Dane on Law Clerks: A Jurisprudential Lens @perrydane

Perry Dane, Rutgers, the State University of New Jersey, Rutgers Law School, is publishing Law Clerks: A Jurisprudential Lens in the George Washington Law Review Arguendo, Forthcoming. Here is the abstract.

American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial. This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff? The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices? The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge. This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.

Download the article from SSRN at the link.

Adam Feldman on Merits Briefs and Supreme Court Opinions

Adam Feldman, University of Southern California, Department of Political Science, has published A Brief Assessment of Supreme Court Opinion Language. Here is the abstract.

Supreme Court merits briefs are often the justices and clerks' primary resources for constructing opinions. Using linguistic analysis software, this paper compares nearly 9,500 merits briefs between 1946 and 2013 with their respective opinions to examine what leads the justices to incorporate varying amounts of language from the briefs in their opinions. The paper finds that the basic sources are the receptivity of the justice, the influence of the brief-writer, and the type of case.

Download the article from SSRN at the link.

Robert Ferguson's New Book: Practice Extended

Robert Ferguson, Professor of Law, Columbia University, is publishing Practice Extended: Beyond Law and Literature (Columbia University Press, 2016). Here is a description of the book's contents from the publisher's website.

Practice Extended helps general readers navigate the intricacies of legal language and thought, strengthening their grasp on law's relationship to society and culture. The book details how judicial opinions are written, how legal thought and philosophy inform ideas, and how best to appreciate a courtroom novel. With chapters on immigration, eloquence, the Constitution, Ulysses, and mercy, Practice Extended is a far-ranging work on the importance of language in law and the interrelation of law and literature.

HT to Simon Stern @ArsScripta

Brief Writing and the Use of Language In U.S. Supreme Court Opinions

Adam Feldman, University of Southern California,  Department of Political Science, has published Blurred Lines: Merits Briefs as Templates for Supreme Court Opinions. Here is the abstract.

Supreme Court opinion language is predominately derivative. It comes from a variety of sources including briefs, past opinions, and lower court transcripts. This derivative language use, especially without attribution, has been described in ways ranging from common practice to plagiarism. This paper focuses on opinions using high levels of generally unattributed language derived from merits briefs.

This paper identifies a case type where opinions rely heavily on briefs and compares the language in the briefs and opinions in this set of cases. It also identifies the justices associated with this high language of language borrowing and finds that Justice Blackmun was especially disposed to this practice. While not presumptively staking a normative claim about the relationship between merits briefs and opinions in these cases, this paper is designed to catalyze the discussion regarding expectations, if any, for judicial citations and for the use of original language in Supreme Court opinions.

Download the article from SSRN at the link.

Queen Anne, Justice Scalia, and Originalism

Harold Anthony Lloyd, Wake Forest University School of Law, has published Justice Scalia and Queen Anne in the Huffington Post, July 9, 2015. Here is the abstract.

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect.

Read the article at the link, or download it from SSRN here.

U.S. Judges and Islam, 1800-1960

Marie A. Failinger, Hamline University School of Law, is publishing Islam in the Mind of American Courts: 1800-1960, in the Boston College Third World Law Journal. Here is the abstract.

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve.

Download the article from SSRN at the link.

Bob Dylan In Legal Opinions

Alex B. Long, University of Tennessee College of Law, has published The Freewheelin' Judiciary: A Bob Dylan Anthology. Here is the abstract.

This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.

Download the paper from SSRN at the link. NB: Bob Dylan's 70th birthday is May 24th.

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.

Download the paper from SSRN at the link.