LESS IS MORE: ONE LAW CLERK'S CASE AGAINST LENGTHY JUDICIAL OPINIONS.

AuthorBurton, Luke

French polymath Blaise Pascal is reputed to have apologized once for writing a letter he thought was too long, explaining to the letter's recipient that he did not have time to write a shorter one. We chuckle at Pascal's apology because it highlights our tendency to think that the length of a writing correlates to the amount of time and effort expended to create it. We thus tend to presume that longer writings are better writings. Judging by the length of today's judicial opinions, it appears that some judges and their law clerks likewise treat quantity as a proxy for quality. A forty-page opinion, it seems, must be better considered than a seven-page opinion, right? Contrary to what I suppose to be the conventional wisdom, I suggest the answer is no, all things being equal. My hope here is to convince you to reach the same conclusion.

I begin with an observation: judicial opinions are getting longer. I've noticed it when I research case law and when I review proposed opinions. Perhaps you've noticed it too. I decline here to support my observation with authority; I take it as given. I'm sure a simple Google search could provide the interested reader authority for this observation. But if you doubt it, I hope you will at least concede that judicial opinions as a whole, whether growing or shrinking, are generally longer than they should be.

There are probably several reasons for this growth. Word-processing programs make it easy to write and move words without much cost. Online research data-bases make it easy to find springs of legal authorities and commentaries that encourage discussion. Many judges, especially in the federal system, employ droves of law clerks who help write opinions. Many of these law clerks are fresh out of law school and fall into two camps, though they are not mutually exclusive. The first camp is eager to make a personal impression on the law, and one way to do so is to draft opinions that invite as many citations as possible. And what better way to invite citation than to insert several banal statements of law and quotations from earlier opinions, even when those statements of law are not at issue or when the precise wording of those legal points is unimportant. The second camp is rife with diffidence. The best way to hide a lack of confidence in one's own voice is to drown the opinion in quotations and other markers of scholarship, mimicking the long-winded opinions so prevalent today. I do not mean to pummel law clerks for these inclinations; I merely point out that these tendencies contribute to the mushrooming of opinions.

Judicial opinions thus tend to be more bureaucratic and robotic and less conversational and personal. More and more it seems judges and their clerks write opinions to resemble law review articles, perhaps out of the belief...

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