we have three sentences averaging just 18
+
+words. The information is presented in a way that even readers unfamiliar with this area of the law can easily understand.
+
+
+
+Moreover, because seasoned legal readers are always impatient to find out what the case is about, opening a brief with the deep issue satisfies a real need. It’s infinitely better than the naked, uninformative legal question:
+
+“Did the incident-investigation report on the June 2002 explosion at the Vespante plant violate OSHA rules?”
+
+
+
+Statement of Parties in Interest
+
+
+
+Rule 24(1)(b) of the Supreme Court of the United States provides that a merits brief must contain a “list of all parties to the proceedings in the court whose judgment is under review” unless the caption of the case names them. Comply with any similar requirement of your court.
+
+
+
+* Table of Contents; Table of Authorities
+
+
+
+The Table of Contents sets forth your section headings and subheadings.
+
+It is primarily a finding tool, but it also serves a second purpose: many judges look at it first to get a quick overview of the argument. That’s one reason you should make your section headings and subheadings full, informative sentences (see § 40). For the same reason, be sure to format the Table of Contents with outline-style progressive indentation displaying the hierarchy of your argument—that is, subsections indented more than sections.
+
+
+
+The Table of Authorities is more important than you might think. Some judges will fan through it just to assess how careful a lawyer they are dealing with. Compiling the table is not a job that can be left to an unsupervised secretary. Unless the rules provide otherwise, include separate sections for (1) cases, (2) official texts (constitutional provisions, statutes, regulations, and ordinances), and (3) miscellaneous authorities. Cases should be in alphabetical order; official texts should be grouped by type and, within each type (except for constitutional provisions), should be set forth in order of enactment or adoption; miscellaneous authorities should be in alphabetical order. Citations must be in proper form. Briefs filed in the Supreme Court of the United States by the Solicitor General provide a good model; they’re available online.
+
+
+
+Never trust computers to prepare the tables automatically. And because last-minute editing of the brief may alter the pagination, always run a final check of the page references in both tables. Also, KeyCite or Shepardize the cases in the Table of Authorities. Allow a full day for all this work.
+
+
+
+Constitutional and Statutory Authorities
+
+
+
+The rules of the Supreme Court of the United States require the constitutional and statutory authorities involved in the case to be cited (not necessarily quoted) in a separate section of the brief. 32 It seems to us not essential to follow this practice if the rules of your court don’t require it. If you do follow it, little is to be gained by quoting as well as citing the provisions in question. If they are few and concise, they are better quoted where relevant in your Argument, as they’re being discussed. If they are extensive and lengthy, they are better included in an Appendix (if that’s allowed).
+
+
+
+* Statement of Jurisdiction
+
+
+
+The Federal Rules of Appellate Procedure require a statement of the basis for jurisdiction, not only of the court of appeals, but also of the district court or the agency from which appeal is taken, including citations of applicable statutory provisions and a statement of facts and filing dates establishing jurisdiction. 33 Some courts require no statement of jurisdiction whatever, but in our view it is good self-discipline (and insurance against embarrassment) to provide it: “This Court has jurisdiction under ___________.” If there is serious dispute or even serious doubt about whether the suit or appeal comes within that provision, this is not the point to get into it. Discuss that in the Argument section of your brief.
+
+
+
+† Introduction or Preliminary Statement
+
+
+
+Some court rules and customs provide for a separate Introduction or Preliminary Statement. In motion practice, where there typically is no Summary of Argument, the Introduction may be used to set forth the questions presented and the argument summary. In an appellate brief, however, if you have written a competent statement of the Questions Presented, and plan to provide a Summary of the Argument, we see little need for a separate Introduction, especially one that precedes the Statement of Facts and Proceedings Below. Perhaps the court rule can be satisfied by using the Introduction to set forth the questions presented or by titling your Summary of Argument section “Introduction and Summary of Argument,”
+
+and making a brief introduction at that point.
+
+
+
+Whatever you do, don’t allow this section to duplicate what is written elsewhere. Repetition bores, and boredom invites skimming.
+
+
+
+Proceedings Below
+
+
+
+Some appellate courts require a separate statement of the proceedings below—a division of the brief sometimes called “Statement of the Case.” 34
+
+Under many court rules, this precedes the Statement of Facts.
+
+
+
+That order of things is troublesome. Often the proceedings below aren’t comprehensible without an understanding of some of the facts to which the proceedings pertain. The rules of the Supreme Court of the United States do not provide for such a separate division of the brief, and the proceedings below are set forth at the end of the section dealing with the facts giving rise to the controversy—that is, both the operative and the procedural facts appear in a single narrative, in the chronological order in which they occurred.
+
+
+
+If your court rules permit you to order your brief this way—perhaps by heading your section “Statement of Facts and Proceedings Below”—you should do so.
+
+
+
+Wherever your description of the proceedings below appears, limit it to the procedural facts, the decisions, and the reasons for decisions relevant to the matters on appeal. The court isn’t interested in matters that don’t affect the issues at hand, such as settlements reached on side issues and orders not germane to the appeal. Avoid needless detail. Your goal at this stage isn’t to argue, but to tell the court how the issues before it arose procedurally and how the case got here.
+
+
+
+†* Statement of Facts
+
+
+
+In most jurisdictions, rules require a Statement of Facts soon after the introduction. (In the Supreme Court of the United States, it’s called the
+
+“Statement of the Case.”) It is narrative rather than argument: a description of the facts of the case and the proceedings to date, with citations of the Joint Appendix or the record. Omitting a fact crucial to your case is a critical mistake. An even worse one is misstating a fact. Nothing is easier for the other side to point out, and nothing can so significantly damage your credibility.
+
+
+
+Although you must not misstate a fact, you need not exclude all matters that are disputed. Sometimes you must include them. A posttrial merits brief in the trial court, for example, should set forth your view of what happened. Just be sure you do not present it as undisputed truth. “The evidence that the plaintiff introduced showed that . . . .” Of course, if you are appealing a judgment that included findings of fact, you must accept them as true—unless one of the grounds for your appeal is that they are clearly erroneous. If you are appealing from a grant of summary judgment, you need not show that the version of the facts your evidence established is true, but only that the evidence raises a genuine dispute about a material fact. And so forth. (The variations of proper factual allegations are so numerous that it is impossible to itemize them here.)
+
+
+
+“The notion that the facts, whether simple or complicated, speak for themselves is sheer nonsense. In reality, there are as many ways of telling the story of any case as there are fleas on a dog. Subtleties of arrangement and emphasis; the selection of particular words or phrases; and innumerable little twists and turns all play their significant part and are worthy of study.”
+
+—Harold R. Medina
+
+
+
+
+
+To say that the Statement of Facts must not contain argument is not to say that it cannot be designed to persuade. Like everything else in your brief, it must be. You advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each. Rhetorically speaking, you’ll be putting some facts in high relief and some in low relief—and you’ll be omitting others altogether. You’ll be engaging in what Aristotle called amplification and diminution. You will amplify the facts that suggest your desired outcome by placing them prominently in the narrative.
+
+
+
+Be careful, however, about introducing sympathetic facts that are legally irrelevant. It is reasonable to humanize your tort-plaintiff client by describing her as an 80-year-old widow. It goes over the top to emphasize that her deceased husband was a county judge. The judges (the living ones reading your brief) will see through this naked play for favoritism and will think less of you because obviously you think less of them.
+
+
+
+A fair statement of the facts includes relevant facts adverse to your case.
+
+They will come out anyway, and if you omit them you simply give opposing counsel an opportunity to show the court that you’re untrustworthy. Of course, don’t include damaging facts that are irrelevant—
+
+for example, the fact that the opposing party is the penniless widow of a Purple Heart recipient. Moreover, if your research has uncovered a subsidiary issue that favors the other side but that opposing counsel may not be aware of, don’t flag the point by including facts that can be relevant only to that issue.
+
+
+
+A narrative must be basically chronological. Lawyers commonly fail in this fundamental point of exposition by rehearsing a witness-by-witness account of a hearing or trial. No. A witness-by-witness account is appropriate only when the issue is evidentiary support for the trial-court judgment—and even then it should be ordered fact-by-fact, and witness-by-
+
+witness only as to each fact. In general, the way to state facts is to tell the story not of witnesses on the stand but of the events that gave rise to the legal dispute. In preparing to do this well, you’ll need to produce a raw-material “chronology of events” sequencing all the facts in order by time, day by day and hour by hour.
+
+
+
+But never begin statement after statement with dates. A few dates will be important, but for the others simply say “The next morning . . . ,” “That afternoon . . . ,” etc. Remember: if you spell out every date, you confuse the reader and bog down the story.
+
+
+
+If your brief is responding to an opponent’s brief, you will almost certainly want to set forth a full counterstatement of facts. Why? Because it’s almost unimaginable that competent opposing counsel will tell the story in a way that is best for your client. If you don’t tell the story your way, you’ll surrender dozens of opportunities to foreshadow your legal and equitable arguments.
+
+
+
+But making a full counterstatement presents a problem: the court may not read it. (Who wants to read the same mystery twice?) Some advise that if you want to ensure that the court will read your significant corrections to the first-filed brief, you should simply say that you agree with the appellant’s statement of facts, but “with the following significant exceptions.” The theory is that the court will be certain to read that. All in all, though, we think it best to make a complete counterstatement, emphasizing the most salient disagreements at the outset. This is preferable not only because of the tactical advantage of getting the story as you tell it before the court (if the court reads it), but also because you want your brief to be self-contained—a complete document to which the court can refer for all aspects of the case.
+
+
+
+* Summary of Argument
+
+
+
+The rules of some courts require a Summary of Argument and don’t count it against the brief’s page or word limit. Other courts don’t require it and subtract it from your permitted length. You should include it anyway.
+
+Write it after completing the Argument, though it precedes that section in your brief.
+
+
+
+“The Summary may be . . . the only part of the brief some judges will ever read, either because they find the case simple enough to decide without further study or because they are too overloaded with work, or simply unwilling to work very hard.”
+
+—Robert L. Stern
+
+
+
+
+
+Some judges never read the Summary of Argument, which will precede the Argument section of your brief. Why read a cut-down version when you’re about to read the real thing? Other judges, however, consider the Summary of Argument indispensable—indeed, the most important part of the brief. As long as judges of the latter sort exist, and the judge you’re appearing before has not publicly committed, you must include the Summary. Omit it only if it is not required, if it is counted against your brief limit, and if it takes up space that you absolutely require for full exposition of your points.
+
+
+
+Unlike the Introduction, the Summary of Argument is not just a preview of the topics of argument that are to follow. It is a short version of the substance of the arguments under each topic. How short is short? In a 50-page brief, we recommend no more than five pages, and ideally no more
+
+than three. State the main lines of thought without embellishment, omit quotations, and cite only key cases (if any at all).
+
+
+
+†* Argument
+
+
+
+The Argument is the guts of your brief, the part for which all the rest is just preparation and summary. Two points are crucial.
+
+
+
+First, keep your eye on the ball. Write down at the outset, and keep before you throughout your drafting of the Argument, the syllogism that wins your case. Each aspect of the Argument must be consistent with this and should be no more sweeping than necessary to support it. Nothing should be irrelevant to it.
+
+
+
+Second, be brief. We have said it before, and (contrary to what you must do in your Argument) we will say it again: a brief that is verbose and repetitious will only be skimmed; a brief that is terse and to the point will likely be read with full attention. So a long and flabby brief, far from getting a judge to spend more time with your case, will probably have just the opposite effect.
+
+
+
+Ponder this: Judges often associate the brevity of the brief with the quality of the lawyer. Many judges we’ve spoken with say that good lawyers often come in far below the page limits—and that bad lawyers almost never do.
+
+
+
+Brevity requires ruthlessness in wringing out of your argument everything that doesn’t substantially further your case: entire points that prove to be weak; paragraphs or sentences that are unnecessary elaboration; words and phrases that add nothing but length.
+
+
+
+Brevity means abandoning string cites with more than three cases. (If you’re dueling with opposing counsel about what constitutes “the weight of authority,” put all your cases in a footnote.) Indeed, string cites should not be used at all except for propositions of law that may be novel to the court.
+
+Obvious points can be made by citing a single governing case, a statute, or even a well-known treatise: “No contract is enforceable without valid consideration. Smith v. Jones [citation].”
+
+
+
+Never ask for extra pages in a brief. Never. (Well, almost never.) Hire some good editors instead.
+
+
+
+“[W]hen judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief.”
+
+—Hon. Alex Kozinski
+
+
+
+
+
+If you’re writing for a multijudge panel whose composition you know beforehand, avoid the temptation to direct your argument solely to the judge whom you expect to be the “swing” vote. Write for the whole court.
+
+Obvious pandering to the idiosyncratic views of a single judge, to the exclusion of the others, will be noticed and resented. Even if you think the rest of the panel is safely in your corner, don’t let that presumptuous calculation shine forth in your brief. The same holds true, of course, for your oral presentation.
+
+
+
+A final thought: If you represent an appellee or respondent, rely on the trial court’s opinion. You may occasionally be defending a judgment on which the trial court’s opinion is simply indefensible, and then you must argue for affirmance on other grounds. Ordinarily, however, the trial court did the right thing (in your estimation) for the right reason. Refer to and rely on the trial court’s opinion. There are three good reasons: (1) it’s persuasive because it represents the conclusion of another judge in this very case; (2) deferential treatment of the opinion below shows the appellate court that
+
+you respect the bench; and (3) you may have to appear again before that same trial judge, who will not appreciate your repudiating on appeal the goods you successfully peddled at trial.
+
+
+
+†* Conclusion
+
+
+
+Most court rules require, as a separate section, a conclusion—in the words of the rules of the Supreme Court of the United States, “[a]
+
+conclusion specifying with particularity the relief the party seeks.”35 Some brief-writers, including the Solicitor General of the United States, take this to permit nothing more than the request for relief (“The judgment of the court of appeals should be affirmed”).
+
+
+
+We think you should be more ambitious. You must include the request for relief, to be sure. But you can preface that with a true conclusion to your argument—one or two paragraphs encapsulating your winning syllogism in a fresh and vivid way. Try to make it more than a pro forma short regurgitation of what has preceded. It should be, so to speak, the distance runner’s devastating kick at the end of the race.
+
+
+
+Appendix
+
+
+
+If the arguments in a case refer to many texts—for example, many related regulations that shed light on the meaning of the particular regulation in question—it’s a good idea to collect these texts in an Appendix to the brief.
+
+Even if they are quoted piecemeal in your Argument section, you’ll facilitate comprehension by setting them next to each other, all in one place.
+
+
+
+You can’t be sure that the judge reading your brief will lay it down to look up your reference to the Code of Federal Regulations (which may not be easily accessible anyway) or even to consult a compendium of the regulations in the Joint Appendix. Any text essential to your brief should be in your brief. Note, however, that some courts have special rules or practices involving appendixes; unless the rules clearly permit one, you should check with the clerk’s office.
+
+
+
+
+
+37. Advise the court by letter of significant authority arising after you’ve filed your brief.
+
+
+
+If you don’t expect an immediate ruling, you will naturally keep track of developments in the field—new legislation and new rulings from governing authorities. If a significant development supports your case—or even that of the other side—you should bring it to the attention of the court by letter, with a copy to opposing counsel.36 The letter should concisely explain why the development supports your case, or does not substantially impair it. If oral argument has been scheduled for a later date, it is unprofessional to withhold favorable new authority and spring it on opposing counsel at that time.
+
+
+
+Try to keep your letter to one page.
+
+
+
+
+
+38. Learn how to use, and how to respond to, amicus briefs.
+
+
+
+The major advantage of making or clarifying law through legislation is that in theory—and in practice, if it is done right—all interested parties can have their say. Not so with adjudication. To be sure, in principle the adjudicative judgment binds only the parties before the court. The doctrine of stare decisis, however, ensures that the legal rules necessary to the court’s decision become the law for everyone within the court’s jurisdiction.
+
+Thus, those who frequent the hearings of the Supreme Court of the United States are familiar with the scene in which a courtroom full of tall-building lawyers, meters running on “high,” winces in pain as some trial lawyer inexpert at appellate advocacy (but lucky enough to have gotten cert granted) butchers a point of law crucial to all their clients.
+
+
+
+The amicus brief is an increasingly popular device designed with the hope of giving these other interested parties their say. We say “with the hope” because judges rarely read all the amicus briefs. They will surely read one filed by the United States, probably one filed by the ACLU in a civil-rights case or by the AFL-CIO in a labor-law case, and probably one filed by a lawyer in whose integrity and ability they have special confidence (yet another reason to develop a reputation for these qualities). The rest will very likely be screened by law clerks, with only a few (if any) making it to the judge’s desk.
+
+
+
+Amicus briefs pose special problems, both for the side they favor and for the side they oppose. It is difficult to generalize about them, since they serve so many different purposes. Perhaps the most common purpose, at least in courts of last resort, is to enable the officers of trade associations to show their members that they are on the ball. To achieve this end, it really
+
+does not matter what the amicus brief says. It can track the party’s brief; the filing of it is what counts. The same can be said of the amicus brief filed by 35 states, or by the chief law-enforcement officers of 50 metropolitan jurisdictions. The very cover of the brief makes its principal point—a very telling point in support of a petition for discretionary review: this case involves an issue of grave national importance.
+
+
+
+With respect to amicus briefs on your side of the case, the best advice we can give is a caveat: it is perfectly appropriate to encourage filings by amici
+
+—for example, by advising the civil division of the Justice Department or the National Association of Attorneys General that your case involves an issue in which they have a considerable stake. But it is unethical for you or your client to have any part in funding or preparing the amicus brief. You can tell an inquiring amicus what you intend to argue, but do not suggest what the amicus should argue to complement that. Coordination is the amicus’s job, not yours.
+
+
+
+What about amicus briefs on the other side of the case? You cannot afford to ignore them entirely. Significant additional points raised by a prominent amicus (the United States, for example, or the agency with responsibility for the field that the litigation involves) must be answered.
+
+Yes, it does seem unfair—rather like giving your adversary double the page limit that you have—but life is like that. You can probably afford to make no response to the other amici, unless one of them makes a seemingly persuasive argument that is fundamentally different from your adversary’s approach—for example, arguing that the dispositive text has a meaning different from what your adversary claims, but one that still causes your client to lose. You should respond to this briefly on the merits, but preface the response with the protestation that the point was not raised below and is not fairly included within the question on which discretionary review was granted. As for the other amicus briefs, say nothing—but be prepared to answer at oral argument questions based upon their contents.
+
+
+
+An increasingly popular category of amicus brief is the academic brief
+
+—“Brief on Behalf of Legal Historians,” or “Brief on Behalf of Professors
+
+of Securities Law.” These are usually drafted by a few professors and then circulated from law faculty to law faculty, seeking professorial sign-ups.
+
+Advocacy and scholarship do not go well together, which is why many academics never lend their names to professorial amicus briefs. Some judges, however, may give these filings undue weight. An easy way to cut them down to size is to run a literature check under the names of the signatories. You’ll often find that most of them have produced no scholarly publication on the point in question or sometimes even in the field at issue.
+
+Point this out to the court. And if it is so, point out that some academic publications (by professors who remain, perhaps, too immersed in their scholarship to hustle up an advocacy brief) favor your side of the case. If the academic brief seems particularly damaging, you might take the trouble to check the scholarly writings of the signatories; some professors have been known ( O tempora, O mores! ) to join a brief that flatly contradicts their own writings. By noting this, you’ll help both the court and the academy.
+
+
+
+What if you’re writing an amicus brief yourself? Don’t replow the ground you expect the party you’re supporting to cover— unless you have reason to believe that the party you’re supporting is using a particularly dull plow. It sometimes happens (though rarely) that an amicus brief will do a much better job than the party’s brief on the party’s own basic theory of the case. Ordinarily, however, you should try to develop a “take” on the case that is different from what the party produces; or to discuss in great depth an aspect of the case (for example, historical material) that the party will not have much time for; or perhaps (if you are supporting the appellee) to defang a particular amicus brief filed on behalf of the appellant. Our constant injunction of brevity has special force here, since not even the demands of duty drive judges to read amicus briefs that are bloated. Make the one or two points (preferably one) that you think will contribute something important and new—and close.
+
+
+
+Writing Style
+
+
+
+
+
+39. Value clarity above all other elements of style.
+
+
+
+In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sacrificed if they detract from clarity. This means, for example, that the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms. It means that you must abandon interesting and erudite asides if they sidetrack the drive toward the point you are making. It means that you should never use a word that the judge may have to look up. It means that nothing important to your argument should appear in a footnote.
+
+
+
+“All the careful strategy in the world will be of no assistance to you unless you write clearly and forcefully. And clarity and power are above all the fruit of simplicity.”
+
+—Hon. Irving R. Kaufman
+
+
+
+
+
+Further, it means shunning puffed-up, legalistic language. Make your points and ask for your relief in a blunt, straightforward manner.
+
+
+
+Wrong: The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.
+
+
+
+Right: Johnson requests entry of summary judgment.
+
+
+
+
+
+Clarity is amply justified on the ground that it ensures you’ll be understood. But in our adversary system it performs an additional function.
+
+The clearer your arguments, the harder it will be for your opponent to mischaracterize them. Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means—and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak! This can’t happen to you—your opponent will not be able to distort what you say—if you are clear.
+
+
+
+
+
+40. Use captioned section headings.
+
+
+
+Many court opinions dispense with captions for sections and subsections, relying on numbers and letters alone (I, II, and III; A, B, and C within each). Whatever the value of that practice in opinions (and even that is questionable), it’s not a good approach for briefs. Since clarity is the all-important objective, it helps to let the reader know in advance what topic you’re about to discuss. Headings are most effective if they’re full sentences announcing not just the topic but your position on the topic: Not
+
+“I. Statute of Limitations” but “I. The statute of limitations was tolled while the plaintiff suffered from amnesia.”
+
+
+
+The section headings in a typical appellant’s brief might read as follows: 1. The four-year statute of limitations bars this action because Bartleby waited six years to file suit.
+
+2. Two essential elements of fraud—intent to deceive and detrimental reliance—were not established.
+
+a. The record contains no evidence of an intent to deceive.
+
+b. The record contains no evidence of detrimental reliance.
+
+3. Conclusion.
+
+
+
+Theoretically, each of these headings could be further broken down into subheadings. Every argument, for example, could be divided into (1) major premise, (2) minor premise, (3) conclusion, and (4) refutation of opposing arguments. But such excessive subdivision clutters more than clarifies.
+
+Avoid overkill.
+
+
+
+
+
+41. Use paragraphs intelligently; signpost your arguments.
+
+
+
+Section headings are not the only means of mapping your argument.
+
+Within each captioned section, paragraph breaks perform the same function.
+
+The first sentences of paragraphs (your fifth-grade teacher called them
+
+“topic sentences”) are as important as captioned section headings in guiding your readers through your brief—telling them what next thought is about to be discussed. Paragraph breaks should not occur randomly, inserted simply because the last paragraph was getting too long. They should occur when you are moving on to a new subpoint and wish to signal a change of topic.
+
+
+
+One writer on brief-writing (who must remain nameless) suggests that no paragraph should be more than five sentences long. We think that’s bad advice. Your readers didn’t make it to the bench by reading only Classic Comics. Judges are accustomed to legal argumentation, which often—
+
+indeed, usually—requires more than five sentences to develop an idea. Use as many sentences as the thought demands. If the paragraph is becoming unusually long (say a page of your brief), break the idea into two paragraphs if possible. (¶ “Another factor leading to the same conclusion . .
+
+. .”) Some ideas will take only five sentences—indeed, some may take only three. But a brief with paragraphs of rigidly uniform length is almost sure to be a bad brief. Use what it takes.
+
+
+
+“The topic sentence . . . smooths the way from paragraph to paragraph by binding that which has been said to that which is going to be said. By hooking the previous series of ideas to the coming one, it provides momentum.”
+
+—Sherman Kent
+
+
+
+
+
+In helping the reader follow the progression of thought—both between and within paragraphs—guiding words are essential. Consider the difference between the following two progressions: (1) “He is not a great sprinter. He came in third.” (2) “He is not a great sprinter. But he came in third.” The word “but” signals that the next thought will somehow qualify the point just made. Or your second sentence might have been “After all, he came in third”—the “After all” signifies that the upcoming thought will affirm the previous one. Or you might have used a subordinating conjunction: “Although he is not a great sprinter, he came in third.”
+
+
+
+There are many such guiding words and phrases: moreover , however (preferably not at the head of a sentence), although, on the other hand, nonetheless, to prove the point, etc. These words and phrases turn the reader’s head, so to speak, in the direction you want the reader to look.
+
+Good writers use them abundantly.
+
+
+
+Normally, the very best guiding words are monosyllabic conjunctions: and, but, nor, or, so, and yet. Professional writers routinely put them at the head of a sentence, and so should you. There’s a myth abroad that you should never begin a sentence with a conjunction. But look at any species of reputable writing—whether it’s a good newspaper, journal, novel, or nonfiction work—and you’re likely to find several sentences per page beginning with one of those little connectives. You can hardly achieve a flowing narrative or argument without them.
+
+
+
+
+
+42. To clarify abstract concepts, give examples.
+
+
+
+Legal briefs are necessarily filled with abstract concepts that are difficult to explain. Nothing clarifies their meaning as well as examples. One can describe the interpretive canon noscitur a sociis as the concept that a word is given meaning by the words with which it is associated. But the reader probably won’t really grasp what you’re talking about until you give an example similar to the one we gave earlier: “pins, staples, rivets, nails, and spikes.” In that context, “pins” couldn’t refer to lapel ornaments, “staples”
+
+couldn’t refer to standard foodstuffs, “nails” couldn’t refer to fingernails, and “spikes” couldn’t refer to hairstyles.
+
+
+
+
+
+43. Make it interesting.
+
+
+
+To say that your writing must be clear and brief is not to say that it must be dull. Of course, you should employ the usual devices of effective writing: simile, metaphor, understatement, analogy, and antithesis. But you shouldn’t use these or other devices of style for their own sake. They are helpful only if they cause the serious legal points you’re making to be more vivid, more lively, and hence more memorable.
+
+
+
+“[I]n everything monotony is the mother of boredom.”
+
+—Cicero
+
+
+
+
+
+Three simple ways to add interest to your writing are to enliven your word choices, to mix up your sentence structures, and to vary your sentence lengths. With words, ask yourself whether there’s a more colorful way to put it. With sentences, guard against falling into a monotonous subject-verb-object rut—especially when it’s the same subject, sentence after sentence. And remember that an occasional arrestingly short sentence can deliver real punch (“This wolf comes as a wolf”).
+
+
+
+
+
+44. Banish jargon, hackneyed expressions, and needless Latin.
+
+
+
+By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case ? Does it have anything to do with instant coffee? Alas, to tell the truth, it’s no different from this case or even here. Write normal English. Such as a demonstrative adjective ( such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party.
+
+Pretend that you’re telling your story to some friends in your living room; that’s how you should tell it to the court.
+
+
+
+Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, “(hereinafter ‘the Secretary’).” No one will think that your later references to “the Secretary” denote the Secretary of Defense, or perhaps your own secretary.
+
+
+
+Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness, through overuse, no longer pleases but bores. Such-and-such a case “and its progeny” is a good example. Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t
+
+settled; or that something is true “beyond peradventure of doubt.” The test is: have you seen the vivid phrase a lot? If so, odds are it’s a cliché.
+
+
+
+“The readability of Holmes and Cardozo is due in part to their mastery of the native tongue and subjugation of the acquired language of the law.”
+
+—Hon. Wiley B. Rutledge
+
+
+
+
+
+Some Latin expressions are convenient shorthand for rules or principles that have no English shorthand equivalent ( res ipsa loquitur, for example, or inclusio unius est exclusio alterius). But avoid using other Latin phrases, such as ceteris paribus, inter alia, mutatis mutandis, and pari passu. Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit.
+
+
+
+
+
+45. Consider using contractions occasionally—or not.
+
+
+
+The Garner view: In a book I wrote in 1991, this advice appeared:
+
+“Contractions are usually out of place in legal writing. Instead of can’t, prefer cannot; instead of won’t, will not; and so forth. . . . Common contractions such as hasn’t and didn’t may be perfectly appropriate in correspondence, but not in court papers.”37 Eleven years later, in the second edition, the relevant passage was dramatically changed: “You might well have heard that contractions don’t belong in legal writing. The view seems to be that they aren’t professional. But that’s just a shibboleth. In fact, the decision whether to use a contraction often boils down to this: do I want to sound natural, or do I want to sound stuffy?” 38
+
+
+
+What accounted for the about-face? Mostly the influence of John R.
+
+Trimble, author of a classic book on writing,39 who urged a change of position on grounds that contractions help you achieve a more conversational rhythm in your writing. He’s not the only respected expert advocating contractions.40 Unsurprisingly, empirical studies have shown that frequent contractions enhance readability. 41 And then, of course, there are the respected legal writers who’ve used contractions as a way of making their writing more readable, such as Clarence Darrow, Griffin B. Bell, Richard A. Posner, Frank Easterbrook, and Alex Kozinski. And consider that every President since President Ford in 1975 has used contractions in the State of the Union Address. Did these contractions diminish the perceived “dignity” of the addresses? Seemingly not.
+
+
+
+Contractions ought to become more widespread in legal writing. That includes briefs and judicial opinions. But they shouldn’t appear at every
+
+single turn—only when, in speaking, one would most naturally use a contraction.
+
+
+
+As for the idea that contractions may arouse negativity in the judicial mind, it doesn’t square with experience. If contractions are distractingly beneath the judicial reader’s dignity, then what kind of reaction occurs when judges’ eyes are accosted with contractions on virtually every page of the New Yorker, Time, Newsweek, and the Economist? In some sentences, are not contractions all but obligatory? Do you not think?
+
+
+
+(Aside: In his ensuing discussion of contractions, Justice Scalia disparages my insistence that we make this text gender-neutral. He yielded on the point in part, I think, because my usage books recommend this strategy in extended entries entitled “Sexism,” and I’m grateful that he did so. In my view, that’s an instance of adopting a convention to avoid distracting readers. So I advocate “invisible gender-neutrality.”42 In a way it’s similar to the debate on contractions: I think the uncontracted words will distract or subliminally repel readers, and he thinks the contraction will distract or subliminally repel readers. It’s an empirical issue that will no doubt be tested in years to come.)
+
+
+
+The Scalia view: Clarence Darrow and Griffin Bell may well have made their “legal writings” more readable by occasional use of contractions. But I doubt that the legal writings thus vulgarized (look the word up before you consider it too strong) included their briefs filed in court. As for Judges Posner, Easterbrook, and Kozinski, life tenure is a wonderful thing; neither they nor any client of theirs pays a price for their contractions. (Kozinski, for Pete’s sake, has been known to write an opinion with 200 movie titles embedded within it.) And the State of the Union Address is not writing but (hello!) an address. The rules for oral communication are different. A proper test would be whether Presidents use contractions in their signing statements, veto messages, and executive orders. (They do not.)
+
+
+
+The issue before us here, however, in this advice-giving treatise on legal argumentation, is quite simply whether contractions are (1) more or (2) less likely to advance your cause. I have no doubt that (2) is the answer. All of us employ different styles of speech, and of writing, for different occasions.
+
+Some words perfectly proper in some circumstances are jarringly inapt in others. That is why good dictionaries have the designation “colloq. ” Written forensic presentations have always been thought demanding of more formal expression, just as oral forensic presentations are demanding (see § 73) of more formal attire.
+
+
+
+Formality bespeaks dignity. I guarantee that if you use contractions in your written submissions, some judges—including many who are not offended by the use of contractions in the New Yorker, Time, Vogue, the Rolling Stone, Field and Stream, and other publications not addressed to black-robed judges engaged in the exercise of their august governmental powers—will take it as an affront to the dignity of the court. (“Why next, to ensure a more ‘conversational’ environment, this cheeky fellow will have us shed our robes, and start calling us by our first names!”) And those judges who don’t take offense will not understand your brief, or vote for your case, one whit more readily. There is, in short, something to be lost, and nothing whatever to be gained. Unless, of course, you and your client share with my esteemed coauthor the Jacobin passion to bring written discourse in the forum down to the level of spoken discourse in the marketplace.
+
+
+
+As for the telling example “Do you not think?”: that sounds klutzy for two reasons. First, because it is colloquial in dropping the last word, “so,”
+
+and the combination of informality and formality is absurd. And second, because it is almost impossible to conjure up an example of formal writing that asks the reader a direct question; the very act of asking is inherently informal, so couching the question in formal terms seems absurd. (Yes, formal writings sometimes contain rhetorical questions that answer themselves; they are not seeking the reader’s opinion, but are addressed, so to speak, to the Spirit of Reason.) Moreover, surely writings that use contractions also confront clumsy patches that must be written around—
+
+unless my coauthor employs the unacceptable “ain’t” or suddenly inserts among his folksy contractions the very formal “am I not.”
+
+
+
+Which suggests another comment that is almost a point of personal privilege: I find it incomprehensible that my esteemed coauthor, who has displayed the inventiveness of a DaVinci and the imagination of a Tolkien in devising circumlocutions that have purged from my contributions to this volume (at some stylistic cost) all use of “he” as the traditional, generic, unisex reference to a human being—incomprehensible, I say, that this same coauthor should speak disparagingly of “shibboleths,” and feign inability to come up with an acceptable substitute for the clumsy “Do you not think?”
+
+(Try “Is that not so?” or “Would you not agree?”)
+
+
+
+(Response to aside: Invisible, my eye. I’ll bet you can spot the places where force or simplicity has been sacrificed to second-best circumlocution.
+
+As for distraction: To those of us who believe that “he” means, and has always meant, “he or she” when not referring to a male antecedent, the ritual shunning of it to avoid giving offense to gender-neutralizers is . . .
+
+well, distracting.)
+
+
+
+
+
+46. Avoid acronyms. Use the parties’ names.
+
+
+
+Acronyms are mainly for the convenience of the writer or speaker. Don’t burden your reader or listener with many of them, especially unfamiliar ones. FBI and IRS are OK, but not CPSC and FHLBB. You may be surprised how easy it is to avoid a brief of alphabet soup—and from the reader’s point of view (which is the only point of view that counts) it is worth the effort. If the Consumer Product Safety Commission plays a prominent role in your case, and no other agency has any part at all, call it
+
+“the Commission,” or even simply “the agency.” If the case concerns the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (117 Stat. 650), foil the drafters by refusing to call it
+
+“the PROTECT Act”; just “the Act” will do.
+
+
+
+“One day we may all be buried under an avalanche of acronyms.”
+
+—John Algeo
+
+
+
+
+
+The reason for avoiding acronyms is well exemplified in a fictional passage devised by Judge Daniel Friedman:
+
+
+
+[I]t is not unusual to read a sentence such as this in a brief: “The Port Association of Freight Forwarders (PAFF) entered into an Agreement Covering Loading Practices in the Inner Harbor (ACLPIH) with the Seattle Chapter of the Union of Warehousemen and Stevedores (SCUWS).” Two pages later, the following appears: “Under the ACLPIH, SCUWS was required to consult with PAFF before taking
+
+that action.” This problem could be avoided if, instead of using these initials, the writer employed shorthand terms, such as “Association,”
+
+“Agreement,” and “Union.” In place of the gibberish just quoted, the sentence would be fully comprehensible and succinct: “Under the Agreement, the Union was required to consult with the Association
+
+before taking that action.”43
+
+
+
+
+
+Refer to the parties by their names rather than their status in the litigation (plaintiff, respondent, etc.). There are good reasons for this. Sometimes, in reading briefs, judges will get confused about who is on the up-side and who on the down-side—and will have to flip back to the cover to see who
+
+“Petitioner” is. Moreover, the petitioner here may have been the defendant at trial, and the respondent on the first appeal. This can make the record on appeal confusing if status-names are used in the briefing and argument at each level. Everett Jones, however, is always and everywhere, at all stages of the litigation, Jones.
+
+
+
+Some mistakenly advise that you should try to personalize your client and depersonalize the opposing party by calling the former “Jones” and the latter “Defendant.” This is much too cute; rather than depersonalizing the defendant, it will annoy the court and ruin the story.
+
+
+
+Sometimes each side of the case has multiple parties, so it is impossible to use a single name. No problem. If they are all railroads, refer to them as
+
+“the railroads”; or if all debtors, call them “the debtors.” If they are a mishmash, pick the name of one of them and define that to include the entire group. For example, “The petitioners (collectively, ‘Exxon’) claimed below that . . . .”
+
+
+
+Here, as everywhere, clarity governs all. It sometimes makes sense to use terms like “general contractor,” “owner,” and “subcontractor” if that will identify the cast of characters in a way that makes the story more comprehensible.
+
+
+
+
+
+47. Don’t overuse italics; don’t use bold type except in headings; don’t use underlining at all.
+
+
+
+Italicize to emphasize, but do it sparingly. Remember that when too much is emphasized, nothing is. Constant italicizing gives your brief the tone of an adolescent diary, which is not what you should be striving for.
+
+
+
+Whenever possible, replace your italics with the device that provides the usual means of emphasis in written English: word order. In phrasing sentences, try to put the punch word at the end. Instead of writing “She held a knife in her hand,” write “What she held in her hand was a knife.” The latter formulation gives equivalent prominence to the desired word but sounds less excited. But when the only means of making your thought clear is to italicize a word or phrase, do it.
+
+
+
+Some brief-writers ill-advisedly use boldface type within normal text.
+
+The result is visually repulsive. Reserve boldface for headings.
+
+
+
+As for underlining, it’s a crude throwback: that’s what writers used in typewriting—when italics weren’t possible. Nobody using a computer in the 21st century should be underlining text. To the extent that The Bluebook suggests otherwise, it should be revised.
+
+
+
+
+
+48. Describe and cite authorities with scrupulous accuracy.
+
+
+
+Persuasive briefing induces the court to draw favorable conclusions from accurate descriptions of your authorities. It never distorts cases to fit the facts. The impression you want to make on the court—that you’re knowledgeable and even expert—will be compromised by any misdescription that opposing counsel brings to the court’s attention. If a case is only close but not completely in point, say so. Then explain why the difference is insubstantial and should not affect the outcome.
+
+
+
+Make faithful and accurate use of the conventional introductory signals, as set forth in The Bluebook 44 or the ALWD Citation Manual45—one of which should always be on your desk. If another style manual is required in your state courts, use it. When you cite a case with no introductory signal, you’re affirming to the court that this case explicitly holds what you have just said. If it is an alternative holding, say so with the parenthetical
+
+“(alternative holding).” If the proposition you have propounded is not stated in the case but necessarily follows from its holding, introduce the case by See. When the case you cite is merely analogous authority for the proposition you have stated, introduce it with the signal Cf. Show a contrary holding with Contra, and a case from whose reasoning a contrary holding necessarily follows with But see. And so forth. Consult your citation guide.
+
+
+
+When even one of your citations fails to live up to your introductory signal, or is not parenthetically qualified when necessary, all the rest of your citations inevitably become suspect. Remember the evidentiary maxim, which pretty well describes the way people (including judges) generally react to intentional or even careless distortion: falsus in uno, falsus in omnibus. False in one respect, false in all.
+
+
+
+And put your citations in the form most convenient for the generalist judge. In referring to a governing text, cite the official code. Some briefs cite sections of the original enactment as contained in session laws (in the federal system, “Stat.” cites) rather than the sections as codified (e.g., the United States Code). For example, a brief may refer to “section 502 (a)(3) of ERISA” to identify a provision of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, Tit. I, 88 Stat. 829, even though that provision is now codified at 29 U.S.C. § 1132 (a)(3). It’s easy to understand why this practice arises, since before codification the only source for citation is the session law; all the early law-review articles and commentaries refer to “section __ of the Act,” and practitioners specializing in that field become accustomed to using that form of reference. But once codification has occurred, this practice can do nothing but confuse. Since proper citation form requires the Code section, we end up with a brief that refers to § 502 (a)(3), followed (at least the first time that designation is used) by a citation of § 1132 (a)(3). Worse, sometimes a brief that does this then adds an appendix using only the Code sections, leaving it to the reader to figure out which one is § 502. Once an act has been codified, refer to the Code sections; to do otherwise is to frustrate the whole purpose of codification. The judges may not be as familiar with the original act as you are, and they are accustomed to working from the Code. Make their job easier by using Code references consistently.
+
+
+
+Professionalism is largely a matter of thwarting Murphy’s Law: if something can go wrong, it will. Anyone who has ever written a book or article knows that errors can creep in with alarming ease. So you create safeguards that prevent things from going awry. Verify your quotations and citations as you enter them into a draft. Ensure that someone other than the researcher verifies them a second time. Ensure that others read the brief—
+
+not just those who collaborated in producing it. You yourself proofread it two more times than you think necessary. And KeyCite or Shepardize the citations once again before filing the brief—perhaps while creating the Table of Authorities.
+
+
+
+
+
+49. Cite authorities sparingly.
+
+
+
+You’re not writing a treatise, a law-review article, or a comprehensive Corpus Juris annotation. You are trying to persuade one court in one jurisdiction. And what you’re trying to persuade it of is not your (or your junior associate’s) skill and tenacity at legal research. You will win no points, therefore, for digging out and including in your brief every relevant case. On the contrary, the glut of authority will only be distracting. What counts is not how many authorities you cite, but how well you use them.
+
+
+
+As for governing authority, if the point you are making is relevant to your reasoning but is neither controversial nor likely to be controverted, a single citation (the more recent the better) will suffice. Anything more is just showing off to an unappreciative audience. But if the point is central to your case and likely to be contested, not only cite the case but concisely describe its facts and its holding. And follow that description by citing other governing cases (Accord Smith v. Jones, Roe v. Doe).
+
+
+
+“[T]he fact is that in his brief, the lawyer seems oppressed with the feeling that his reasoning must be the servant of his authorities, with the result that his argument often becomes heavy from forced subordination, when it might be lightened by using the cases merely to illustrate, like pictures in a book.”
+
+—Howard C. Westwood
+
+
+
+
+
+If there is no governing authority in point, your resort to persuasive authority may require more extensive citation to show that the rule you are urging has been accepted in other jurisdictions. (For example: “Every other
+
+jurisdiction that has confronted this question has reached the same conclusion. See Smith v. Jones, 972 P.2d 1294 (Cal. 1998); Roe v. Doe, 649
+
+N.E.2d 1391 (N.Y. 1995); Riley v. Silberman, 593 S.E.2d 930 (Va. 2003).”) If persuasive authority is overwhelmingly in your favor but not uniformly so, you may have to resort to a footnote showing all the courts in your favor, followed by a But see citation of the few courts that are opposed. And citing an ALR annotation on point will be helpful.
+
+
+
+Secondary authorities (treatises, law-review articles, case annotations) help confirm your analysis of trends in the law, general background (supporting, for example, your statement that before the statute at issue was adopted, the law was thus-and-so), and your view about what is the “best”
+
+rule with the most desirable policy consequences. It’s superfluous—and hence harmful—to cite a secondary authority for a proposition clearly established by governing authority.
+
+
+
+Don’t expect the court, or even the law clerks, to read your secondary authority; they will at most check to see that it supports the point you make.
+
+They will therefore be persuaded not by the reasoning of your secondary authority but only by the fact that its author agrees with you. And the force of the persuasion will vary directly with the prominence of the author. Thus, except as a convenient way to refer the court to a compendium of cases, it’s not much help to bring to the court’s attention the fact that a student law-review note is on your side. Use it only when you have nothing else.
+
+
+
+
+
+50. Quote authorities more sparingly still.
+
+
+
+We’ve said that it pays to quote directly from a case setting forth your major premise. But it doesn’t pay to string along quotation after quotation for the rest of the paragraph. A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true. After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words than in the stringing together of quotations from various cases. Such a cut-and-paste approach also produces an air of artificiality, even of lack of self-assurance. You want the court to develop confidence in your reasoning
+
+—not in your ability to gopher up supporting quotations. Say what you know to be the law, and support it by citing a case that holds precisely that.
+
+
+
+“Quotations from cases are effective only if used sparingly. Quoting at length from opinion after opinion is a lazy way of writing a brief, and the finished product is likely to be unconvincing. Long before the brief approaches its end, the reader has begun to skip over the quotations.”
+
+—Hon. Daniel M. Friedman
+
+
+
+
+
+Be especially loath to use a lengthy, indented quotation. It invites skipping. In fact, many block quotes have probably never been read by anyone. So never let your point be made only in the indented quotation.
+
+State the point, and then support it with the quotation (“As Chief Justice Marshall expressed it: . . .”). This is, to be sure, iteration (yet another reason to avoid block quotes). But iteration that simultaneously buttresses with authority is sometimes effective.
+
+
+
+If you can’t weave quotations deftly into the fabric of your prose—
+
+especially the block quotations—abjure them altogether and paraphrase instead. If you ever use a series of quotations, remember that you must supply connective tissue between them—words to take the reader smoothly from one quotation to the next. Back-to-back quotations with no connectives are verboten.
+
+
+
+
+
+51. Swear off substantive footnotes—or not.
+
+
+
+The Garner view: Put no substantive point in a footnote—none, at least, that you consider important to your argument. There are several reasons for this, but the best is that many judges don’t read footnotes. Some courts have even announced that they won’t consider any argument raised exclusively in a footnote.46 Ah, yes, you are accustomed to seeing lengthy footnotes in judicial opinions and in law-review articles. But the authors of judicial opinions don’t win or lose by keeping their audience’s attention. And law-review writers are generally most interested in demonstrating their scholarship. Whatever the value of substantive footnotes in those contexts
+
+—and many think they ought to be seriously curbed there as well—they have no place in a brief. If the point is not important enough to be in the text, it’s not important enough to be in the brief.
+
+
+
+You may recoil from the blackletter admonition here. But a year or two after deciding that you’ll never put a sentence in a footnote (reference notes containing only bibliographical material are okay), you’ll probably be surprised at how easy that resolution is to keep.
+
+
+
+A Scalia qualification: In my view, the preceding advice is too categorical. The Solicitor General of the United States, after all, is a highly skilled and experienced advocate, and the briefs of that office almost always contain substantive footnotes.
+
+
+
+It is assuredly true that nothing really important to the decision should be in a footnote. And it’s even true that, in most courts before which you are likely to appear, nothing of substance should be in a footnote. But in those
+
+courts with a relatively limited docket, accustomed to issuing detailed and exhaustive opinions, some relatively unimportant matters are worth discussing below the text. As Chief Judge Frank Easterbrook of the Seventh Circuit, himself a former Deputy Solicitor General, has told us in a letter: The SG’s style, at least when I was there, was to write two briefs: one for all the Justices as they prepared for oral argument, and another for the Justice assigned to write the opinion. The straightforward, punchy argument appeared in the text of the brief. The extra details were in the footnotes. The office also used footnotes to anticipate the other side’s weaker arguments and to address arguments that the other side never made—but that the Justices or their clerks might think up.
+
+
+
+It is bad to waste space in the text of a brief addressing arguments never made, but it is worse to know that a bright person might come up with an argument, have a ready answer, omit it from the brief, and then find from the opinion that the judge has thought up the argument but not the answer. Putting such information in footnotes makes it possible to file a cogent and streamlined brief, the sort of thing that will persuade on first reading, while keeping potentially helpful elaboration available for the judge to consult later.
+
+
+
+
+
+I know of no court that will categorically not consider substantive footnotes. The citations contained in my coauthor’s scary footnote pertain to the raising of fundamentally new claims or new arguments—for example, making a Due Process Clause argument in a footnote when all the rest of the brief relies on the Sixth Amendment. That shouldn’t be done anyway. But providing useful (though less than essential) support for an argument made in text is quite different. And more different still is a footnoted response to a weak argument made by the other side. These footnotes may not be read; but if read they will be considered.
+
+
+
+
+
+52. Consider putting citations in footnotes—or not.
+
+
+
+The Garner view: I’ve made it something of a cause célèbre to reform the way citations are interlarded in lawyers’ texts.47 Since 1992, I’ve recommended putting all bibliographic material (volume numbers and page numbers) in footnotes but avoiding putting any substantive text (complete sentences) there. Nothing should appear in a footnote that anyone should have to read—only what someone might consult for looking up a reference. 48 Under this system of subordinating citations, readers should never be asked to look down at footnotes—there’s nothing significant there because the important authorities have been named and discussed in the text (“Three years ago in Flom v. Baumgartner, this Court held that . . .”).
+
+
+
+Using this system, while describing in the text the major authorities you’re relying on, has several advantages: (1) visually, the important material on the page, the discussion of authorities through close reasoning, is most prominent instead of the least important information, namely, the volume and page numbers; (2) disjointed thoughts, which are rampant in briefs, are immediately exposed for what they are; (3) poor paragraphing gets exposed; (4) discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations; and (5) the prose more closely follows the practices of the most accomplished nonfiction writers of our day. Although this technique improves the prose, it concededly makes greater demands on the writer, who must maintain a tighter train of thought. Readers need no longer skip over long swaths of bibliographic characters in the middle of the page (a holdover of typewriting style). Meanwhile, those readers who are critically evaluating your cited authorities—your adversaries and judges—can still see what you’ve cited.
+
+
+
+Whether this system will gain widespread acceptance within the profession remains to be seen. Many judges and lawyers have adopted it,49
+
+and their numbers are increasing. We should measure progress in decades.
+
+It is with no small degree of sadness that I note my inability to persuade my coauthor to use this method for the improvement of judicial writing generally. One of his favorite sayings is that “whatever doesn’t help hurts,”
+
+and it’s inconceivable that 535 U.S. 274, 276, 122 S.Ct. 1414, 1416, 152
+
+L.Ed.2d 437, 439 helps anyone who’s trying to get through a paragraph.
+
+Meanwhile, his worries about “crabby judges” have rarely if ever been borne out among the many hundreds of lawyers who years ago adopted my recommendation and continue to follow it. Quite the opposite: they report that they routinely meet with positive outcomes—in part because they write more compellingly as a result of this technique.
+
+
+
+The Scalia view: Alas, I disapprove this novel suggestion. You cannot make your product more readable to the careful lawyer by putting the entire citation material (case name, court, date, volume, and page) in a footnote—
+
+because the careful lawyer wants to know, while reading along, what the authority is for what you say. So, far from enabling the reader’s eyes to run smoothly across a text uninterrupted by this ugly material, you would force the eyes to bounce repeatedly from text to footnote.
+
+
+
+My coauthor’s solution to this problem is to “weave” the name of the court and the case name (and the date?) into the text (“As the Supreme Court of the United States said in the 1959 case of Schwarz v. Schwarz,1 . .
+
+.”). I doubt that this can be done (without sounding silly) for all the citations that a brief contains. But if it can, it will surely place undue emphasis upon, and inflate the text with, details inessential to the reasoning. I will rarely want the court, name, and date of a case thrust in my face, so to speak, by inclusion in the narrative text as though it’s really important. Ordinarily, such information can better be conveyed, almost subliminally, in a running citation. Lawyers are used to skipping over these signals quickly and moving on to the next sentence. If in this respect legal-writing style differs from other writing style, it is only because lawyers must evaluate
+
+statements not on the basis of whether they make sense but on the basis of whether some governing authority said so.
+
+
+
+Of course, whatever the merits of this debate, the conclusive reason not to accept Garner’s novel suggestion is that it is novel. Judges are uncomfortable with change, and it is a sure thing that some crabby judges will dislike this one. You should no more try to convert the court to citation-free text at your client’s expense than you should try to convert it to colorful ties or casual-Friday attire at oral argument. Now if Garner wanted to make a really useful suggestion, he might suggest avoiding, wherever possible, the insertion of lengthy citations in the middle of a sentence. That is easy to achieve, and certain not to offend.
+
+
+
+
+
+53. Make the relevant text readily available to the court.
+
+
+
+A text worth discussing is a text worth reading. Make sure that the entirety of the text you are relying on (or that your adversary is mistakenly relying on) appears somewhere in your brief. This is an exception to our caution against block quotations. If the statutory or other material is lengthy, put it in an appendix to the brief. (Placing some or most of it in a Joint Appendix is not enough; judges are distracted and annoyed by having to flip back and forth between volumes for material that is central to the case.) By the entirety of the text we mean not only the dispositive provision but also other portions that you claim bear on interpretation of the dispositive provision. Whatever text forms part of your argument should be not merely cited but reproduced in your brief.
+
+
+
+And reproduce the text of the statute, ordinance, or regulation as it existed at the relevant time. If it has been amended since, that should be indicated in a citation. Sometimes earlier or later versions of the text are relevant to its interpretation. When that is so, reproduce the other versions
+
+—with the differences shown in italics or redlining.
+
+
+
+
+
+54. Don’t spoil your product with poor typography.
+
+
+
+When business consultants make a presentation to a prospective client, they come forward with a professionally produced, bound proposal. They understand that to get business they must persuade, and that good visuals help. The same is true for persuading judges. A brief that is in an ugly typeface, with crowded lines, will not invite careful perusal. In the days when briefs had to be printed, counsel (and the court) could rely on a knowledgeable printer to produce a readily legible product. Now that lawyers can produce their own briefs using desktop-publishing software, the filed product is often disastrous.
+
+
+
+“I have seen firms spend hundreds of thousands of dollars on technology only to make their briefs and other documents look like they were typed on a 1940 Underwood.
+
+Never use Courier.”
+
+—Mark P. Painter
+
+
+
+
+
+The Supreme Court of the United States has set forth printing requirements in its rule 33. If the court in which you’re filing has no such requirements, or significantly less rigorous ones, you should consider using the Supreme Court rules as a model. Better still, the United States Court of Appeals for the Seventh Circuit has posted on its website detailed, sage guidance for proper printing.
+
+
+
+If necessary, hire someone to do the job right.
+
+
+
+
+
+Oral Argument
+
+
+
+
+
+55. Appreciate the importance of oral argument, and know your
+
+objectives.
+
+56. Prepare yourself generally as a public speaker.
+
+57. Master the preferred pronunciations of English words, legal
+
+terms, and ...
+
+58. Master the use of the pause.
+
+59. Send up the skilled advocate most knowledgeable about the
+
+case.
+
+60. Avoid splitting the argument between cocounsel.
+
+61. Prepare assiduously.
+
+62. Learn the record.
+
+63. Learn the cases.
+
+64. Decide which parts of your brief you’ll cover.
+
+65. Be flexible.
+
+66. Be absolutely clear on the theory of your case.
+
+67. Be absolutely clear on the mandate you seek.
+
+68. Organize and index the materials you may need.
+
+69. Conduct moot courts.
+
+70. Watch some arguments.
+
+71. On the eve of argument, check your authorities.
+
+72. Arrive at court plenty early with everything you need.
+
+73. Make a good first impression. Dress appropriately and bear
+
+yourself with dignity.
+
+74. Seat only cocounsel at counsel table.
+
+75. Bear in mind that even when you’re not on your feet, you’re
+
+onstage and working.
+
+76. Approach the lectern unencumbered; adjust it to your height;
+
+stand erect ...
+
+77. Greet the court and, if necessary, introduce yourself.
+
+78. Have your opener down pat.
+
+79. If you’re the appellant, reserve rebuttal time.
+
+80. Decide whether it’s worth giving the facts and history of the
+
+case.
+
+81. If you’re the appellant, lead with your strength.
+
+82. If you’re the appellee, take account of what has preceded, clear
+
+the ...
+
+83. Avoid detailed discussion of precedents.
+
+84. Focus quickly on crucial text, and tell the court where to find it.
+
+85. Don’t beat a dead horse. Don’t let a dead horse beat you.
+
+86. Stop promptly when you’re out of time.
+
+87. When you have time left, but nothing else useful to say,
+
+conclude ...
+
+88. Take account of the special considerations applicable to rebuttal
+
+argument.
+
+89. Look the judges in the eye. Connect.
+
+90. Be conversational but not familiar.
+
+91. Use correct courtroom terminology.
+
+92. Never read an argument; never deliver it from memory except
+
+the opener and ...
+
+93. Treasure simplicity.
+
+94. Don’t chew your fingernails.
+
+95. Present your argument as truth, not as your opinion.
+
+96. Never speak over a judge.
+
+97. Never ask how much time you have left.
+
+98. Never (or almost never) put any other question to the court.
+
+99. Be cautious about humor.
+
+100. Don’t use visual aids unintelligently.
+
+101. Welcome questions.
+
+102. Listen carefully and, if necessary, ask for clarification.
+
+103. Never postpone an answer.
+
+104. If you don’t know, say so. And never give a categorical answer
+
+you’re ...
+
+105. Begin with a “yes” or a “no.”
+
+106. Never praise a question.
+
+107. Willingly answer hypotheticals.
+
+108. After answering, transition back into your argument—
+
+smoothly, which means ...
+
+109. Recognize friendly questions.
+
+110. Learn how to handle a difficult judge.
+
+111. Beware invited concessions.
+
+112. Advise the court of significant new authority.
+
+113. If you’re unhappy with the ruling, think about filing a motion
+
+for reconsideration.
+
+114. Learn from your mistakes.
+
+115. Plan on developing a reputation for excellence.
+
+
+
+Introduction
+
+
+
+
+
+55. Appreciate the importance of oral argument, and know your objectives.
+
+
+
+Many lawyers view oral argument as just a formality, especially in courts that make a practice of reading the briefs in advance. Sure, it gives counsel a chance to show off before the client. But as far as affecting the outcome is concerned, what can 20 minutes or half an hour of oral argument add to what the judge has already learned from reading a few hundred pages of briefs, underlining significant passages and annotating the margins?
+
+
+
+This skepticism has proved false in every study of judicial behavior we know. Does oral argument change a well-prepared judge’s mind? Rarely.
+
+What often happens, though, is that the judge is undecided at the time of oral argument (the case is a close one), and oral argument makes the difference. It makes the difference because it provides information and perspective that the briefs don’t and can’t contain.
+
+
+
+A brief is logical and sequential. If it contains five points, they will often be addressed in some logical order, not necessarily in the order of their importance. The amount of space devoted to each point, moreover, has more to do with its complexity than its strength. Someone who has read your brief, therefore—and especially someone who has read it some days ago—may have a distorted impression of your case. The reader may think that point #1, which it takes a third of your brief to explain, is the most significant aspect of your argument, whereas in fact point #3, which covers half as many pages, is really your trump card. Oral argument can put things in perspective: “Your Honors, we have four points to our brief, all of which we think merit your attention. But the heart of our argument is point #3, on issue preclusion, and I’ll turn to that now.”
+
+
+
+Oral argument also provides information that the brief can’t contain.
+
+Most obviously, it gives the appellee an opportunity to reply to responses and new points contained in the appellant’s reply brief. At least as important, it provides both sides the opportunity to answer questions that have arisen in the judges’ minds. The most obvious of these should have been anticipated and answered in the briefing, but repetition of the answer to a persistent doubter can be helpful. And the judges are bound to have in mind questions unanticipated by the briefs—either because the answer is too obvious or because the question is too subtle. Oral argument is the time to lay these judicial doubts to rest. And finally, the quality of oral argument can convey to the court that the brief already submitted is the product of a highly capable and trustworthy attorney, intimately familiar with the facts and the law of the case.
+
+
+
+In descending order of importance, your objectives in oral argument are these:
+
+1. To answer any questions and satisfy any doubts that have arisen in the judges’ minds.
+
+2. If you’re counsel for the appellee, to answer new and telling points raised in the appellant’s reply brief. Oral argument is your only chance.
+
+3. To call to the judges’ minds and reinforce the substantive points made in your brief.
+
+4. To demonstrate to the court, by the substance and manner of your presentation, that you are trustworthy, open, and forthright.
+
+5. To demonstrate to the court, by the substance and manner of your presentation, that you have thought long and hard about this case and are familiar with all its details.
+
+6. To demonstrate to the court, mostly by the manner of your presentation, that you are likable and not mean-spirited.
+
+
+
+
+
+Long-Term Preparation
+
+
+
+
+
+56. Prepare yourself generally as a public speaker.
+
+
+
+Everybody has a personal manner of speaking, and it’s a mistake to try to be what you’re not. So don’t try to emulate Perry Mason. Be yourself. But avoid the common mistakes in delivery that advocates make. You’ll find that avoiding some of them takes practice.
+
+
+
+Don’t speak fast. Machine-gun presentations, even when perfectly well understood, are ineffective. Most people can process information only at a moderate rate. When ideas—even the best ideas—come tumbling forth too fast, they’re apt to induce either headache or inattention. (There is probably such a thing as speaking too slowly, but few have ever observed it.) Working on a slower presentation is likely to be difficult but worth the trouble.
+
+
+
+“Many speakers soon after starting reach a monotone pitched about three notes above the ordinary talking key and hold the pitch without variation until the end of their address. This has the most soporific effect upon the court and the jury and makes them wish for a bed where they might attain to a state of unconsciousness.”
+
+—Henry S. Wilcox
+
+
+
+
+
+Adjust the volume of your voice to the surroundings and the sound-enhancement equipment available. The decibel level of your delivery should be conversational, not oratorical, throughout. The judges should be able to hear you with ease and without discomfort. If you’re speaking so softly that they miss snippets of your presentation, or so loudly that listening is painful, they’ll rarely ask you to adjust your volume; but they’ll
+
+often tune you out. Crescendos and fortissimos of delivery may be effective in a declamatory oration, when appeal to emotion and incitement to action are the object. They’re decidedly ineffective in the courtroom, where counsel’s implicit message to the court is “Let us reason together.”
+
+
+
+Lower the pitch of your voice. A high and shrill tone does not inspire confidence. You must speak, of course, with the voice you’ve been given, but voices can be improved over time. Expand your lower register through practice. This doesn’t mean that you should sound like a radio announcer.
+
+But realize that your natural tone tends to be elevated by excitement, or by the desire to drive home a point.
+
+
+
+Speak distinctly. Oral argument is not the place to drop consonants and slur your words. Practice enunciating each word clearly and separating it from the words before and after. Most judges, if they have not understood a phrase or sentence of your presentation, will not ask you to repeat it—and your point will have been lost.
+
+
+
+Purge your speech of “ums” and “ers.” Such “filler” sounds do nothing but distract. Far better, if necessary, simply to pause between words. But avoiding “ums” and “ers” can’t be achieved by practicing it the night before argument. Like clear enunciation and modulation of volume and pitch, it’s something you must put into practice in your daily speech if you aspire to be an oral advocate. One way to sensitize yourself to “ums” and “ers” is to tape-record or videotape a practice presentation. That exercise in self-observation can be uncomfortable, but it can induce dramatic improvement.
+
+
+
+
+
+57. Master the preferred pronunciations of English words, legal terms, and proper names.
+
+
+
+Like Eliza Doolittle in My Fair Lady, you’ll be thought either sophisticated or simple-minded, knowledgeable or ignorant, not just by what you say but also by how you say it. Besides avoiding dialect ( ain’t), informalisms ( yeah), and common illiteracies (misusing infer for imply, saying “nuculus” for nucleus, or pronouncing athlete and realtor as though they were three-syllable words), ensure that your pronunciation of proper names, legal terminology, and even everyday English words is orthodox.
+
+The lawyer who refers to Chief Justice Taney as /tay-nee/ instead of the correct /taw-nee/, who mentions the rule of lenity as if it were /leen-i-tee/, or who invokes the maxim /no-site-tur eh soh-keys/ ( noscitur a sociis is pronounced /nos-i-ter ay [ or ah] soh-shee-is/) will never be mistaken for an expert.
+
+
+
+So how does one learn “preferred” pronunciations? And by whom are they preferred? Fair questions both.
+
+
+
+Many words have more than one pronunciation. Sometimes the variants are equally acceptable (for example, aunt can be either /ant/ or /ahnt/). But more often (in often, the -t- is preferably silent) one pronunciation typifies educated speech and the other uneducated speech. Naturally, being a professional with an advanced degree—unless your persona is that of a folksy, down-home lawyer—you’ll do better to stay within the mainstream of standard pronunciation. Hence “preferred” means “preferred by well-educated people.”
+
+
+
+When in doubt, consult a good, current desktop dictionary. Better yet, consult a resource such as Charles Harrington Elster’s Big Book of Beastly Mispronunciations (2d ed. 2006). There you’ll find excellent, engaging essays on the best ways to say all the most troublesome words in the language. Be prepared to learn that you’ve been mispronouncing comptroller, coupon, err, flaccid, heinous, and schism all these years. Elster has been the pronunciation editor of Black’s Law Dictionary since the seventh edition of 1999, so you can find authoritative, easy-to-follow pronunciations of distinctively legal terms in the current editions of that work.
+
+
+
+“Of pronunciations, the incorrect are the result either of illiterate association or of imperfect education. In conversation these may turn the finest of reasoning into ridicule, which may deprive the speaker of the respect and attention of his audience.”
+
+—Frank H. Vizetelly
+
+
+
+
+
+Pronunciation can be a tricky matter. For one thing, there are regional variations. Voir dire is pronounced /vwahr deer/ almost universally, but it’s
+
+/vohr dyer/ in Texas and surrounding states. A Texas lawyer would be foolish to appear in a Texas courtroom and pronounce the phrase like some newly arrived outlander. And what’s a visiting lawyer who’s been admitted in Texas pro hac vice (/proh hahk vee-chay/ or /proh hak veye-see/) to do?
+
+Probably the best course, if you’re linguistically flexible enough, is to use the local pronunciation in that proceeding, offensive as it may be to your ear. Otherwise, you’ll reinforce the unhelpful fact that you’re an out-of-towner.
+
+
+
+And what’s a Texas lawyer to do in a proceeding elsewhere? Again, if you’re nimble, you’ll probably adopt the standard pronunciation /vwahr deer/. Otherwise, you may come off as a rube. But if you have a strong regional accent for all your words, you might sound funny pronouncing only /vwahr deer/ like Webster. Use your judgment.
+
+
+
+
+
+58. Master the use of the pause.
+
+
+
+Perhaps the rhetorical device most undervalued and indeed ignored by lawyers is the pause. A strategic pause after an appropriate lead-in can add emphasis to whatever phrase or sentence immediately follows. It can also highlight the divisions of your argument. Instead of following the last sentence of your previous point with an immediate “I’d like to turn now to .
+
+. . ,” insert a brief pause between the two. It will prepare your listeners for the transition that’s to follow. It will also clarify the organization of your thoughts.
+
+
+
+For a finer appreciation of this point, study the cadence of effective speakers—whether they’re newscasters, professional commentators, or fellow lawyers. The good ones don’t speak in a nonstop rat-a-tat-tat.
+
+
+
+One specialized use of the pause is worth practicing: learn to stop talking whenever someone interrupts you. You will have to do this when a judge interrupts, and it is not a skill that comes naturally.
+
+
+
+Preliminary Decision: Who Will Argue?
+
+
+
+
+
+59. Send up the skilled advocate most knowledgeable about the case.
+
+
+
+A client will sometimes press to have a “name” partner argue the case.
+
+Resist that pressure. Explain that the client best stands to win if the lawyer most familiar with the case (and, of course, skilled in oral advocacy) does the job. Every judge is familiar with the embarrassing and distracting spectacle of a senior lawyer at the rostrum butchering an appeal while a capable junior sitting at counsel table, more knowledgeable on the facts and law of the case, writhes in discomfort. The client may think the senior partner is doing a fine job, but the court knows better. And though the firm may please its client for the day by having its Big Name appear, over the long run that practice will cause the firm to lose more cases . . . and clients.
+
+
+
+“The attorney general of a state, the senior partner of a law firm, the head of a department, despite having done no work on the case in the lower court and being too busy to participate in the drafting of the brief, nonetheless ‘designates’ himself to argue the case. This advocate apparently thinks that an outward air of confidence and experience in a number of oral arguments are substitutes for a thorough understanding of this particular case.”
+
+—Hon. William H. Rehnquist
+
+
+
+
+
+In selecting counsel to argue an appeal, bear in mind that appellate advocacy and trial advocacy are different specialties. Some lawyers are good at both, just as some athletes excel in several sports. But skill in the one does not ensure skill in the other. So the lawyer who tried the case and who is, initially at least, the most knowledgeable on the facts, the proceedings below, and (perhaps) the law is not necessarily the best choice
+
+to argue. The same is true of the corporate counsel or narrow expert, who may be intimately familiar with the business that’s the subject of the litigation but may lack the breadth of legal knowledge required to appreciate and explain the consequences of the client’s position as it affects other fields.
+
+
+
+
+
+60. Avoid splitting the argument between cocounsel.
+
+
+
+When there are two counsel in the case, representing separate plaintiffs or defendants presenting the same issues, each one often wishes to argue.
+
+Avoid compromising by splitting the argument (if, by chance, the court would even allow it). Generally speaking, dividing the limited argument time between cocounsel produces two mediocre arguments instead of one excellent one. If counsel divide the argument by subject matter, the court is prevented from pursuing at greater length (and counsel from addressing at greater length) that aspect of the case in which the court has the greater interest. And if they don’t divide it by subject matter, there will likely be two superficial treatments instead of one in-depth presentation. You disserve your client if you don’t let the more capable and experienced lawyer do the whole job. If you cannot agree on which of the two of you that is, flip a coin. For good reason, most courts permit time-splitting only in rare cases.
+
+
+
+The rare case in which time-splitting is appropriate arises when each of the two plaintiffs or defendants has a claim or defense that the other one does not share. Neither counsel would have any interest in, or knowledge about, the other’s distinctive point. (When only one of them has a distinctive claim or defense, let that one make the whole argument.) The time should not be divided evenly; one or the other counsel should be allotted a small portion of the total time fairly devoted to that single point.
+
+
+
+When the United States (or a state in a state-court case) has filed an amicus brief, it will sometimes offer to present oral argument if counsel for the side it is supporting will yield a portion of the argument time for that purpose. This is almost always a deal worth taking. While it shortens
+
+counsel’s presentation time, it brings forcefully to the court’s attention the interest of the government in the matter and adds to the case argument by unusually knowledgeable and experienced counsel.
+
+
+
+When there is divided argument for the appellant, it is ordinarily the first speaker who reserves time for rebuttal. Remember to do so.
+
+
+
+Months and Weeks Before Argument
+
+
+
+
+
+61. Prepare assiduously.
+
+
+
+The most difficult element of oral argument is the unexpected—the argument for your adversary or the question from the court that has not been anticipated. It’s the supreme talent of the expert oral advocate (a talent that few possess) to be able to respond immediately and accurately to these surprises. But it is a basic skill of the competent oral advocate—and a skill we can all master—to ensure to the maximum extent possible that surprises don’t occur.
+
+
+
+This means thinking a lot about the case, turning it over in your mind, looking at it from various perspectives, racking your brain not only for the flaws in your adversary’s case but also for the weaknesses of your own. It means preparing a defense for each of those weaknesses, even if it can be no more than an acknowledgment of its existence and the assertion that it’s outweighed by other considerations. It means preparing for hundreds of different questions even though you may be asked only 20.
+
+
+
+Develop the habit of making notes for argument while you’re writing your briefs. Don’t just hope you’ll remember these thoughts: write them down and save them for the time when you’ll be preparing for argument weeks or months in the future.
+
+
+
+
+
+62. Learn the record.
+
+
+
+An appeal is based on the record made in the lower court (or before an agency), and it’s unprofessional to bring to the court’s attention facts that are not found there. You will have done yourself harm rather than good if you stray beyond the record, only to be corrected (and implicitly chided) by opposing counsel. But the rule has an exception: if the court asks you a question relating to a fact not in the record, you should answer if the fact does not harm your case. Preface your response with, “It’s not contained in the record, Your Honor, but my understanding is that . . . .” The court can stop you if it wants you to go no further.
+
+
+
+As for facts within the record—including all the procedural doings below
+
+—your knowledge should be utterly complete and meticulously organized.
+
+Appellate judges rely on counsel for unique facts in the record much more than they do for the universally applicable (and hence usually familiar) points of law. Sorting out a procedural mess by pointing in the record to a particular clarifying action of the district court, or resolving an evidentiary dispute by citing the page in the record where the witness said precisely what your case requires—these responses can resolve the question conclusively, allowing the court (and you) to go on immediately to other aspects of the case. Of course, the most significant of these factual matters should have been addressed in your brief. But if the court thinks another fact pertinent—or is even just curious about another fact (“By the way, counsel, what was . . . ?”)—only your mastery of the record will enable you to say what that fact is (or to say confidently that the fact is not known).
+
+You thus avoid wasting your argument time on speculation about the issue, and you sharpen the court’s image of you as someone who really knows what this case is about.
+
+
+
+“As familiarity with the record increases, its pages become old friends, checking out references becomes easier and quicker, and the feeling of confidence, of a strong grip on the case, grows immeasurably.”
+
+—F. Trowbridge Vom Baur
+
+
+
+
+
+Once again, a senior partner who is unfamiliar with the record and has no time to remedy that deficiency would be wise to let the junior partner who tried the case argue the appeal.
+
+
+
+
+
+63. Learn the cases.
+
+
+
+Presumably, your brief or reply brief will have distinguished your opponent’s principal cases—and will have responded to your opponent’s distinguishing of your own. Not only may the court wish to explore these disagreements, but it may have its own views of how and why the major cases cited or discussed are or are not germane. You must be able to enter these discussions with full and secure knowledge of the cases—their facts, their holdings, and their significant relevant dicta. Don’t try to acquire such intimate knowledge of all the cited cases—just the principal ones, which would include all those actually discussed in either side’s briefs. For the rest, you should have an alphabetized index showing their holdings, should the court inquire. It may be forgiven if you’re unfamiliar with a new case injected into the controversy by the court itself or with a marginally relevant case cited in passing by one of the briefs. But it’s inexcusable not to be armed to the teeth with regard to the cases that are central to the dispute.
+
+
+
+The best way to learn the cases is to brief them in writing, just as you did in law school. What were the facts? What was the question decided? What was the holding? And what was the reasoning? Summarize these points in your own words: that is how you come to know cases—really know them.
+
+Then you can discuss them knowledgeably.
+
+
+
+
+
+64. Decide which parts of your brief you’ll cover.
+
+
+
+Sometimes the time for your oral argument will be so limited that you can’t do justice to all the points in your brief. When that is so, you shouldn’t try to cover everything. Giving a lick and a promise to each point would just leave the court with the impression that your whole case is superficial and insubstantial. Instead, address your most important arguments in some depth. Tell the court at the outset that you’ll be limiting your presentation in this fashion, though you are by no means abandoning your other points, for which you rest on your brief.
+
+
+
+
+
+65. Be flexible.
+
+
+
+Flexibility is the catchword for oral argument. Don’t let the name “oral argument” deceive you. The opportunity to “argue” your case suggests that you will be able to make the points that you would like, in the order that you would prefer, and without interruption. If that is your view of the exercise, you will fare badly. In most courts, the modern oral argument would be more accurately described as a discussion led by the judges.
+
+
+
+“Some judges shoot the first question before the advocate has cleared his throat. Others hold their fire until the argument is well under way. The lawyer must be prepared to be told that the panel needs no oral recitation of the facts, to have the argument taken over completely by questions from the bench, and to find that the delivery of an entire argument is without a single question.”
+
+—Hon. Murray I. Gurfein
+
+
+
+
+
+Since you never know how assertively a judge or a panel of judges may intervene during your presentation, you must be prepared (1) to speak with almost no interruption from the bench, (2) to speak with a moderate number of questions, and (3) to speak with an almost uninterrupted stream of questions.
+
+
+
+Approach the bench not with a set presentation in mind—not even a fixed outline of points in the order in which you wish to make them. Rather, stand up with a list of five to seven points that you want to make, and with a sure plan of how you intend to present each of them. But the order in which you present them, the amount of time you devote to each, and even whether
+
+you reach all the points or just the first several, will depend on what the judges want to discuss and at what length. It’s up to you to turn the discussion, when you can, to each of the principal points you have in mind.
+
+
+
+When a question from the court takes you forward to a subject you had planned to address later, you can hardly say, “Your Honor, I will come to that in a few minutes.” You jump ahead in your presentation to address that point at once and adjust the remainder accordingly. You must be adaptable enough—and the outline of your various presentations must be clear enough—to accomplish this.
+
+
+
+
+
+66. Be absolutely clear on the theory of your case.
+
+
+
+Judges are concerned not only with the outcome of your case but also with the outcome of the many future cases that will be governed by the rule you are urging the court to adopt. Indeed, in appellate courts—especially those with discretionary jurisdiction—the effect on future cases is their main focus. So it’s an essential part of your argument to show that the rule of law you propose produces fair and reasonable results—not just in the present case, but in all cases to which it applies. If you fail to persuade the court of this, you will lose.
+
+
+
+“[T]here is in every case a cardinal point around which lesser points revolve like planets around the sun, or even as dead moons around a planet; a central fortress which if strongly held will make the loss of all the outworks immaterial.”
+
+—John W. Davis
+
+
+
+
+
+It is this interest of the court in the overall consequences of your proposed rule that produces the bane of the ill-prepared or dull-witted oral advocate: the hypothetical question. You should expect to receive a number of these. It is impossible to predict their precise content, and only absolute clarity about the theory of your case will enable you to provide an on-the-spot answer.
+
+
+
+A good moot court before argument should have anticipated the most likely hypotheticals. Even if you’ve never considered them before, however, the answer should be obvious if you truly know the theory of your case. Don’t run away from the logical consequences of your theory. If, in a
+
+particular hypothetical situation, your theory produces a result that is seemingly unfair or unreasonable, explain why in reality that is not so; or, if that will not work, why the situation is so rare and freakish that it should not drive the governing rule; or, if all else fails, how an exception to the rule can be crafted for that highly unusual situation.
+
+
+
+
+
+67. Be absolutely clear on the mandate you seek.
+
+
+
+The judges we’ve consulted say that it’s lamentably common for lawyers not to know how to fill in this blank: “The Court therefore orders that _________________________.” To supply what’s missing, you must think through exactly what you’re asking the court to do. Put it in the prayer of your brief.
+
+
+
+Just as good lawyers begin their pleadings by consulting the pattern jury instructions so that they’ll know what ultimately needs to be proved, they also begin preparing for a motion or appeal by crafting the order that will follow. If they want a temporary restraining order against a disaffected former employee, they don’t just ask for an order “restraining Hef Helfenbein from disturbing company operations.” Instead, they fashion a highly particularized order that’s easier to enforce and hence more likely to be adopted: “Hef Helfenbein is restrained from (1) coming within 200 feet of the Goodyear plant; (2) telephoning any employee of Goodyear while that employee is on the job; (3) e-mailing any employee of Goodyear at a work e-mail address; (4) contacting any Goodyear supplier with whom he formerly had contact or knew about while he was a Goodyear employee; and (5) taking any other action designed to hamper or obstruct the company’s operations.”
+
+
+
+If you think things through that thoroughly, you’ll figure out a way to defend each of the measures you’re requesting.
+
+
+
+
+
+68. Organize and index the materials you may need.
+
+
+
+Just like dead time on the radio, dead time in oral argument is a disaster.
+
+Fumbling through papers during an embarrassing silence not only wastes your argument time; it makes you look like an incompetent. All the materials you are likely to need—not just to support your presentation but to respond to arguments by the other side or questions from the court—
+
+should be methodically indexed and tabbed for ready access. This includes at least the critical testimony below, the record of proceedings below, the relevant pages of the important cases you or your opponent relies on, and the sections of statutes, portions of legislative history, and regulations you or your opponent relies on.
+
+
+
+“I speak from the fullness of my heart when I say that I have seen more trouble in Court over disorderly papers than from any other cause. So I decline to treat as a triviality beneath counsel’s notice this matter of the tidiness and accessibility of the documents in the case.”
+
+—Rt. Hon. Lord Macmillan
+
+
+
+
+
+69. Conduct moot courts.
+
+
+
+No preparation for oral argument is as valuable as a moot court in which you’re interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing to your attention issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.
+
+
+
+If possible, assemble a panel of three inquisitors—and a diverse panel, not a claque. For example, if you’re representing an environmental organization, don’t put environmentalists on the panel. If you’re representing an insurance company, avoid insurance-defense lawyers. In other words, try to find panelists who are unlikely to be sympathetic to your positions. Encourage them in advance to oppose your positions and to develop good hypotheticals. If you can find such accommodating friends and associates, have them read the briefs beforehand; at least be sure that they are well familiar with the issues.
+
+
+
+Doing a moot court properly means staging it as though it’s the real thing. Follow court decorum precisely, and if possible use a law-school or law-firm courtroom. Don’t fall out of character and talk to the panelists as though they’re not judges. Have a timer—though if you’re preparing for only a ten-minute argument you would be well advised to let the moot court go on much longer. Indeed, it may always be desirable to go through the process twice—the first time lasting until the panel runs out of questions, and the second with the court’s time limits imposed.
+
+
+
+Finally, if at all possible, videotape the proceedings. Nothing can so convincingly persuade you of your mistakes as watching them.
+
+
+
+
+
+70. Watch some arguments.
+
+
+
+Professional speakers typically like to get an advance look at the room where they’ll be speaking. They want to become familiar with its general dimensions, sample its acoustics, and generally get to feel comfortable in the space. The same goes for lawyers, who are professional speakers in courtrooms.
+
+
+
+Make it a rule to watch proceedings in the courtroom where you’ll be speaking. This means arriving for out-of-town hearings a day early.
+
+
+
+“If you have to appear in a Tribunal or Court—in any capacity—familiarize yourself as best you can with its style, procedures, and atmosphere. Take time to sit in on someone else’s troubles before your own are reached. And if in doubt about the ways and customs of the court or the idiosyncrasies of the Bench—ask the usher or the clerk. The more humble the official and the more distinguished the questioner, the more flattered he is likely to be.”
+
+—Greville Janner
+
+
+
+
+
+Such “advancing” of your argument not only makes the room familiar. It also gives you a sense of the tribunal and its culture. It enables you to learn useful information by chatting with the clerk of court, the court reporter, or the bailiff. And it develops a feeling of ease and familiarity with the court’s ways. If you happen to see the judge chastise counsel for sitting with an arm draped across the back of a bench—and some judges do this—you’ll be glad you came and watched.
+
+
+
+
+
+71. On the eve of argument, check your authorities.
+
+
+
+How embarrassing to learn from the court that one of your leading cases has been reversed on appeal or overruled! That should never happen.
+
+
+
+A day or two before a scheduled oral argument, update your research. (Or have a junior colleague or trusted, well-trained paralegal do it.) See whether the courts have handed down any new decisions bearing on your case.
+
+Ensure that no pivotal cases have been overturned. Check also the principal authorities on which your adversary has relied. Use the most up-to-date, efficient research tools at your disposal. You must be as current on the relevant law as anyone else in the courtroom.
+
+
+
+“One of the most interesting cases I ever saw argued was a U.S. Sixth Circuit case in which both attorneys were arguing about the application of a case that had been overturned. When Judge Wellford finally asked one of the attorneys (who happened to be representing himself) whether he knew that the case was no longer good law, he responded (with great composure): ‘No, Your Honor, but I would point out that opposing counsel didn’t know it either.’”
+
+—Ronald J. Rychlak
+
+
+
+
+
+Before You Speak
+
+
+
+
+
+72. Arrive at court plenty early with everything you need.
+
+
+
+The proper frame of mind for making an oral argument is calm concentration. A last-minute, frenetic rush to the courthouse isn’t conducive to this attitude. You’ll have enough cause for nervousness without adding to it concern about arriving late. So leave with plenty of time to spare. In fact, if you’re arguing the second case that day, be there for the first. Even if you’ve seen this particular panel in action before, it will help to get a feel for how they’re functioning that day.
+
+
+
+If you make it possible for something to go wrong, it will. So exclude the possibility. Make allowance for traffic delays and for misdirected luggage; learn in advance whether the courtroom requires an extension cord for your slide projector or an easel for your sketch of the accident scene. Know what you need, and have it at the courthouse well before you go on.
+
+
+
+
+
+73. Make a good first impression. Dress appropriately and bear yourself with dignity.
+
+
+
+Before you utter a word, you will convey to the court that you consider (or do not consider) this a serious occasion and that you entertain (or do not entertain) respect for the dignity of the tribunal. Consider your attire: Shakespeare wrote that “Apparel oft proclaims the man.” If it does not do that, it at least proclaims the man’s (or woman’s) attitude toward the occasion. Don’t show up in a sport jacket. Even if you’re a man with long hair in a ponytail (and unless it’s part of your special cultural heritage, we don’t recommend this coiffure if advocacy before elderly judges is your day job), wear a dark suit (dark blue, dark gray, or black—not Tyrolean green or chocolate brown). The same for women—a dark, conservative suit. Wear a white shirt and a dark-red or blue tie. Nothing loud. Straighten your tie, comb your hair, and throw out your gum before you enter the courtroom.
+
+
+
+“You will not be stopped from arguing if you wear a race-track suit or sport a rainbow necktie. You will just create a first impression that you have strayed in at the wrong bar.”
+
+—Hon. Robert H. Jackson
+
+
+
+
+
+When you’re waiting for your case to be heard, avoid reading newspapers or other materials not directly related to your case.
+
+
+
+When your case is called, approach the counsel table in a brisk, businesslike manner—this is no time to joke or horse around with
+
+cocounsel. Sit erect, eyes fixed on the court, with the closest you can manage to an expression of sober anticipation.
+
+
+
+
+
+74. Seat only cocounsel at counsel table.
+
+
+
+The client will sometimes ask to attend oral argument—a request that today can hardly be denied. But don’t seat the client beside you at counsel table. Clients have a tendency to whisper suggestions in your ear, or to display approval or disapproval of the proceedings by their expressions or mannerisms. Even if this doesn’t distract you, it will distract the court.
+
+Seating the client in the audience is perfectly acceptable.
+
+
+
+It is helpful to have cocounsel (perhaps a junior colleague) with you at counsel table. When you rise from your seat next to the lectern to speak, cocounsel slips into your chair so as to be able to pass you any materials needed during the argument. Tell cocounsel never to pass you a note while you are on your feet, except in an emergency—for example, if you have advised the court incorrectly about the contents of the record.
+
+
+
+
+
+75. Bear in mind that even when you’re not on your feet, you’re onstage and working.
+
+
+
+There is no rest time in an oral argument, for any of the counsel. When you are not speaking, pay close attention to the argument of opposing counsel so that you can respond to any new points or new emphases. Listen to the questions the court asks, and consider how you would answer (you may have to). Be careful, however, not to display reaction to opposing counsel’s argument, as by shaking your head, rolling your eyes, smiling derisively, or otherwise registering disagreement. Maintain a dignified and respectful countenance, and calmly take notes. Similarly, when the court asks opposing counsel a question, don’t display your answer by nodding or shaking your head. Laugh only when the court laughs (and, for that matter, weep when it weeps).
+
+
+
+
+
+76. Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court.
+
+
+
+Approach the lectern in a brisk but unhurried manner. Don’t come laden with books and papers: Lengthy materials that you need for quotation in argument, or for response to questions, should be ready at hand—perhaps on a nearby table—but should not be toted to the lectern.
+
+
+
+We recommend that you approach the lectern with a single manila folder with no papers inside. Instead, write your bare-bones notes inside the folder itself, perhaps with the most telling record references listed. If you’re overcome by brain-freeze, a glance at your notes should jog your mind.
+
+And since you have no loose papers inside, there’ll be no risk of dropping papers onto the floor. The manila folder has the added advantage of closing up, so that others won’t be privy to your notes as they lie on the counsel table.
+
+
+
+“There is something psychologically persuasive about a man who comes before an appellate court unburdened by a lot of legal paraphernalia.”
+
+—H. Graham Morison
+
+
+
+
+
+If you’ve taken the trouble to view the courtroom beforehand, you’ll know whether the lectern is adjustable, and if so how. It is important that you fix it, if possible, to a comfortable height, not only because that makes it easier for you to consult your notes while you speak, but also because that
+
+may make it easier for the court to hear: the height of the microphone is often adjusted with the lectern.
+
+
+
+Stand erect. Pause briefly before you open your mouth. Make eye contact with the judge or judges. Better to skip the smile, which may come across as nervous or condescending.
+
+
+
+Substance of Argument
+
+
+
+
+
+77. Greet the court and, if necessary, introduce yourself.
+
+
+
+Make eye contact with the presiding judge and begin your presentation with whatever formulary introduction is customary in the court before which you’re appearing. Typically it is “May it please the court.” In the Supreme Court of the United States, it is “Mr. Chief Justice, and may it please the Court.”
+
+
+
+If the court has called you forward by name, proceed at once to your argument. If the court has merely said something like “Counsel for the appellant may proceed,” begin by introducing yourself: “I am John Smith, representing the appellant, Paul Jones.” Don’t waste time describing your client unless you have reason to believe that the court has not read the briefs. In the latter event, state briefly the business or office of your natural-person client if that is relevant to the case (“Mr. Jones is the sheriff of Maricopa County, New Mexico”) or the state of incorporation and business of your corporate client (“Ajax is a Delaware corporation that manufactures paper clips”).
+
+
+
+“It is a pleasingly brief and ritualistic touch to open with ‘May it please the Court’; it is a crashingly boring waste of time to describe sycophantically how happy counsel is to be there.”
+
+—Edward L. Lascher
+
+
+
+
+
+78. Have your opener down pat.
+
+
+
+Anyone who has done public speaking knows that the hardest part is the opener. Your adrenaline is pumping. You’re trying to keep nervousness out of your voice and manner, to establish eye contact with your audience, and to project a steady, even tone. This is no time to worry about what you’re going to say. For this part of your presentation, commit your words to memory (though try not to deliver them as though by rote). Even for the opener, however, don’t read from a prepared text.
+
+
+
+Your opening should usually consist of, or at least contain, a brief outline of the subjects you intend to address: “I hope to discuss this morning first why this court has jurisdiction, then why the trial court’s finding of negligence was unsupported, and finally why the damages awarded are plainly excessive.” You should be under no illusion that you will actually get to reach all these subjects—that ultimately depends on the court (which is why you should put your strongest point first). But setting forth at the outset the full range of what you hope to address may induce the judges to make their questions more concise.
+
+
+
+
+
+79. If you’re the appellant, reserve rebuttal time.
+
+
+
+It’s never wise to waive rebuttal in advance—but it won’t be given to you if you’ve used up all your time in your first presentation. In many courts, it’s customary for counsel to request rebuttal time at the outset of an argument, right after any personal introduction. In other courts, rebuttal time must be arranged with the courtroom deputy before argument. If you don’t request or arrange it, you won’t get it.
+
+
+
+“Never waive rebuttal in advance, which means always be sure you have enough time left to rebut; otherwise, the appellee’s lawyer may try to pull the wool over the judge’s eyes knowing that you will not be able to correct his misstatements. But if, having reserved time for rebuttal, you find that you have nothing to say, perhaps because it is obvious that your opponent has said nothing to move the judges, then waive rebuttal rather than wasting the judges’ time.”
+
+—Hon. Richard A. Posner
+
+
+
+
+
+If the court has warning lights, find out from the clerk in advance whether they’ll be set to take account of your reserved time. If not, you’ll have to keep track of it yourself; if you use up all your time, your request for rebuttal will be dead.
+
+
+
+
+
+80. Decide whether it’s worth giving the facts and history of the case.
+
+
+
+You have a limited time for argument, and don’t want to waste a minute of it. If you’re the appellant before a court that you believe may not have pored over your brief, or a court that assigns the opinion before argument (so that two of the three-judge panel may not have prepared as intensively as you would like), it may be worth your time to state the facts and history of the case, including, of course, the precise holding of the court below. In argument before a federal court of appeals, that would ordinarily be a waste of time: assume a basic knowledge of the facts and history, and proceed directly to your points of law. In your legal argument, of course, you can and should mention the specific facts that militate in favor of the outcome you’re advocating.
+
+
+
+If you’re the appellee, and the appellant has already gone into the facts and history, never repeat them. Address only those points you wish to contest rather than burying them in a rehash of the whole story. This advice differs from what we recommend for the statement of facts in appellees’
+
+briefs (see § 36) because (1) oral-argument time is more precious than briefing space, and (2) if you have followed our advice, the court will have had the opportunity to read your “take” on the facts in your brief. If the appellant has fully stated the facts in oral argument, you might say: “Our description of the salient facts is of course quite different from what you have heard today from appellant. But for that I will rest on our brief, except for making the following corrections to appellant’s statement….” If the appellant has not set forth the facts and history, you can usually omit them as well; any elements central to your case can be brought forth in your substantive argument.
+
+
+
+
+
+81. If you’re the appellant, lead with your strength.
+
+
+
+Whereas in brief-writing it’s often necessary to give logically prior points the first place, at oral argument you need not do so. Put your strongest point of law first. Never mind the logical order. By beginning with your best argument, you put your case in perspective: “Your Honors, we have four points in our brief, and we think they all merit your attention. But the utterly decisive point, and the one I would like to address first, is this: . . . .”
+
+
+
+There is, of course, a second reason to begin with your strongest point: the court’s questioning may hold you on that first point for all or most of your argument. If you save your best point for later, you may never reach it.
+
+And you don’t want to spend most of your argument on your opponent’s favored territory.
+
+
+
+
+
+82. If you’re the appellee, take account of what has preceded, clear the underbrush, and then go to your strength.
+
+
+
+Argument for the appellee must be adaptable. What it should contain depends to a large extent on what the appellant has said and how favorably the court has received it. You may have to correct errors in the appellant’s statement of the facts, and you may want to recast in your own terms the issue presented. The appellant’s substantive points that have met with stiff resistance can be touched on lightly or, indeed, not at all.
+
+
+
+“[T]he real mistake most respondent’s counsel make is to have a speech prepared. It is a mistake to stand up and begin as if thirty minutes of oral argument did not just happen.
+
+This indicates that the respondent’s counsel has not paid any attention to the petitioner’s argument. There have been sixty questions asked, sixty questions answered, all kinds of things have happened, the case is in a complete disarray, and this guy starts off telling them what the question before the Court is. The Justices already know what the question is. I can guarantee that.”
+
+—Carter G. Phillips
+
+
+
+
+
+An appellant’s points that have been warmly received, however, or that are inherently strong, must be answered at the outset, especially if they are points that render your principal argument academic. You must “make space” for the court’s acceptance of your argument by eliminating these prior impediments. If the court has been nodding in agreement with the appellant’s contention that there is no jurisdiction, or that your principal point has been waived by failure to raise it below, the judges aren’t going to pay very close attention to a merits argument that they think is academic.
+
+You must first rebut those antecedent arguments. An active panel will
+
+interrupt you to ask for such rebuttal, but you should have enough sense to begin with it on your own.
+
+
+
+After that, your order of battle is just like that of the appellant: begin with your strength, and logical order be damned.
+
+
+
+
+
+83. Avoid detailed discussion of precedents.
+
+
+
+Whereas a full description of principal cases is often desirable in the brief, it is rarely worth the scarce time in oral argument. Stress what the cases hold, but go into their details only if the court inquires. When discussing cases cited in your brief, don’t bother to give the citations—just the case names.
+
+
+
+
+
+84. Focus quickly on crucial text, and tell the court where to find it.
+
+
+
+If the outcome of your case hinges on the meaning of a text—whether statute, regulation, ordinance, or contractual provision—move quickly to consideration of that text. It greatly facilitates comprehension if the listener can read the text during the discussion. At the very outset, refer the court to the page in your brief where the text appears.
+
+
+
+“[L]et the court see—and I mean ‘see’—the exact language with which they have to deal. Tell them, right at the beginning: ‘The statutory language involved appears at page 4 of my brief. Though the clause is a somewhat long one, the issue turns, I believe, on the proper construction or effect of the words in two lines near the top of the page.’
+
+Give the court time to find the two lines, and then read the words to them.”
+
+—Erwin N. Griswold
+
+
+
+
+
+85. Don’t beat a dead horse. Don’t let a dead horse beat you.
+
+
+
+When it’s pretty clear that the court has been persuaded on your point, go on to the next one. Most counsel observe this rule but fail to observe its corollary: when it is clear that the court will not be persuaded on your point, move on. Otherwise-capable advocates often insist on tenaciously pressing and pressing a point that the court is vigorously resisting and will obviously not accept. Tenacity is good, but use some judgment. You have limited time, and it’s foolish to waste it on a lost cause. Go on to something else.
+
+
+
+
+
+86. Stop promptly when you’re out of time.
+
+
+
+When the red light comes on, or when you are otherwise informed that your time is up, take at most five or ten seconds to finish your sentence and prepare to sit down. Don’t look yearningly at the presiding judge as if requesting more time. Don’t announce regretfully (much less resentfully) that it looks as if your time has run out. Rarely will judges relent to those unsubtle suggestions, and when they do they will resent the imposition. Bad note to end on.
+
+
+
+
+
+87. When you have time left, but nothing else useful to say, conclude effectively and gracefully.
+
+
+
+The time allotted for oral argument is typically so short that a concluding summary of your remarks, going back over all your principal points, is neither necessary nor possible. The exception to this may be the conclusion to the appellant’s rebuttal. In any event, just in case you’re confronted with a “cold” bench and end up with plenty of time, you should have a prepared 30-second summary in mind. Instead of a summary, if you have a truly unanswerable point that is fatal to your adversary’s case, you might consider concluding your main presentation or rebuttal with a zinger—
+
+pointing out (politely) that no coherent response has been forthcoming.
+
+
+
+Whether or not you have time for a summary or a zinger, you should at least conclude with a graceful ending rather than just trailing off into silence. Something like: “For the reasons we have discussed, Your Honors, fairness demands and the law requires compensation for the appellant’s injury. We ask that you affirm the judgment of the court of appeals.”
+
+
+
+What about a thank-you after that? Not all judges care about it (they’re just doing their job, after all), but none are offended and some appreciate it. 50 So why not? Don’t overdo it, however. Shun a treacly, fawning expression such as, “Thank you, Your Honors, for your time and close attention this afternoon.” Yuck. A simple two-word “Thank you” is fine.
+
+
+
+“[I]n one case petitioner’s lawyer took such a battering from the court that it was obvious to everyone the judgment below would be affirmed. Counsel for the respondent arose, bowed, and said, ‘If the Court please, I must apologize for an error in my brief.
+
+At page 32, second line from the bottom, the citation should be to 112 Federal Second and not to 112 Federal. . . . Unless there are any questions, I will submit the respondent’s case on the brief,’ and sat down. I have it on excellent authority that it was one of the most effective arguments ever heard by that court.”
+
+—Frederick Bernays Wiener
+
+
+
+
+
+To rush from the lectern would suggest that you have not thoroughly enjoyed the experience, an impression you don’t wish to convey. Calmly, deliberately close up your notes and take your seat.
+
+
+
+
+
+88. Take account of the special considerations applicable to rebuttal argument.
+
+
+
+The advice not to waive rebuttal in advance is not much needed. But the advice to use only so much as is necessary (including none at all) is rarely heeded. What is true of your main presentation is true of rebuttal as well: what doesn’t help hurts because it distracts attention from the rest. Even if you have a large chunk of rebuttal time available, don’t use it to address insignificant details. Hit the major points that need repair, and sit down.
+
+And if the other side has not laid a glove on you, and the court is obviously in your corner, leave well enough alone. Utter those words—always welcome to judicial ears—that powerfully display your confidence in your case and ingratiate you to the court by giving the judges a couple more minutes for lunch: “Unless the court has further questions, we waive our rebuttal.”
+
+
+
+“The carefully made rebuttal can be extremely helpful in leaving the Court with its focus not on the last words of your adversary but on the striking point that you believe to be most in your favor. The rebuttal should never be prepared in advance. You should make notes during the respondent’s (or appellee’s) argument, and then, just before he sits down, strike for discussion everything except the one or two points which are most helpful to your cause.”
+
+—E. Barrett Prettyman Jr.
+
+
+
+
+
+Like the reply brief, rebuttal argument is for rebuttal. It has two purposes, and two purposes only: (1) responding to significant new points raised for the first time in the appellee’s oral presentation; and (2) responding to the appellee’s significant oral attacks on your oral presentation or your brief.
+
+Don’t use it merely to rehash your affirmative points (except, if time is available, in a brief concluding summary) or to introduce an affirmative point you left out of your principal argument. If it was dispensable there, it is dispensable here. And never, ever use it to introduce a brand-new point.
+
+This sharp practice the court may well remark on.
+
+
+
+The most important task in rebuttal is to respond to any significant new point raised in the appellee’s presentation—that is, a significant point that you had no opportunity to confront in your brief or in oral argument. This will be your only chance to reply.
+
+
+
+Avoid the temptation of scattershot argument. Many lawyers who carefully pick their targets in their briefs and principal oral presentations stand up for rebuttal and shoot at everything in sight—going down the points of error they have jotted down during the appellee’s presentation. But the scattershot approach is no more effective here than anywhere else.
+
+While you’re jotting down your notes, consider which of them is worth the trouble to discuss and how those relatively few points can be effectively organized. This is multitasking under pressure, but it is essential.
+
+
+
+Because rebuttal must be prepared under such pressure, give it some advance thought. You know from the appellee’s brief what’s likely to be thrown at you. Think about which arguments it might be better to leave unaddressed in your principal argument and to come down hard on in rebuttal.
+
+
+
+While a summary of main points is not ordinarily worth the time at the end of the principal oral presentations, by the time you stand up for rebuttal the court has listened to the appellee for a long time, and your main points are far in the past. If the time is available, it would be well to go over them quickly, at the conclusion of your remarks. It’s best to omit that, however, if you already gave a summary at the end of your principal argument; besides being boring, repeated summaries display a certain lack of confidence in the judges’ short-term memory.
+
+
+
+Manner of Argument
+
+
+
+
+
+89. Look the judges in the eye. Connect.
+
+
+
+Everyone who speaks in public has heard—and most have learned—that it is a blunder to bury your head in notes. You must look up. But that is not enough. Many speakers look up at some indeterminate spot on the back wall or on the ceiling. Even with a large audience, that’s no good. But especially when you’re standing in court, look at the judge. In the eye.
+
+That’s the only way to establish the relationship you want. You are advising the judge, not merely speaking in the same room.
+
+
+
+Ah, but what if the court has more than one judge? Which of them should you favor? Some advocates fix their gaze constantly on the presiding judge, in the center of the bench. Big mistake. Even a presiding judge who happens to be a chief judge or chief justice is going to cast just one vote in the case, the same as the other members of the panel. All the other judges will, for most of the time at least, be looking at you, and you don’t want to give them the impression that you are intent on persuading only the chief.
+
+Return their gaze, looking from judge to judge as though each of them is the object of your solicitude—as indeed each of them should be.
+
+
+
+“Lawyer A, a fine attorney from a recognized Wall Street, N.Y., firm, didn’t look the court in the eye once, but delivered his entire argument looking down at his notes.
+
+Unfortunately for him, the wooden podium casts no vote in the conference.”
+
+—Hon. Myron H. Bright
+
+
+
+
+
+There is one exception to this general rule: when you’re responding to a question from the bench, look at the judge who asked it. You want to
+
+convey to that questioner that you are making a genuine effort to answer the inquiry—which you will not do if you are looking about at the questioner’s colleagues while you deliver your answer.
+
+
+
+An error almost as common as looking at (and thus seeming to address) only the presiding judge is the tendency to speak to and look at only the judge who is giving you a hard time. Even if the other members of the panel are silent, do not assume that their silence indicates that they already agree with you and need no persuasion. Unless you’re answering a question, look from one member of the court to another, making it clear that you’re speaking to all of them.
+
+
+
+
+
+90. Be conversational but not familiar.
+
+
+
+Remember the relationship you want to establish: that of a junior partner addressing a senior partner. Speak accordingly—not being obsequious or excessively deferential, nor being offhand or chummy.
+
+
+
+It’s helpful to refer to the judges by name when answering their questions
+
+—Judge Smith, Judge Jones, etc. The game is not worth the candle, however, if you’re no good at names and are liable to call Smith “Jones.”
+
+“Your Honor” will do just fine. A worse mistake, of course, is to mispronounce the name of a judge. Make sure you have that right.
+
+
+
+Avoid the temptation to show off by attributing cases raised during your argument to their sitting authors. (“As Justice Smith wrote for the Court in Doe v. Roe, . . . .”) The named judges will not be flattered and may well resent your trying to tie them down to earlier opinions. If they care about the consistency of their holdings, they (or their law clerks) will be well aware of their earlier commitments. The personal reference, if it has any purpose other than flattery, suggests an unseemly belief that judges on that bench adhere less faithfully to precedents written by others.
+
+
+
+“The judicial process will have approached perfection when the discussion between judges and lawyer is as free and natural as that between persons, mutually respecting each other, who try to explain their points of view for their common good.”
+
+—Piero Calamandrei
+
+
+
+
+
+91. Use correct courtroom terminology.
+
+
+
+Address the members of the court correctly. Don’t call a justice a judge, or a judge a justice. Give the chief judge or chief justice the correct title.
+
+Chief Justice Rehnquist used to correct counsel in mid-argument if they referred to him as “Justice Rehnquist.” Even judges who don’t correct you will notice and keep in mind that you are careless.
+
+
+
+An allied point: The words to be used in addressing a judge without stating his or her name are “Your Honor.” “Judge” or “Justice” alone is a slightly inferior substitute; “Sir” or “Ma’am” much inferior. Many judges will take no offense whatever at any of these substitutes; but some will.
+
+
+
+Be aware also of the regional variations in legal terminology. For example, the Supreme Court in New York State is a trial court, and the highest court is the Court of Appeals. In California, the intermediate court is the Court of Appeal, not the “Court of Appeals.” In Illinois it’s the Illinois Appellate Court, there being no “Illinois Court of Appeals.” The United States Court of Appeals for the District of Columbia Circuit is quite different from the District of Columbia Court of Appeals. And so on.
+
+
+
+Trivialities, you say? No. It’s a matter of legal literacy. Using the wrong term displays an ignorance of legal practice, which makes you less credible.
+
+
+
+
+
+92. Never read an argument; never deliver it from memory except the opener and perhaps the closer.
+
+
+
+Some court rules outright prohibit the reading of an argument. Even where it’s not prohibited, it’s frowned on. In the Supreme Court of the United States, the Chief Justice has been known to interrupt counsel who appeared to be reading.
+
+
+
+And of course it makes no sense to read. Remember the relationship you’re trying to establish. What would you think of an associate who came into your office to discuss a case and read from a typed sheet? Would you think it was worth kicking the case around with that lawyer?
+
+
+
+Committing an argument to memory (except for the opener) is almost as bad. Your audience can tell—and it makes you seem to be not advising and reasoning with the court, but talking at it. Memorization has the added disadvantage of leaving you at sea once your set spiel has been interrupted by a series of questions. Memorize the preferred sequence of your ideas, and approach the lectern with no more than a few outlined points.
+
+
+
+
+
+93. Treasure simplicity.
+
+
+
+Express your ideas in a straightforward fashion, not circuitously—and in plain words. When you describe events, treat them chronologically.
+
+
+
+Avoid pretentious expression. You’re trying to get judges to understand a case, not to impress them with your erudition. Your job is to make a complex case simple, not to make a simple case sound complex. This end is best achieved by clear thoughts simply expressed.
+
+
+
+Part of simplicity is brevity. Get to the point. Don’t meander in leading up to it or embellish it once made. Every fact, every observation, every argument that does not positively strengthen your case positively weakens it by distracting attention.
+
+
+
+
+
+94. Don’t chew your fingernails.
+
+
+
+All right, we have never actually seen attorneys chewing their fingernails at oral argument. But we have seen just about every other distracting and annoying sort of mannerism. Some appear to be unconscious and unintended: drumming one’s pencil on the counsel table, swaying back and forth during argument, fixing one’s gaze on the lectern or off into the middle distance instead of looking at the judge who is asking a question, fiddling with papers on the lectern, going through the argument with a frozen smile that’s either silly or supercilious. Work to identify and eliminate these unintended distractions.
+
+
+
+Other mannerisms (worse still) seem quite calculated: punctuating a telling statement by leaning forward over the lectern or poking at the air with one’s pencil, striking a pose of deep contemplation by removing one’s glasses and nibbling at the end of the earpiece, repeatedly putting one’s glasses on and off with an audible clack and using them as a gesticulating prop, occasionally stepping away from the lectern to one side or the other.
+
+These pieces of stage business, probably originating in the Actor’s Workshop, are very effective in keeping a Rumpole of the Bailey audience entertained. But they do nothing but annoy and distract the judge who is trying hard to concentrate on the factual and legal details of a complicated case. Stand up straight and speak your piece. If you would not be surprised to hear the courtroom applaud when you sit down, you have overacted.
+
+
+
+
+
+95. Present your argument as truth, not as your opinion.
+
+
+
+Avoid the first-person singular ( I, me) and such constructions as
+
+“Appellant contends that . . . ,” “It is our position that . . . ,” “In our view . .
+
+. .” All of these usages make what you want to present as truth and fact seem like merely your own or your client’s idea. And use of the first person also makes you sound full of yourself. Tell the judges what the law is, not what you think it to be.
+
+
+
+
+
+96. Never speak over a judge.
+
+
+
+As soon as a judge begins to speak—even if it’s a rude interruption—stop speaking. In midsentence, if necessary. Not only does this display appropriate respect for the court, but the stark interruption of your presentation will cause most judges to interject their questions at more appropriate times later in your argument.
+
+
+
+“The Court is not your competitor. When one of the justices wants center stage, give it up. No matter how brilliant or how telling the point you are making, when one of the justices says something, you should stop talking and start listening.”
+
+—Rex E. Lee
+
+
+
+
+
+It’s surprising how many lawyers talk over the court. Some of them insist that they do no such thing, then listen incredulously to the tapes that show the contrary. Stopping at once when you yourself are being interrupted in midsentence is not a natural instinct. You must learn to do it.
+
+
+
+Of course, some lawyers must be interrupted in midsentence if they are to be questioned at all. Some counsel have perfected the technique of catching their breath in midsentence, so that they can leave no pause between sentences and thus discourage interruptions. The technique is self-defeating.
+
+The judge will interrupt rudely if that’s the only option you provide—and while waiting to pounce on a pause between sentences will be listening only to the sounds you’re making and not to the thoughts you’re trying to convey.
+
+
+
+
+
+97. Never ask how much time you have left.
+
+
+
+It’s your job to keep track of the time, not the court’s. Many courts have a warning light that goes on about five minutes before the deadline, and then a red light when time is up. Whether or not such a device exists, you should place your own watch on the lectern and keep track of the passing minutes.
+
+Don’t, by the way, keep looking up at the big clock that hangs above the bench—especially not when the court is asking you a question.
+
+
+
+
+
+98. Never (or almost never) put any other question to the court.
+
+
+
+Needless to say, you should never put a substantive question to the court.
+
+You’re there to answer, not to ask, and some judges may resent the role-reversal. Nor should you ever ask the court whether you’ve adequately answered a question. Do your best and move on. Otherwise you may find yourself consuming your time in a fruitless effort to persuade the court of a point on which it will not be persuaded.
+
+
+
+“A judge on the bench asks the advocate what he considers a very pertinent question.
+
+The latter, instead of undertaking to answer the query, says: ‘Your Honor, let me ask you this question.’ Personally, I think that is the most classic of all ‘famous last words.’
+
+For an attorney to honestly believe that by such conduct in an oral argument he is still on the objective track of persuasion is fantastic.”
+
+—Watson Clay
+
+
+
+
+
+The only questions one would expect skillful counsel to ask are (1) whether counsel’s understanding of a question is correct, and (2) whether the court has any further questions.
+
+
+
+
+
+99. Be cautious about humor.
+
+
+
+Never tell prepared jokes. They almost invariably bomb. In Roe v. Wade, an assistant attorney general for the State of Texas, who was arguing against two women lawyers, led with what he probably considered courtly Southern humor:
+
+
+
+Mr. Chief Justice, and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.
+
+
+
+
+
+No one laughed. Onlookers said that during an embarrassing silence, Chief Justice Burger scowled at the advocate.
+
+
+
+As for uncanned humor, we have heard counsel with an easygoing sense of humor break the tension and foster amicable discourse by an unscripted witticism—always gentle and often self-deprecating. The problems are that (1) only someone with a genuinely good sense of humor, and a feel for when humor is appropriate, can pull this off; (2) many of us who think we have those qualities don’t; and (3) some judges have no sense of humor. All in all, the benefit is not worth the risk. You should, of course, display restrained appreciation for any attempt at humor by the court.
+
+
+
+
+
+100. Don’t use visual aids unintelligently.
+
+
+
+Generally speaking, visual aids are for jury trials. Judges will be offended by the schoolmarmish use of a chart and a pointer to drive home a point that can be made perfectly well in words. When you need visual reinforcement, resort first to the Appendix in your brief. That has the added advantage of remaining with the judge after the argument is over and the easel folded away. If, for example, the issue is whether there were sufficient contacts with the state to confer jurisdiction, a chart in the Appendix might list the many contacts contained in cases finding jurisdiction, compared with the few contacts contained in your case. That wouldn’t work as a blown-up chart used in live court.
+
+
+
+But sometimes visual aids are useful and proper. For example, when geography matters, as in a boundary dispute or election redistricting, the small detail shown in an Appendix can be greatly improved on with a full-size map that you can refer to during argument.
+
+
+
+Handling Questions
+
+
+
+
+
+101. Welcome questions.
+
+
+
+In many modern courts, much less oral-argument time is spent in set-piece presentations by counsel than in back-and-forth discussions between counsel and court, prompted by questions from the judges. This is particularly likely in courts whose judges have had time to study the briefs carefully. Who wants to listen to an audiobook after reading the book itself?
+
+Given the very limited time available for oral argument, judges want to hear counsel’s response to the questions that the brief has raised in their minds, rather than sit through a repetition of legal points on which they may already be persuaded. As never before, the ability to handle questions and to integrate answers into counsel’s set presentation is an essential skill of the effective advocate.
+
+
+
+“As between courts that sit in sphinxlike silence and courts that unduly interrupt, my own preference is for the latter. Indeed, I believe that most appellate advocates favor questions from the bench.”
+
+—Hon. Simon H. Rifkind
+
+
+
+
+
+Only the least competent counsel regards questions from the bench as an annoyance and distraction. What skillful and experienced counsel most fears is a “cold” bench, which leaves the advocate looking from face to face for some indication of interest, some hint about what aspects of the case a judge finds troubling. Ultimately, with no questions forthcoming, the lawyer is driven to simply regurgitating the brief. Less competent counsel considers this a relief; wise counsel considers it a disaster. The point is this: Only when you are responding to a question from the bench can you be sure that you are not wasting your time—pounding home a point on which the
+
+court is already entirely convinced or clarifying an issue on which the court is in no confusion.
+
+
+
+Indeed, if you’re not receiving any questions, it’s a good idea to invite them—for example, by concluding one portion of your argument with
+
+“Unless the court has any questions on this point [pause], I will proceed to discuss the issue of _____.”
+
+
+
+Of course, even if you regard questions (or a particular question) as a waste of your valuable time, you should never appear to do so. Nothing is so annoying to a judge as counsel’s stealing a glance upward at the court clock when a question is asked—as though thinking, “This fool is making me consume valuable time that I could be spending on repeating my brief!”
+
+
+
+But to say that you must welcome every question is not to say that you must treat the good ones and the bad ones alike. As an experienced member of the Supreme Court bar advises, it’s a bad mistake to take a question you very well know to be totally beside the point and treat it at great length simply because a Justice happened to ask it.
+
+Since you can never tell a Justice that his question is irrelevant, the only guideline I can give is that counsel should answer such a question directly and courteously, but as quickly as possible.51
+
+
+
+
+
+102. Listen carefully and, if necessary, ask for clarification.
+
+
+
+Much argument time has been wasted by counsel’s launching off into the answer to a question that is entirely different from the one the judge has posed. It sometimes takes minutes to identify and straighten out the misunderstanding. If you don’t understand a question, ask politely that it be repeated. If you think you understand it but are not entirely sure, begin your response with something like: “If I understand your question correctly, you are asking whether . . . .” But don’t damage your credibility by restating the question in a way that avoids the part of the question you’d have difficulty answering.
+
+
+
+“If you are going to be able to intelligently answer a question, you must first listen to the question. . . . [I]t is surprising how often appellate advocates, just like many people in private conversation, seem to hear only part of the question, and respond to the part of it that they heard even though the answer they give may not be an adequate response to the entire question.”
+
+—Hon. William H. Rehnquist
+
+
+
+
+
+Listen closely also to the questions that the court asks your adversary—
+
+not only because you may get the same questions but also because the general line of inquiry discloses the judges’ principal concerns, which you must be sure to address in your ensuing presentation.
+
+
+
+
+
+103. Never postpone an answer.
+
+
+
+Perhaps the most annoying of all responses to a judge’s question is this:
+
+“Your Honor, I’ll get to that point later. First, . . . .” Go where the court wants you to go! Besides offending the court’s dignity, you invite the judge to conclude (as most will) that you have no effective response. And you invite suspicion that the promised “later” will never come. (Justice John M.
+
+Harlan asserted that the usual result of a postponed answer was a never-addressed question.52) At the very least the questioner is distracted from your ensuing discussion, waiting eagerly for that to be done with and for the question to be addressed. As elegantly described by Ben W. Palmer, a Minneapolis practitioner of the mid-20th century, “everything you may say thereafter may be suspended in the air like a levitated body or more likely a corpse—the corpse of your dead case.” 53
+
+
+
+When following our advice not to postpone an answer, refrain from saying something like “Your Honor, I was planning to address that point later on, but since you ask I shall come to it at once.” Frankly, the court doesn’t care a fig whether you were planning to address it later or not—
+
+you’ll get no points for that even if the judges believe you. And the clear suggestion that the nasty ol’ judge has ruined your orderly plan of presentation will not be well received. Just answer the question.
+
+
+
+
+
+104. If you don’t know, say so. And never give a categorical answer you’re unsure of.
+
+
+
+If you don’t have the answer to a question, say so. Counsel are not expected to know everything—and even with regard to a point that they should know, acknowledged ignorance is better than proffered misinformation. If the point you don’t know seems of great interest to the court, offer to submit a supplemental brief—perhaps a letter brief.
+
+Memorize these words: “I’m sorry, Your Honor, but I don’t know the answer. I’ll provide that information by letter this afternoon.”
+
+
+
+“If you don’t know the answer, admit it; the penalty for not having an answer at your fingertips is less severe than the penalty for trying to fake it, getting caught, and giving the court an opportunity to bat you around like a cat playing with a ball of yarn.”
+
+—William J. Boyce
+
+
+
+
+
+If you’re in the least uncertain about your answer, qualify it. (“I believe, Your Honor, that the answer is yes, but I am not entirely sure.”) The court will appreciate your honesty.
+
+
+
+
+
+105. Begin with a “yes” or a “no.”
+
+
+
+Don’t force the court to ask, when you are done answering a question, “Is that a ‘yes’ or a ‘no’?” Begin with “yes” or “no” (not “maybe” or
+
+“sometimes”), and then follow with whatever qualification is necessary.
+
+“Yes, except that . . . .” “No, unless . . . .” You want an answer followed by an explanation, not an explanation followed by an answer. If the court tries to cut you off before the explanation, you can politely ask, “May I please explain my answer?” When the answer is seemingly not favorable to your case, give it anyway—and then proceed to explain why it is not relevant or not significant. Don’t run away from difficulties. Acknowledge and neutralize them.
+
+
+
+“Nonresponsive and evasive answers merely invite the guillotine.”
+
+—Hon. Thurgood Marshall
+
+
+
+
+
+106. Never praise a question.
+
+
+
+Never—never—patronize a judge by volunteering “That’s a very good question.” Of course it is! All judges’ questions are ex officio brilliant.
+
+
+
+Nor should you express your delight at a judge’s question. This was among Chief Justice Rehnquist’s bêtes noires. Here’s what he said: “[F]or heaven’s sake, forget about the rather trite response ‘I’m glad you asked that question’ or ‘That question goes to the very heart of the case.’ We have all heard this response to our questions, and we are all a little bit skeptical
+
+about it.”54
+
+
+
+
+
+107. Willingly answer hypotheticals.
+
+
+
+Many of the questions posed by an appellate panel will be so-called hypotheticals, inquiring how the rule of law you are urging will apply to a fact situation different from the one before the court. Don’t display your low regard for the intelligence of the interrogator by beginning your response to an obvious hypothetical with “That is not this case.” Of course it’s not; that’s why it’s a hypothetical.
+
+
+
+You may consider some hypotheticals to be, so to speak, off the wall.
+
+And they may indeed be so. Answer them anyway: the judge expects an answer.
+
+
+
+
+
+108. After answering, transition back into your argument—
+
+smoothly, which means not necessarily at the point where you left it.
+
+
+
+Among the greatest of challenges for the oral advocate is achieving a graceful and orderly return to one of the points in the prepared presentation after answering a question. Grace and order suggest that the return should take the listener to a point closely related to the just-delivered answer and not to whatever point was next in the advocate’s prepared outline. Some lawyers get defeated by the interruption of their set presentation and never recover. Others move cumbersomely back to their outline by saying, “Now if I could return to the point I was making a moment ago”—the implication being, “before Judge X interrupted me.”
+
+
+
+“Flexibility in an oral argument is . . . absolutely indispensable. A fixed or prepared written argument is doomed. Your argument must adjust to the questioning of the court as well as your opponent’s presentation. I must warn you that, without adaptability, your opportunity for persuasion will be a failure and neither you nor the court will learn anything of value from the exercise.”
+
+—Hon. Irving R. Kaufman
+
+
+
+
+
+The literature on advocacy teems with expressions of the idea that you must be prepared to deliver the points of your argument in any possible order and to transition smoothly between them. Chief Justice Roberts used the following method to achieve that end when he was in practice: he would summarize on separate index cards each of the four or five points essential to his presentation. Then he would repeatedly shuffle the deck and give the
+
+argument in the order in which the cards fell. In this way, he would devise seamless ways of moving from any point to any other point.
+
+
+
+
+
+109. Recognize friendly questions.
+
+
+
+Most questions you receive will be probing the weaknesses of your case.
+
+But not all of them. Occasionally, especially when you have been hard pressed by another member of the panel, a judge will try to give you a helping hand—asking, for example, a rhetorical question that suggests what your answer to an earlier hostile question might have been. It’s the height of ingratitude (and of foolishness) to mistake this friendly intervention for a hostile one and to resist the help that has been offered.
+
+
+
+“Do not assume that the question is hostile. Many are. But some are neutral, and some are helpful. One example of a helpful question is a statement which, while framed as a question (‘Is it your position that?’ or ‘Is it not true that?’), is actually a more persuasive argument than has come to your unassisted mind. Some questions are analogous to a lifeline extended to a drowning person.”
+
+—Rex E. Lee
+
+
+
+
+
+110. Learn how to handle a difficult judge.
+
+
+
+You will sometimes encounter a judge whose questions are designed not to obtain enlightenment but to demonstrate to colleagues the weakness of your case. During your exchange with such a questioner, be sure to maintain eye contact. Don’t display your discomfort by looking down at some imaginary text whence will come your redemption. Look the judge straight in the eye and continue responding in a professional, firm manner.
+
+
+
+It’s always a mistake to evade questions, but especially so when the question comes from a difficult judge. That judge will persist, and you’ll end up spending even more time reasoning with someone who will not be persuaded. Confront the question squarely with your best answer, and try to move on.
+
+
+
+“[T]he rule is a very simple one: with both good and bad judges, it is in your interest, and in the interests of your clients, to maintain fastidious politeness and an undiminished attitude of respect. Even if you think your judge is a rude, ill-educated boor, behave toward him or her with perfect courtesy. You’ll accomplish nothing if you don’t.”
+
+—Keith Evans
+
+
+
+
+
+Sometimes such a questioner, after you have answered as best you can, will continue to press the same point, even though (indeed, because) you are unable to say anything more. You must devise a polite, nonalienating way to end this exchange, or it will consume much of your argument time.
+
+After a decent amount of time has been spent on the point, it would be
+
+appropriate to say, “Your Honor, I cannot respond to your objection with anything other than what I have already said.”
+
+
+
+A similar problem is presented when a judge’s questions about one part of your presentation are so numerous that the time remaining for an important but yet-to-be-addressed portion is growing short. You must try, politely, to regain control of the subject matter. The court will not take it amiss if, after responding to one question, you continue quickly: “With the court’s permission, I would like to turn now to . . . .”
+
+
+
+Whatever else you do when confronted by a hostile and unreasonable judge, don’t reply in kind. Don’t become hostile yourself; don’t display anger, annoyance, or impatience. Keep telling yourself that you owe it to your client—because you do.
+
+
+
+Even so, lawyers are entitled to take great delight in the wonderful comeuppances to judicial boorishness that some of their more rash predecessors have devised. Our favorite was also a favorite of Justice Robert H. Jackson. 55 A noted barrister, F.E. Smith, had argued at some length in an English court when the judge leaned over the bench and said:
+
+“I have read your case, Mr. Smith, and I am no wiser than I was when I started.” To which the barrister replied: “Possibly not, My Lord, but far better informed.”56 Smith, who later became a famous judge as the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity. 57 We doubt that, but in any case we don’t recommend that you emulate him.
+
+
+
+
+
+111. Beware invited concessions.
+
+
+
+We’ve advised you to volunteer concessions that careful deliberation shows are necessary (§ 11). But concessions that you’re pressed to make on horseback, at oral argument, are something else. The unduly accommodating lawyer—a frequently observed creature, especially in appellate courts—has given away many a case. The lawbooks are filled with affirmances that would have been reversals or remands for further proceedings were it not for the concession of a crucial fact by accommodating counsel. And propositions of law that might well have been exceedingly difficult for an opinion to establish have often been happily resolved (for purposes of the case at hand, at least) by foolish concessions.
+
+
+
+“Never be intimidated. Frequently, judges will ask, ‘Of course, counselor, you will concede, won’t you, that . . . ?’ Be very careful about answering this kind of question. It is hardly ever a friendly one. It is far better to say bravely that you will not concede an issue than to find out later that your concession, hastily made at oral argument, was the reason you lost.’”
+
+—Talbot D’Alemberte
+
+
+
+
+
+Any judge who presses you for a concession might well use it against you. That judge may, for example, be testing the validity of your basic premise—or rather, the fidelity of your adherence to that basic premise.
+
+Let’s say you’re defending the lawfulness of an officer’s traffic stop on the ground that there was an objectively valid basis for the stop, such as a broken taillight on the vehicle. Counsel for the defense contends that the stop was unlawful because the real reason for it was the officer’s suspicion that the occupants of the car were drug-runners. You might get the
+
+following honey-coated inquiry from the court: “Counsel, surely you would agree that an officer could not pull a car over—even a car with a broken taillight—solely for the purpose of harassing its occupants.” What a wonderful opportunity for you to show that you are just as reasonable a person as this judge. But if you rise to this bait, you will have abandoned the fundamental premise of your case: that whatever the subjective motivation for a stop, it is validated by objective indication of probable cause. For being so accommodating, you can expect the court’s opinion excluding the evidence derived in the traffic stop to read: “Counsel has acknowledged that the subjective intent of the arresting officer is relevant, and we see no difference between an invalidating intent to harass and an invalidating intent to search for drugs without probable cause.”
+
+
+
+It is not unusual for a judge to come to the bench, having read all the briefs, with a clear idea of what the judgment ought to be but for one missing fact, or but for one possible legal obstacle. If the judge can get you to concede that fact, or to concede a point that would make that legal obstacle irrelevant, the opinion is all but written. You should not cooperate in your own destruction.
+
+
+
+After the Battle
+
+
+
+
+
+112. Advise the court of significant new authority.
+
+
+
+When argument is over, and the case is under advisement, your job is not quite done. Be on the lookout for significant new authority—a new governing case or a new statutory provision—that would have formed part of your argument had it existed earlier. Bring it to the court’s attention by letter (with copy to opposing counsel, of course).58 Two caveats: (1) Be sure the authority is new—i.e., became available postargument. This is not a device to plug the holes in your brief. (2) Be sure the authority is significant. You will lose points for bothering an appellate court with an additional lower-court case that came out your way.
+
+
+
+
+
+113. If you’re unhappy with the ruling, think about filing a motion for reconsideration.
+
+
+
+Motions for reconsideration bear various titles. In federal district courts, for example, a motion for reconsideration of the judgment is called a
+
+“motion to alter or amend judgment,” 59 and in federal courts of appeals and the Supreme Court a “petition for rehearing.”60 It’s hard to provide good advice about motions for reconsideration in the abstract, outside the context of a particular court. In the Supreme Court of the United States, petitions for rehearing are rarely filed by paid counsel and are almost never granted, even on petitions for certiorari. You’d almost certainly be wasting your time and your client’s money. In most other courts, however, motions for reconsideration are not unusual. One commentary calls them “routine” in federal courts61—a phenomenon that may have something to do with the fact that the pendency of such a motion extends the time for filing a notice of appeal or petition for writ of certiorari. 62 Statistics on the success of motions for reconsideration are hard to come by, and may not be very informative anyway, since there is almost certainly great variation from court to court. Suffice it to say that your chances of success are slim. 63
+
+They’ll be better (but still not good) if you limit your motions as we suggest below.
+
+
+
+One ground that always makes a motion to reconsider a merits ruling appropriate, and is indeed welcomed by the court, is a subsequent decision from a governing authority showing the court’s judgment or ruling to be in error. The court is no more eager to be reversed on appeal than you are eager to incur the expense of an appeal. Short of that, however, it’s wise to adhere to the standard of Rule 40 of the Federal Rules of Appellate Procedure, which requires the motion for reconsideration to explain the
+
+points that, in the movant’s opinion, the court has “overlooked or misapprehended.” If the judgment or order mentions your point, understands it, and rejects it, a motion for reconsideration will be useless and perhaps even resented. As one federal court of appeals has put it:
+
+“Cases are not decided by timid panels who are in doubt of the results reached. Attempts to overcome deficiencies in the record or reiteration of previously rejected legal theories will not prompt a change of mind.”64 In extremely busy courts that issue rulings unaccompanied by reasons, there is no way of knowing whether your point was overlooked or misunderstood—
+
+and a motion for reconsideration may stand a better (though still not a hardy) chance of success. Whatever the court, never use a motion for reconsideration “as a means to argue new facts or issues that inexcusably
+
+were not presented to the court in the matter previously decided.”65
+
+
+
+The brief supporting a motion for reconsideration should in some respects resemble a petition for certiorari: you’re seeking discretionary action and must persuade the court to exercise its discretion. Zero in on the one or two respects in which the judgment or ruling mistakes the facts or the law, and state specifically how it needs to be amended. You must do this, needless to say, in the most respectful and nonaccusatory manner.
+
+Don’t make the common mistake of falling into a carping, querulous tone.
+
+You’re trying to help the court, on further reflection, get it right—not complaining about the court’s getting it wrong.
+
+
+
+Sometimes you may have no hope of getting an appellate panel to change its mind, but may be convinced that the panel’s judgment would not be supported by the full court. If that is so, seek reconsideration (rehearing) en
+
+banc.66 In such a motion it is particularly important to emphasize how the judgment is in conflict with the judgment of an earlier panel of the same court, how it places the court in disagreement with other intermediate appellate courts, and how the point of law at issue is of general significance.
+
+
+
+Sometimes an opinion may misdescribe your client in a manner that can have adverse consequences—for example, mistakenly calling your corporate client a “personal corporation,” which might worsen the
+
+shareholders’ position in an unrelated tax audit. Or the opinion may misstate uncontested facts in a way that places your client in a bad light.
+
+Before wheeling out the artillery of a motion for reconsideration to correct such details, see if there is some other accepted manner of bringing them to the court’s attention. In the Supreme Court of the United States, for example, the slip opinion released on the day of the judgment invites the world at large to point out errors of detail before the opinion is published in the United States Reports. Of course, copies of all correspondence suggesting changes must be sent to the other side.
+
+
+
+
+
+114. Learn from your mistakes.
+
+
+
+When argument is over, recall it. Conduct a postmortem with a friend or associate who was present. Jot down the respects in which you know you fell short, and consider how you could improve in those respects next time.
+
+
+
+
+
+115. Plan on developing a reputation for excellence.
+
+
+
+Don’t take the court’s judgment as the measure of your competence.
+
+When the judgment is announced, and it turns out you have lost, don’t take it too much to heart; and when it turns out you have won, don’t let it go to your head. The court, after all, makes its judgment on the basis of what it believes to be the law, not on the basis of which side presented the better argument. The odds are always better with skilled counsel; but it’s not uncommon for a client to win despite a shoddy lawyer, or to lose despite a superb lawyer—because neither the bad argument nor the excellent argument could obscure the clarity of the law or alter the facts.
+
+
+
+“[P]erhaps the most valuable thing the lawyer brings into the courtroom when he is an advocate is his reputation. His reputation for candor and soundness is worth three points in his brief and a marvelous opening for his oral argument. If his reputation is bad, I don’t care what he says or how he says it—he is climbing a glass mountain in shoes covered with oil.”
+
+—Hon. Charles D. Breitel
+
+
+
+
+
+Whatever the outcome of the case, the quality of your performance will have advanced or hindered your career. If you appear before the court in question with any frequency, the judges will remember you as fair-minded, reliable, and trustworthy—or the opposite. If the former, they will be more likely to grant discretionary review in a case that you assert to be worth considering; and when you appear to argue, the credibility you have developed will give you a leg-up. If your argument has been uninformative and misleading, you may well begin your next case at a disadvantage.
+
+
+
+So look upon this profession of advocacy as a long-term continuum, each individual case not standing in isolation but profiting from and building upon your prior success. Argue not just for the day but for reputation.
+
+
+
+
+
+Sources for Inset Quotations
+
+
+
+
+
+Frontispiece: T.W. Wakeling, The Oral Component of Appellate Work, 5
+
+Dalhousie L.J. 584, 586 (1979).
+
+
+
+Frontispiece: Dionysius of Halicarnassus, On Literary Composition (ca. 30
+
+B.C.), in Dionysius of Halicarnassus: The Critical Essays (Stephen Usher trans., 1985).
+
+
+
+Page 5: Samuel E. Gates, “Hot Bench or Cold Bench: When the Court Has Not Read the Brief Before Oral Argument,” in Counsel on Appeal 107, 112-13 (Arthur A. Charpentier ed., 1968).
+
+
+
+Page 8: E. Barrett Prettyman Jr., Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions, Litig., Winter 1978, at 16, 18-19.
+
+
+
+Page 13: Hon. Wiley B. Rutledge, The Appellate Brief, 28 ABA J. 251, 254
+
+(1942).
+
+
+
+Page 16: Cicero, “De Inventione” (ca. 87 B.C.), in De Inventione; De Optimo Genere Oratorum; Topica 125 (H.M. Hubbell trans., 1949; repr.
+
+2006).
+
+
+
+Page 19: Hon. Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Proc. 7, 21 (1999).
+
+
+
+Page 21: Frederick Bernays Wiener, Essentials of an Effective Appellate Brief, 17 Geo. W. L. Rev. 143, 147 (1949).
+
+
+
+Page 23: Quintilian, 2 Institutio Oratoria 303 (ca. A.D. 95; H.E. Butler trans., 1922).
+
+
+
+Page 24: Demetrius of Phalerum, “On Style,” (ca. 300 B.C.; C.M.A. Grube trans.), in Readings in Classical Rhetoric 256, 258 (Thomas W. Benson & Michael H. Prosser eds., 1988).
+
+
+
+Page 26: Hon. Luke M. McAmis, The Lawyer and the Court of Appeals, 24
+
+Tenn. L. Rev. 279, 281-82 (1956).
+
+
+
+Page 32: Hon. Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 333.
+
+
+
+Page 34: T.W. Wakeling, The Oral Component of Appellate Work, 5
+
+Dalhousie L.J. 584, 590 (1979).
+
+
+
+Page 43: F.C.S. Schiller (as quoted in Jerome Frank, Courts on Trial 184-85 (1949)).
+
+
+
+
+
+Page 61: Rt. Hon. Lord Birkett, “The Art of Advocacy: Character and Skills for the Trial of Cases” (1948), in Advocacy and the King’s English 919, 932 (George Rossman ed., 1960).
+
+
+
+Page 69: Arthur Schopenhauer, Essays and Aphorisms 199 (1851; R.J.
+
+Hollingdale trans., 1970).
+
+
+
+Page 70: Quintilian, Quintilian on the Teaching of Speaking and Writing: Translations from Books One, Two, and Ten of the Institution Oratoria 155
+
+(ca. A.D. 95; James J. Murphy trans., 1987).
+
+
+
+Page 73: Robert L. Stern, Appellate Practice in the United States 332
+
+(1981).
+
+
+
+Page 77: Hon. Fred M. Vinson, Work of the U.S. Supreme Court, Tex. B.J., Dec. 1949, at 551, 552.
+
+
+
+Page 81: Quintilian, Quintilian on the Teaching of Speaking and Writing: Translations from Books One, Two, and Ten of the Institution Oratoria 147
+
+(ca. A.D. 95; James J. Murphy trans., 1987).
+
+
+
+Page 83: Frank E. Cooper, Stating the Issue in Appellate Briefs: A Matter of Legal Strategy, 39 ABA J. 13, 13 (1953).
+
+
+
+Page 94: Harold R. Medina, “The Oral Argument on Appeal” (1934), in Advocacy and the King’s English 537, 540 (George Rossman ed., 1960).
+
+
+
+Page 97: Robert L. Stern, Appellate Practice in the United States 277
+
+(1981).
+
+
+
+Page 99: Hon. Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 327.
+
+
+
+Page 107: Hon. Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 169 (1978).
+
+
+
+Page 110: Sherman Kent, Writing History 61 (1941).
+
+
+
+Page 112: Cicero, “De Inventione” (ca. 87 B.C.), in De Inventione; De Optimo Genere Oratorum; Topica 121 (H.M. Hubbell trans., 1949; repr.
+
+2006).
+
+
+
+Page 114: Hon. Wiley B. Rutledge, The Appellate Brief, 28 ABA J. 251, 255 (1942).
+
+
+
+Page 120: John Algeo, “More Acronyms,” 51 Am. Speech 152 (1976).
+
+
+
+Page 126: Howard C. Westwood, “Brief Writing” (1935), in Advocacy and the King’s English 563, 565 (George Rossman ed., 1960).
+
+
+
+Page 128: Hon. Daniel M. Friedman, “Winning on Appeal,” in Appellate Practice Manual 129, 133 (Priscilla Anne Schwab ed., 1992).
+
+
+
+Page 136: Mark P. Painter, The Legal Writer 35 (2002).
+
+
+
+Page 142: Henry S. Wilcox, Foibles of the Bar 135 (1906).
+
+
+
+Page 145: Frank H. Vizetelly, How to Use English 20 (1933).
+
+
+
+Page 147: Hon. William H. Rehnquist, From Webster to Word-Processing: The Ascendance of the Appellate Brief, 1 J. App. Prac. & Proc. 1, 5 (1999).
+
+
+
+Page 151: F. Trowbridge Vom Baur, The Art of Brief Writing, Scrivener, 1975-1976, at 1, 3.
+
+
+
+Page 154: Hon. Murray I. Gurfein, “Appellate Advocacy, Modern Style,”
+
+in Appellate Practice Manual 256, 256 (Priscilla Anne Schwab ed., 1992).
+
+
+
+Page 155: John W. Davis, The Argument of an Appeal, 26 ABA J. 895, 897
+
+(1940).
+
+
+
+Page 157: Rt. Hon. Lord Macmillan, “Some Observations on the Art of Advocacy” (1933), in Law and Other Things 200, 206-07 (1937).
+
+
+
+Page 159: Greville Janner, Janner’s Complete Speechmaker 128 (1981).
+
+
+
+Page 160: Ronald J. Rychlak, Effective Appellate Advocacy: Tips from the Teams, 66 Miss. L.J. 527, 530 n.3 (1997).
+
+
+
+Page 162: Hon. Robert H. Jackson, Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 ABA J. 801, 862 (1951).
+
+
+
+Page 164: H. Graham Morison, Oral Argument of Appeal, 10 Wash. & Lee L. Rev. 1, 7 (1953).
+
+
+
+Page 166: Edward L. Lascher, Oral Argument for Fun and Profit, Cal. St.
+
+B.J., July-Aug. 1973, at 398, 402.
+
+
+
+Page 168: Hon. Richard A. Posner, Convincing a Federal Court of Appeals, Litig., Winter 1999, at 3, 62.
+
+
+
+Page 170: Carter G. Phillips, Advocacy Before the United States Supreme Court, 15 T.M. Cooley L. Rev. 177, 191 (1988).
+
+
+
+Page 172: Erwin N. Griswold, Appellate Advocacy with Particular Reference to the United States Supreme Court, N.Y. St. B.J., Oct. 1972, at 375, 377.
+
+
+
+Page 174: Frederick Bernays Wiener, Oral Advocacy, 62 Harv. L. Rev. 56, 59-60 (1948).
+
+
+
+Page 175: E. Barrett Prettyman Jr., Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions, Litig., Winter 1978, at 16, 19.
+
+
+
+Page 178: Hon. Myron H. Bright, The Changing Nature of the Federal Appeals, 65 F.R.D. 496, 507 (1975).
+
+
+
+Page 180: Piero Calamandrei, Eulogy of Judges 35 (J.C. Adams & C.A.
+
+Phillips Jr. trans., 1942; repr. 1992).
+
+
+
+Page 184: Rex E. Lee, Oral Argument in the Supreme Court, 72 ABA J., June 1986, at 60, 61.
+
+
+
+Page 186: Watson Clay, “Presenting Your Case to the Court of Appeals”
+
+(1952), in Advocacy and the King’s English 330, 332 (George Rossman ed., 1960).
+
+
+
+Page 189: Hon. Simon H. Rif kind, “Appellate Courts Compared,” in Counsel on Appeal 163, 187 (Arthur A. Charpentier ed., 1968).
+
+
+
+Page 191: Hon. William H. Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev.
+
+289, 302 (1986).
+
+
+
+Page 193: William J. Boyce, Reflections on Going to the Show, 17 App.
+
+Advocate (report of the State Bar of Texas Appellate Section), Summer 2004, at 21, 22-23.
+
+
+
+Page 194: Hon. Thurgood Marshall, “The Federal Appeal,” in Counsel on Appeal 139, 150 (Arthur A. Charpentier ed., 1968).
+
+
+
+Page 195: Hon. Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 171-72 (1978).
+
+
+
+Page 196: Rex E. Lee, Oral Argument in the Supreme Court, 72 ABA J., June 1986, at 60, 60.
+
+
+
+Page 197: Keith Evans, The Language of Advocacy 75-76 (1998).
+
+
+
+Page 199: Talbot D’Alemberte, Oral Argument: The Continuing Conversation, Litig., Winter 1999, at 12, 67.
+
+
+
+Page 205: Hon. Charles D. Breitel, “A Summing Up,” in Counsel on Appeal 193, 205-06 (Arthur A. Charpentier ed., 1968).
+
+
+
+
+
+Recommended Sources
+
+
+
+General English-Language Dictionaries (latest edition unless otherwise noted)
+
+
+
+• The American Heritage Dictionary of the English Language (thorough, with good usage notes).
+
+• Merriam-Webster’s Collegiate Dictionary (used by most book publishers, but be wary of its permissive usage notes).
+
+• The Random House Dictionary of the English Language.
+
+• The Shorter Oxford English Dictionary.
+
+• Webster’s New World College Dictionary (used by most newspapers).
+
+• Webster’s Second New International Dictionary (William Allan Neilson ed., 1934) (still quite sound on historical matters, and exhaustive on traditional legal and literary terms).
+
+• Webster’s Third New International Dictionary (Philip B. Gove ed., 1961) (scholarly but infamously permissive in neglecting to include accurate usage tags—so use it discriminatingly).
+
+
+
+Usage Guides
+
+
+
+• Theodore M. Bernstein, The Careful Writer: A Modern Guide to English Usage (1965).
+
+• Mark Davidson, Right, Wrong, and Risky: A Dictionary of Today’s American English Usage (2006).
+
+• H.W. Fowler, A Dictionary of Modern English Usage (Ernest Gowers ed., 2d ed. 1965).
+
+• Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed.
+
+1995).
+
+• Bryan A. Garner, Garner’s Modern American Usage (2d ed. 2003).
+
+• Barbara Wallraff, Word Court: Wherein Verbal Virtue Is Rewarded, Crimes Against the Language Are Punished, and Poetic Justice Is Done (2001).
+
+
+
+Thesauruses
+
+
+
+• The Oxford American Writer’s Thesaurus (Christine A. Lindberg ed., 2004).
+
+• J.I. Rodale, The Synonym Finder (Laurence Urdang ed., rev. ed.
+
+1986).
+
+• Roget’s International Thesaurus (Robert L. Chapman ed., 1992).
+
+• Roget’s Thesaurus of English Words and Phrases (George Davidson ed., 2006).
+
+
+
+Grammar
+
+
+
+• George O. Curme, A Grammar of the English Language, 2 vols.
+
+(1935; much reprinted).
+
+• Bryan A. Garner, “Grammar and Usage,” ch. 5 of The Chicago Manual of Style (15th ed. 2003) (a 92-page restatement of English grammar).
+
+• Edward D. Johnson, The Handbook of Good English (1982).
+
+• Patricia T. O’Conner, Woe Is I: The Grammarphobe’s Guide to Better English in Plain English (2d ed. 2004).
+
+• John B. Opdycke, Harper’s English Grammar (Stewart Benedict ed., 1965).
+
+• John E. Warriner, English Composition and Grammar: Complete Course (1988).
+
+
+
+General Writing Guidance
+
+
+
+• Rudolf Flesch, The Art of Readable Writing (1949).
+
+• Robert Graves & Alan Hodge, The Reader over Your Shoulder (2d ed. 1947).
+
+• William Strunk & E.B. White, The Elements of Style (4th ed. 2000).
+
+• John R. Trimble, Writing with Style: Conversations on the Art of Writing (2d ed. 2000).
+
+• William Zinsser, On Writing Well (6th ed. 2006).
+
+
+
+Legal Writing Style
+
+
+
+• Bryan A. Garner, The Elements of Legal Style (2d ed. 2002).
+
+• Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed.
+
+2006).
+
+• Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).
+
+
+
+Editing Guidance
+
+
+
+• The Chicago Manual of Style (15th ed. 2003) (the classic American text).
+
+• William A. Sabin, The Gregg Reference Manual (10th ed. 2004).
+
+• Words into Type (3d ed. 1974).
+
+
+
+Classical Rhetoric
+
+
+
+• Aristotle, The Art of Rhetoric (ca. 330 B.C.; H.C. Lawson-Tancred trans., rev. ed. 2004); or Aristotle, Rhetoric (Lane Cooper trans., 1932).
+
+• Marcus Tullius Cicero, On Oratory and Orators (ca. 55 B.C.; J.S.
+
+Watson trans., 1986).
+
+• Demetrius of Phalerum, On Style (ca. 300 B.C.; T.A. Moxon trans., 1943).
+
+• Quintilian, Quintilian on the Teaching of Speaking and Writing: Translations from Books One, Two, and Ten of the Institution Oratoria (ca. A.D. 95; James J. Murphy trans., 1987).
+
+• Readings in Classical Rhetoric (Thomas W. Benson & Michael H.
+
+Prosser eds., 1988).
+
+
+
+Modern Guides to Classical Rhetoric
+
+
+
+• William J. Brandt, The Rhetoric of Argumentation (1970).
+
+• Edward P.J. Corbett, Classical Rhetoric for the Modern Student (4th ed. 1998).
+
+• Winifred Bryan Horner, Rhetoric in the Classical Tradition (1988).
+
+• James J. Murphy, A Synoptic History of Classical Rhetoric (1983).
+
+• Halford Ryan, Classical Communication for the Contemporary Communicator (1992).
+
+• Brian Vickers, In Defense of Rhetoric (1988).
+
+• Richard M. Weaver, The Ethics of Rhetoric (1985).
+
+
+
+Brief-Writing
+
+
+
+• Bryan A. Garner, The Winning Brief (2d ed. 2004).
+
+• Girvan Peck, Writing Persuasive Briefs (1984).
+
+• Frederick B. Wiener, Briefing and Arguing Federal Appeals (rev. ed.
+
+1967).
+
+
+
+Public Speaking
+
+
+
+• Reid Buckley, Speaking in Public (1988).
+
+• Ron Hoff, “I Can See You Naked” (1992).
+
+• Louis Nizer, Thinking on Your Feet (1940).
+
+• Peggy Noonan, Simply Speaking (1998).
+
+• Charles Osgood, Osgood on Speaking (1988).
+
+• Jack Valenti, Speak Up with Confidence (2002).
+
+
+
+Oral Argument
+
+
+
+• John W. Davis, The Argument of an Appeal, 26 ABA J. 895 (1940).
+
+• David C. Frederick, Supreme Court and Appellate Advocacy 101
+
+(2003).
+
+• Bryan A. Garner, The Winning Oral Argument (2007).
+
+• John M. Harlan, What Part Does the Oral Argument Play in the Conduct of an Appeal? , 41 Cornell L.Q. 6 (1955).
+
+• Robert H. Jackson, Advocacy Before the Supreme Court, 37 ABA J.
+
+801, 863 (1951).
+
+• Rex E. Lee, Oral Argument in the Supreme Court, ABA J., June 1986, at 60, 62.
+
+• Harold R. Medina, The Oral Argument on Appeal, 20 ABA J. 139
+
+(1934).
+
+• E. Barrett Prettyman, Some Observations Concerning Appellate Advocacy, 39 Va. L. Rev. 285, 302 (1953).
+
+• E. Barrett Prettyman Jr., Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions, Litig., Winter 1978, at 16.
+
+• William H. Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289 (1986).
+
+
+
+Logic and Critical Thinking
+
+
+
+• Monroe C. Beardsley, Thinking Straight (4th ed. 1975).
+
+• Neil Browne & Stuart Keeley, Asking the Right Questions: A Guide to Critical Thinking (8th ed. 2006).
+
+• Edward de Bono, De Bono’s Thinking Course (rev. ed. 1994).
+
+• Alec Fisher, The Logic of Real Arguments (2d ed. 2004).
+
+• Antony Flew, How to Think Straight (2d ed. 1998).
+
+
+
+Legal Reasoning
+
+
+
+• Wilson Huhn, The Five Types of Legal Argument (2002).
+
+• O.C. Jensen, The Nature of Legal Argument (1957).
+
+• Edward H. Levi, An Introduction to Legal Reasoning (1949).
+
+• Douglas Lind, Logic and Legal Reasoning (2001).
+
+• Clarence Morris, How Lawyers Think (1937).
+
+• Kenneth J. Vandevelde, Thinking Like a Lawyer: An Introduction to Legal Reasoning (1996).
+
+
+
+Standards of Decision
+
+
+
+• Harry T. Edwards & Linda A. Elliott, Federal Standards of Review: Review of District Court Decisions and Agency Actions (2007).
+
+
+
+1
+
+Isocrates, Antidosis (ca. 353 B.C.; George Norlin trans.), in Readings in Classical Rhetoric 47, 49 (Thomas W. Benson & Michael H. Prosser eds., 1988).
+
+2
+
+Aristotle, Rhetoric, Book 1, ch. 2 (ca. 330 B.C.), in Rhetoric and Poetics of Aristotle 25 (W. Rhys Roberts & Ingram Bywater trans., 1954).
+
+3
+
+Rhetoric ch. 3.17, at 257 (ca. 350 B.C.; H.C. Lawson-Tancred trans., 1991; repr. 2004).
+
+4
+
+Id.
+
+5
+
+Harold R. Medina, The Oral Argument on Appeal, 20 ABA J. 139, 142-43
+
+(1934).
+
+6
+
+See Susan Bell, Improving Our Writing by Understanding How People Read Personally Addressed Household Mail, 57 Clarity 40 (2007).
+
+7
+
+Cicero, Cicero on Oratory and Orators 143 (ca. 45 B.C.; Ralph A. Micken trans., 1986).
+
+8
+
+Lord Denning, The Family Story 174 (1981).
+
+
+
+9
+
+An Unpublished Letter of Chancellor James Kent, 9 Green Bag 206, 210
+
+(1897).
+
+10
+
+Cal. Civ. Code §§ 3509-3548.
+
+11
+
+Whitman Knapp, Why Argue an Appeal ? If So, How? , 14 Record N.Y.C.B.A. 415, 417 (1959).
+
+12
+
+Simon H. Rifkind, “Appellate Courts Compared,” in Counsel on Appeal 163, 178-79 (Arthur A. Charpentier ed., 1968).
+
+13
+
+Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 Tul. L. Rev. 207, 224 (1995).
+
+14
+
+Hon. James L. Robertson, “Reality on Appeal,” in Appellate Practice Manual 119, 124-25 (Priscilla Anne Schwab ed., 1992).
+
+15
+
+O.C. Jensen, The Nature of Legal Argument 20 (1957).
+
+16
+
+For much of the analysis that follows, we’re indebted to Francis M. Nevins, To Split or Not to Split: Judicial Divisibility of the Copyright Interests of Authors and Others, 40 Fam. L.Q. 499, 513 (2006).
+
+
+
+17
+
+17 U.S.C. § 201(e).
+
+18
+
+218 F.3d 432, 436-37 (5th Cir. 2000).
+
+19
+
+S. 1359, 93d Cong., 1st Sess. 58, 119 Cong. Rec. 9387 (1973).
+
+20
+
+Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and Admin. of Justice of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 2078 (1975).
+
+21
+
+17 U.S.C. § 201(e).
+
+22
+
+See William Patry, Copyright and Community Property: The Question of Preemption, 28 Bull. of the Copyright Soc’y 237, 267 (1981).
+
+23
+
+Video interview with B. Garner, 20 Apr. 2006.
+
+24
+
+Sup. Ct. R. 26.
+
+25
+
+Sup. Ct. R. 25 (2).
+
+
+
+26
+
+Sup. Ct. R. 10.
+
+27
+
+405 U.S. 438, 453 (1972) (emphasis in original).
+
+28
+
+Richard A. Posner, Law and Literature: A Misunderstood Relation 305
+
+(1988).
+
+29
+
+Adapted from id.
+
+30
+
+See Garner, The Winning Brief 53-97 (2d ed. 2004).
+
+31
+
+704 So. 2d 229 (La. 1997).
+
+32
+
+Sup. Ct. R. 14 (1)(f), 24 (1)(f).
+
+33
+
+Fed. R. App. P. 28 (a)(4).
+
+34
+
+Fed. R. App. P. 28 (a)(6).
+
+35
+
+Sup. Ct. R. 24 (1)(j).
+
+36
+
+See Fed. R. Civ. P.28 (j).
+
+37
+
+Garner, The Elements of Legal Style 81 (1991).
+
+38
+
+Garner, The Elements of Legal Style 81 (2d ed. 2000).
+
+39
+
+John R. Trimble, Writing with Style: Conversations on the Art of Writing (2d ed. 2000).
+
+40
+
+See William Zinsser, On Writing Well 75 (6th ed. 1998) (“Your style will be warmer and truer to your own personality if you use contractions like won’t and can’t when they fit comfortably into what you’re writing.”); David W.
+
+Ewing, Writing for Results in Business, Government, and the Professions 358 (1974) (“Such common contractions as it’s, that’s, they’re, and she’ll are correct in almost all written communications in business and the professions.”); Rudolf Flesch, The Art of Readable Writing 82 (1949) (“[t]he most conspicuous and handiest device of [writing readably] is to use contractions.”).
+
+41
+
+Wayne A. Danielson & Dominic L. Lasorsa, A New Readability Formula Based on the Stylistic Age of Novels, 33 J. Reading 194, 196 (1989).
+
+42
+
+See Garner, “Bias-Free Language,” in The Chicago Manual of Style §
+
+5.204, at 233 (15th ed. 2003).
+
+43
+
+Hon. Daniel M. Friedman, “Winning on Appeal,” in Appellate Practice Manual 129, 134 (Priscilla Anne Schwab ed., 1992).
+
+44
+
+The Bluebook: A Uniform System of Citation § 1.2, at 46-48 (18th ed.
+
+2005).
+
+45
+
+ALWD Citation Manual: A Professional System of Citation § 44.3, at 324-25 (3d ed. 2006).
+
+46
+
+E.g. , NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d 794, 799-800 (D.C. Cir.
+
+2007) (“[T]his argument is found in a single footnote in NSTAR’s opening brief, and such a reference is not enough to raise an issue for our review.”); Smithkline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1320 (Fed. Cir.
+
+2006) (“[A]rguments raised in footnotes are not preserved.”); Lutwin v.
+
+Thompson, 361 F.3d 146, 148 n.1 (2d Cir. 2004) (“We decline to consider this argument because ‘[a] contention is not sufficiently presented for appeal if it is conclusorily asserted only in a footnote.’” [quoting Tolbert v.
+
+Queens College, 242 F.3d 58, 75 (2d Cir. 2001)]); U.S. v. Dairy Farmers of Am., Inc. , 426 F.3d 850, 856 (6th Cir. 2005) (“An argument contained only in a footnote does not preserve an issue for our review.”); Sledd v. Lindsay, 102 F.3d 282, 288 (7th Cir. 1996); Equipment Mfrs. Inst. v. Janklow, 300
+
+F.3d 842, 848 n.2 (8th Cir. 2002) (“[T]his Court will not consider a claim improperly presented in a footnote.”); Bakalis v. Golembeski, 35 F.3d 318, 326 n.8 (7th Cir. 1994) (An argument “made only in a footnote in the opening brief” and “not fully developed until the reply brief . . . is deemed waived.”); People v. Crosswhite, 124 Cal. Rptr. 2d 301, 306 n.5 (Ct. App.
+
+2001) (“This argument is waived by raising it only in a footnote under an argument heading which gives no notice of the contention.”); Roberts v.
+
+Worcester Redev. Auth. , 759 N.E.2d 1220, 1227 n.11 (Mass. App. Ct. 2001) (“We are not required to address an argument raised in a footnote.”).
+
+47
+
+See William Glaberson, Legal Citations on Trial in Innovation v. Tradition, N.Y. Times, 8 July 2001, at 1, 16.
+
+48
+
+See Garner on Language and Writing 436-55, 460-71 (2008).
+
+49
+
+For cited examples, see Garner. Legal Writing in Plain English (2001).
+
+50
+
+See Arthur L. Alarcon, “Points on Appeal,” in Appellate Practice Manual 95, 101 (Priscilla Anne Schwab ed., 1992) (noting that “[s]urprisingly few lawyers” say “thank you” at the end).
+
+51
+
+E. Barrett Prettyman Jr., Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions, Litig., Winter 1978, at 16, 18.
+
+52
+
+John M. Harlan, What Part Does the Oral Argument Play in the Conduct of an Appeal? , 41 Cornell L.Q. 6, 9 (1955).
+
+53
+
+Ben W. Palmer, Courtroom Strategies 205 (1959).
+
+54
+
+William H. Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 302 (1986).
+
+55
+
+See Robert H. Jackson, Advocacy Before the Supreme Court, 37 ABA J.
+
+801, 862 (1951).
+
+56
+
+The Second Earl of Birkenhead, The Life of F.E. Smith, First Earl of Birkenhead 99 (1959).
+
+57
+
+Id.
+
+58
+
+See Fed. R. App. P.28 (j).
+
+59
+
+See Fed. R. Civ. P.59 (e).
+
+60
+
+See Fed. R. App. P. 40 ; Sup. Ct. R. 44.
+
+61
+
+David Giles & Bruce Brown, Rehearing Motions: The Switch of Minds That Saved the Times, Litig., Winter 1999, at 48, 65.
+
+62
+
+See Fed. R. App. P. 4 (a)(4); Sup. Ct. R. 13(3).
+
+63
+
+See Craig T. Enoch & Michael S. Truesdale, Issues and Petitions: The Impact on Supreme Court Practice, 31 St. Mary’s L.J. 565, 574 n.33 (2000) (putting the rate of success in Texas appellate courts at “below 6%”); Antone E. Turley, Preserving Your Right to Appeal, Nat’l Bus. Inst., 31533
+
+NBI-CLE 118, 181 (2006) (putting the rate in Ohio appellate courts at 2%).
+
+64
+
+Westcot Corp. v. Edo Corp. , 857 F.2d 1387, 1388 (10th Cir. 1988).
+
+65
+
+Bhatnagar v. Surrendra Overseas Ltd. , 52 F.3d 1220, 1231 (3d Cir. 1995).
+
+66
+
+See, e.g. , Fed. R. App. P. 35.
+
+
+
+
+
+Document Outline
+
+
+Title Page
+
+Copyright Page
+
+Epigraph
+
+Dedication
+
+Acknowledgements
+
+Foreword
+
+Introduction
+
+General Principles of Argumentation 1. Be sure that the tribunal has jurisdiction.
+
+2. Know your audience.
+
+3. Know your case.
+
+4. Know your adversary’s case.
+
+5. Pay careful attention to the applicable standard of decision.
+
+6. Never overstate your case. Be scrupulously accurate.
+
+7. If possible, lead with your strongest argument.
+
+8. If you’re the first to argue, make your positive case and then preemptively ...
+
+9. If you’re arguing after your opponent, design the order of positive case and ...
+
+10. Occupy the most defensible terrain.
+
+11. Yield indefensible terrain—ostentatiously.
+
+12. Take pains to select your best arguments. Concentrate your fire.
+
+13. Communicate clearly and concisely.
+
+14. Always start with a statement of the main issue before fully stating the facts.
+
+15. Appeal not just to rules but to justice and common sense.
+
+16. When you must rely on fairness to modify the strict application of the law, ...
+
+17. Understand that reason is paramount with judges and that overt appeal to ...
+
+18. Assume a posture of respectful intellectual equality with the bench.
+
+19. Restrain your emotions. And don’t accuse.
+
+20. Control the semantic playing field.
+
+21. Close powerfully—and say explicitly what you think the court should do.
+
+
+
+
+
+Legal Reasoning 22. Think syllogistically.
+
+23. Know the rules of textual interpretation.
+
+24. In cases controlled by governing legal texts, always begin with the words ...
+
+25. Be prepared to defend your interpretation by resort to legislative history.
+
+26. Master the relative weight of precedents.
+
+27. Try to find an explicit statement of your major premise in governing or ...
+
+
+
+
+
+Briefing 28. Appreciate the objective of a brief.
+
+29. Strengthen your command of written English.
+
+30. Consult the applicable rules of court.
+
+31. Set timelines for the stages of your work.
+
+32. In cooperation with your opponent, prepare the Joint Appendix.
+
+33. Spend plenty of time simply “getting” your arguments.
+
+34. Outline your brief.
+
+35. Sit down and write. Then revise. Then revise again. Finally, revise.
+
+36. Know how to use and arrange the parts of a brief.
+
+37. Advise the court by letter of significant authority arising after you’ve ...
+
+38. Learn how to use, and how to respond to, amicus briefs.
+
+39. Value clarity above all other elements of style.
+
+40. Use captioned section headings.
+
+41. Use paragraphs intelligently; signpost your arguments.
+
+42. To clarify abstract concepts, give examples.
+
+43. Make it interesting.
+
+44. Banish jargon, hackneyed expressions, and needless Latin.
+
+45. Consider using contractions occasionally—or not.
+
+46. Avoid acronyms. Use the parties’ names.
+
+47. Don’t overuse italics; don’t use bold type except in headings; don’t use ...
+
+48. Describe and cite authorities with scrupulous accuracy.
+
+49. Cite authorities sparingly.
+
+50. Quote authorities more sparingly still.
+
+51. Swear off substantive footnotes—or not.
+
+52. Consider putting citations in footnotes—or not.
+
+53. Make the relevant text readily available to the court.
+
+54. Don’t spoil your product with poor typography.
+
+
+
+
+
+Oral Argument 55. Appreciate the importance of oral argument, and know your objectives.
+
+56. Prepare yourself generally as a public speaker.
+
+57. Master the preferred pronunciations of English words, legal terms, and ...
+
+58. Master the use of the pause.
+
+59. Send up the skilled advocate most knowledgeable about the case.
+
+60. Avoid splitting the argument between cocounsel.
+
+61. Prepare assiduously.
+
+62. Learn the record.
+
+63. Learn the cases.
+
+64. Decide which parts of your brief you’ll cover.
+
+65. Be flexible.
+
+66. Be absolutely clear on the theory of your case.
+
+67. Be absolutely clear on the mandate you seek.
+
+68. Organize and index the materials you may need.
+
+69. Conduct moot courts.
+
+70. Watch some arguments.
+
+71. On the eve of argument, check your authorities.
+
+72. Arrive at court plenty early with everything you need.
+
+73. Make a good first impression. Dress appropriately and bear yourself with dignity.
+
+74. Seat only cocounsel at counsel table.
+
+75. Bear in mind that even when you’re not on your feet, you’re onstage and working.
+
+76. Approach the lectern unencumbered; adjust it to your height; stand erect ...
+
+77. Greet the court and, if necessary, introduce yourself.
+
+78. Have your opener down pat.
+
+79. If you’re the appellant, reserve rebuttal time.
+
+80. Decide whether it’s worth giving the facts and history of the case.
+
+81. If you’re the appellant, lead with your strength.
+
+82. If you’re the appellee, take account of what has preceded, clear the ...
+
+83. Avoid detailed discussion of precedents.
+
+84. Focus quickly on crucial text, and tell the court where to find it.
+
+85. Don’t beat a dead horse. Don’t let a dead horse beat you.
+
+86. Stop promptly when you’re out of time.
+
+87. When you have time left, but nothing else useful to say, conclude ...
+
+88. Take account of the special considerations applicable to rebuttal argument.
+
+89. Look the judges in the eye. Connect.
+
+90. Be conversational but not familiar.
+
+91. Use correct courtroom terminology.
+
+92. Never read an argument; never deliver it from memory except the opener and ...
+
+93. Treasure simplicity.
+
+94. Don’t chew your fingernails.
+
+95. Present your argument as truth, not as your opinion.
+
+96. Never speak over a judge.
+
+97. Never ask how much time you have left.
+
+98. Never (or almost never) put any other question to the court.
+
+99. Be cautious about humor.
+
+100. Don’t use visual aids unintelligently.
+
+101. Welcome questions.
+
+102. Listen carefully and, if necessary, ask for clarification.
+
+103. Never postpone an answer.
+
+104. If you don’t know, say so. And never give a categorical answer you’re ...
+
+105. Begin with a “yes” or a “no.”
+
+106. Never praise a question.
+
+107. Willingly answer hypotheticals.
+
+108. After answering, transition back into your argument—smoothly, which means ...
+
+109. Recognize friendly questions.
+
+110. Learn how to handle a difficult judge.
+
+111. Beware invited concessions.
+
+112. Advise the court of significant new authority.
+
+113. If you’re unhappy with the ruling, think about filing a motion for reconsideration.
+
+114. Learn from your mistakes.
+
+115. Plan on developing a reputation for excellence.
+
+
+
+
+
+Sources for Inset Quotations
+
+Recommended Sources
+
+
+
+
+
diff --git a/mcp-server/src/legal_mcp/services/block_writer.py b/mcp-server/src/legal_mcp/services/block_writer.py
index 091973d..611992f 100644
--- a/mcp-server/src/legal_mcp/services/block_writer.py
+++ b/mcp-server/src/legal_mcp/services/block_writer.py
@@ -20,7 +20,7 @@ from uuid import UUID
 
 from legal_mcp import config
 from legal_mcp.services import db, embeddings, claude_session
-from legal_mcp.services.lessons import get_content_checklist
+from legal_mcp.services.lessons import get_content_checklist, get_methodology_summary
 
 logger = logging.getLogger(__name__)
 
@@ -201,30 +201,22 @@ BLOCK_PROMPTS = {
 ## זהו הבלוק הקריטי ביותר — ליבת ההחלטה (ratio decidendi).
 ## אורך נדרש: **2,000-4,000 מילים לפחות**. זהו הבלוק הארוך ביותר בהחלטה (35-50%).
 
-## מתודולוגיה — CREAC:
-1. **C** (Conclusion) — פתח במסקנה: "לאחר שעיינו... מצאנו כי הערר [נדחה/מתקבל]"
-2. **R** (Rule) — הצג את הכלל המשפטי הרלוונטי עם ציטוט פסיקה
-3. **E** (Explanation) — צטט פסיקה שמסבירה את הכלל (200-600 מילים לכל ציטוט)
-4. **A** (Application) — יישם על העובדות הספציפיות של התיק
-5. **C** (Conclusion) — מסקנת ביניים
-
-## כללים קריטיים:
-- **מסקנה בפתיחה** — לא בסוף
-- **מענה פרטני לכל טענה** שהוצגה בבלוק ז — עבור על כל טענה ברשימה והתייחס אליה בנפרד. אל תדלג על שום טענה.
-- **ציטוטי פסיקה** — צטט לפחות 3-5 פסקי דין רלוונטיים. כל ציטוט עם שם התיק המלא.
-- **ללא כפילות** — הפנה לבלוקים קודמים: "כאמור בסעיף X לעיל"
-- **ללא כותרות משנה** (חריג: נושאים נפרדים לחלוטין)
-- מספור רציף
+{methodology_guidance}
 
 {content_checklist}
 
+## כללים נוספים:
+- **ללא כפילות** — הפנה לבלוקים קודמים: "כאמור בסעיף X לעיל"
+- **מספור רציף** — המשך מספור מהבלוק הקודם
+- מותרות כותרות-משנה כשיש נושאים נפרדים לחלוטין
+
 ## כיוון מאושר (חובה):
 {direction_context}
 
 ## מבנה לפי תוצאה:
 {structure_guidance}
 
-## טענות שצריך לענות עליהן (חובה — כל טענה חייבת מענה):
+## טענות:
 {claims_context}
 
 ## חומרי מקור:
@@ -315,12 +307,15 @@ async def write_block(
 
     # Content checklist — tells block-yod WHAT topics to cover
     content_checklist = ""
+    methodology_guidance = ""
     if block_id == "block-yod":
         content_checklist = get_content_checklist(
             appeal_type=case.get("appeal_type", ""),
             subject=case.get("subject", ""),
             subject_categories=case.get("subject_categories", []),
         )
+        # Methodology guidance — tells block-yod HOW to reason (universal, not case-specific)
+        methodology_guidance = get_methodology_summary()
 
     # Format prompt — per Anthropic long-context best practices:
     # Place source documents FIRST (top of prompt), instructions LAST.
@@ -336,6 +331,7 @@ async def write_block(
         discussion_context=discussion_context,
         structure_guidance=structure_guidance,
         content_checklist=content_checklist,
+        methodology_guidance=methodology_guidance,
     )
 
     # Restructure: sources first, then instructions
@@ -431,7 +427,7 @@ async def _build_claims_context(case_id: UUID) -> str:
             lines.append(f"\n### {role_heb.get(current_role, current_role)}")
         claim_num += 1
         lines.append(f"טענה #{claim_num}: {c['claim_text'][:400]}")
-    lines.append(f"\n**סה\"כ {claim_num} טענות — חובה לענות על כל אחת.**")
+    lines.append(f"\n**סה\"כ {claim_num} טענות. ענה על כל טענה מהותית; טענות [bundle] — אגד; טענות [skip] — ציון קצר בלבד.**")
     return "\n".join(lines)
 
 
@@ -662,6 +658,17 @@ async def get_block_context(case_id: UUID, block_id: str, instructions: str = ""
     outcome = (decision or {}).get("outcome", "rejected")
     structure_guidance = STRUCTURE_GUIDANCE.get(outcome, "")
 
+    # Content checklist + methodology for block-yod
+    content_checklist = ""
+    methodology_guidance = ""
+    if block_id == "block-yod":
+        content_checklist = get_content_checklist(
+            appeal_type=case.get("appeal_type", ""),
+            subject=case.get("subject", ""),
+            subject_categories=case.get("subject_categories", []),
+        )
+        methodology_guidance = get_methodology_summary()
+
     formatted_prompt = prompt_template.format(
         case_context=case_context,
         source_context=source_context,
@@ -672,6 +679,8 @@ async def get_block_context(case_id: UUID, block_id: str, instructions: str = ""
         style_context=style_context,
         discussion_context=discussion_context,
         structure_guidance=structure_guidance,
+        content_checklist=content_checklist,
+        methodology_guidance=methodology_guidance,
     )
 
     if instructions:
diff --git a/mcp-server/src/legal_mcp/services/lessons.py b/mcp-server/src/legal_mcp/services/lessons.py
index ee5eafe..0737be9 100644
--- a/mcp-server/src/legal_mcp/services/lessons.py
+++ b/mcp-server/src/legal_mcp/services/lessons.py
@@ -519,3 +519,65 @@ def get_content_checklist(
 
     # Default: substantive licensing
     return CONTENT_CHECKLISTS["licensing_substantive"]
+
+
+# ── Methodology guidance (condensed from decision-methodology.md) ──
+
+_METHODOLOGY_CORE = """## מתודולוגיה אנליטית — עקרונות מנחים לכתיבת הדיון
+
+### מבנה סילוגיסטי לכל סוגיה
+כל סוגיה נבנית כסילוגיזם: (1) הנחה עליונה = הכלל (הוראת תכנית, חוק, הלכה); (2) הנחה תחתונה = העובדות הספציפיות; (3) מסקנה. אם לא ניתן לזהות את הכלל — ההנמקה אינה מספקת. אם לא ניתן לזהות כיצד העובדות מקיימות את הכלל — ההנמקה קריפטית.
+
+### התחל מלשון הטקסט
+כשהמקרה נשלט על ידי הוראת תכנית או סעיף חוק — פתח בציטוט ההוראה. פרש מילים במשמעותן הרגילה. תן תוקף לכל מילה. אם יש עמימות — השתמש בכלי פרשנות.
+
+### הפרד ממצא עובדתי ממסקנה משפטית
+"הבניה במרחק 1.5 מטרים מגבול המגרש" = ממצא עובדתי. "חריגה זו עולה כדי סטייה ניכרת" = מסקנה משפטית. אל תערבב.
+
+### CREAC לכל סוגיה
+1. מסקנה — פתח בתשובה ("הבקשה אינה תואמת...")
+2. כלל — ציטוט ההוראה
+3. הרחבה — תקדים רלוונטי אחד (אם נדרש)
+4. יישום — החלת הכלל על העובדות (לב ההנמקה)
+5. מסקנה חוזרת — סגירה תמציתית
+
+### Steel-Man — הצג טענה בחוזקתה לפני דחייה
+לפני שדוחים טענה — הצג אותה בגרסה החזקה ביותר: "אמנם צודק העורר כי [נקודה לטובתו], אולם [הנימוק לדחייה]." טענת קש קלה להפריך אך לא משכנעת.
+
+### טכניקת סנדוויץ' לציטוטים
+כל ציטוט עטוף: משפט הקדמה (מודיע על התוכן) → ציטוט → ניתוח (מסביר כיצד רלוונטי למקרה). אל תניח שהקורא יקרא ציטוט ארוך ויפיק ממנו מסקנות בעצמו.
+
+### נתונים, לא תיאורים
+"הבקשה חורגת ב-1.5 מטרים מקו הבניין" — לא "הבקשה חורגת באופן משמעותי." מספרים, מידות, אחוזים.
+
+### כנות לגבי קושי
+כשהמקרה קשה — אמור זאת: "הדבר אינו נקי מספקות, אולם..." אל תעמיד פנים שמקרה קשה הוא קל.
+
+### כל מילה עובדת
+"לאחר ששקלנו את כלל השיקולים" — ריק, מחק. מבחן: אם מוחקים את המשפט וההחלטה לא מאבדת מידע — המשפט מיותר.
+
+### איזון ומידתיות (כשהכלל לא נותן תשובה חד-משמעית)
+כשנדרש איזון:
+1. זהה אינטרסים קונקרטיים (לא "אינטרס הציבור" אלא "שמירה על אופי מגורים צמודי קרקע")
+2. בחן השלכות לכל כיוון: מה קורה אם מקבלים? אם דוחים?
+3. שקול השלכות מערכתיות: מה הסיגנל שנשלח למערכת?
+4. ציין מה מכריע את הכף ולמה
+כשמטילים מגבלה/תנאי — מבחן מידתיות: (1) תכלית ראויה?; (2) אמצעי פוגע פחות?; (3) פגיעה מידתית ביחס לתועלת?
+
+### טיפול בטענות
+- ההחלטה מנתחת שאלות — לא מתווכחת עם עו"ד. מבנה: שאלה→כלל→עובדות→מסקנה
+- טענות שסומנו [bundle] ב-chair_directions: קבץ ודון יחד
+- טענות שסומנו [skip] ב-chair_directions: ציון קצר בלבד
+- טענות ללא סימון: ענה בנפרד עם מענה מנומק
+- טענה מרכזית של הצד המפסיד חייבת מענה Steel-Man
+- מיקום ההתמודדות עם טענות נגדיות: באמצע הדיון בסוגיה (לא בהתחלה ולא בסוף)
+"""
+
+def get_methodology_summary() -> str:
+    """Return the condensed methodology guidance — always the same, always complete.
+
+    The methodology is universal: it teaches HOW to think, not WHAT to discuss.
+    Case-specific content (parking, building lines, significant deviation) belongs
+    in the content checklists, not here.
+    """
+    return _METHODOLOGY_CORE
diff --git a/skills/decision/SKILL.md b/skills/decision/SKILL.md
index 63964f6..5566284 100644
--- a/skills/decision/SKILL.md
+++ b/skills/decision/SKILL.md
@@ -203,6 +203,9 @@ description: This skill should be used when writing legal decisions (החלטו
 
 ## 6. השיטה האנליטית - "איך לחשוב" לפני "איך לכתוב"
 
+> **מסמך המתודולוגיה המלא:** [`docs/decision-methodology.md`](../../docs/decision-methodology.md)
+> מסמך זה עוסק בטכניקות הכתיבה של דפנה. לתאוריית ההחלטה הכללית — מבנה סילוגיסטי, איזון, steel-man, טכניקת סנדוויץ', הפרדת ממצאים ממסקנות — ראה את מסמך המתודולוגיה.
+
 ### 6.1 שומר הסף - שאלת הסף
 
 לפני שנוגעים בטענה לגופה, השאלה הראשונה היא: "יש לעוררים בכלל זכות ערר?" זו לא רק שאלה פרוצדורלית - זו מסגרת הניתוח כולה. **סייג חשוב:** שאלת הסף היא כלי אסטרטגי, לא חובה. בתיקים עם שאלות מהותיות חזקות (חניה, שימור, קווי בניין), דפנה עשויה לדלג על שאלת הסף ולדון ישירות בגוף העניין — במיוחד בקבלה חלקית. ראה: בית הכרם 1126/25 — דילגה על ס' 152 לחלוטין.