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Lawyering and the Craft of Judicial Opinion Writing

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Despite the importance of judicial opinion writing to the various constituencies that wait upon the words of judges, very little comprehensive study of this craft occures in law school or practice. This conversation with a distinguished member of the High Court, an acclaimed legal scholar turned appellate judge, and two prominent law teachers, both of whom have represented the United States and private clients, is a unique opportunity to rectify this oversight.

Lawyers, of course, want to win cases, but they also care deeply about the rule of law. Judicial opinions that are sound in resaoning enhance professional predictability and strengthen the ability of counsel to give reliable advice. Were this otherwise, sophisticated clients might well lose patience with the law and find ways to avoid legal consultation. Lawyers also know there are standards of excellence in legal reasoning and as officers of the bar seek to maintain the law's coherence, which again, is principally advanced or impeded in opinion writing. Come be part of this important and fascinating conversation which seeks to better understand how the Court is perceived by its writing, and will specifically explore questions related to:

  • What is the primary function of an opinon? (Explanation, justification, rule, result)
  • Who is the intended audience? The parties? The media? The political branches? Administrative agencies? How closely does the court follow the understanding of opinions by these audiences?
  • Recognizing the duty of fidelity to law; when, if ever, should the court be concerned about the extent to which the exposition in opinions worsens cultural conflict?
  • The chief justice has likened judges to umpires, but other judges deny this characterization, insisting that judges must focus on consequences or underlying philosophy. Who is right?
  • Does public confidence in the court depend primarily upon the quality of reasoning in opinions or other factors?
  • In opinion writing, how serious is the appearance or reality of activism? Is it legitimate to use foreign sources?
  • What tools are available to the judge to convey neutrality and empathy both of which have been identified with judicial legitimacy?
  • How should scholars and the practicing bar help the bench in bolstering respect for judicial outcome? What criticism of opinions is warrented, what not?
    • Is it important for opinions to reflect the views of popular majorities?
    • Which opinions are exemplars, and why? Should there be a page limit?
    • What are the particular challenges of committee or collegial writing?
    • Should there be a presumption against dissent and separate concurrence?
    • Could opinions be improved by a more uniform briefing by the parties?
  • How important is the leadership of the court in conveying a sense of collegiality and a sense of commitment to the overall institutional well-being and identity of the court?