Author:Berger, Benjamin L.
Position:In Making the Case: The Art of the Judicial Opinion - Book review

This is a book about persuasion. In Making the Case: The Art of the Judicial Opinion, (1) Paul Kahn draws the judicial opinion into the centre of our field of vision and invites us to join him in inquiring into the role that it plays shaping our legal and political communities, and in seeking to understand how it does its work. Ultimately, he shows that persuasion is at the heart of the judicial opinion and, with that, at the heart of the rule of law.

The persuasion at stake in Kahn's book is not, however, what you might expect. Central to this insightful, creative study is the idea that the burden faced by the judge is not--or not chiefly--to persuade the parties that the court has reached the correct outcome; it is, rather, to persuade us all that the law is our own. The judicial opinion is "a form of rhetorical address performing the broadly political task of maintaining belief in self-government through law." (2) It is, in other words, a persuasive act aimed at sustaining belief in a particular kind of political community. Making the Case explains the character of this persuasive task and the rhetorical techniques and devices available in pursuing it. Kahn offers a schematic of the location and inner workings of the judicial opinion within the imaginative architecture of our political beliefs. Seeing that picture, we are equipped to be better readers (and, in the case of judges, also better writers) of the judicial opinion.

Kahn has established himself as a preeminent guide to the shape and structure of our modern political and legal imaginations. The diversity amongst his books--ranging from in-depth studies of U.S. constitutional moments to reexaminations of classic philosophical texts, exercises in biblical interpretation, and studies of modern liberalism (3)--belies the tight unity of his concern. Across his work, Kahn is interested in the genealogy and architecture of the beliefs and practices that sustain our political lives, lives in which the culture of law's rule plays a central role. Like Geertz and Weber, he is interested in the "webs of significance" (4) in which we are suspended and through which we make sense of our experiences.

We can find that web of meanings at work in any of our cultural artefacts--the sense that we make of our lives is not episodic or domain-specific. And so, in Finding Ourselves at the Movies, Kahn examines the modern movie as a particular text in which to find and explore questions of law, love, and sacrifice, and how they work within our political imaginations. He shows in that book that the movie is successful to the extent that it participates effectively in the narratives that structure how we understand ourselves and our communities. In Making the Case Kahn turns his attention to a different cultural artefact, this one central to the world of the law: the judicial opinion. The text is different but the project is very similar.

In Making the Case, Kahn seeks to understand the judicial opinion as a rhetorical act that succeeds to the extent that it "persuades us to see the situation in light of one of the broad narrative accounts by which we regularly give order to our social and political life." (6) As he puts it, "the rule of law is a way of seeing and maintaining our common social world"; (7) that burden of depiction and maintenance, Kahn argues, falls to the judicial opinion, and so we must understand better what precisely it seeks to do and how it works.

This is where Making the Case begins: with a desire to read the judicial opinion more sensitively and to understand better how it does its work as a persuasive text. In this, Kahn sees himself as recovering the "original promise of the casebook method" (8)--immersing the reader in the interplay of fact and law in order to see how an opinion seeks to persuade. Kahn intends the audience of Making the Case to be, in part, students coming to the law for the first time, seeking to learn how to read a judicial opinion. And to be sure, talented students will gather a great deal from this book. But Kahn also notes the tradition of academic writing on law "in which an introductory work is no less a serious work on law" (9) and Making the Case is certainly that. The audience for this book is, in fact, complex. It is illuminating and important reading for lawyers, whom Kahn describes as the key audience of the judicial opinion; for law teachers interested in legal pedagogy; for judges who seek to better understand their judicial role and the "art of the judicial opinion"; and for scholars interested in political and legal theory. The book provokes ideas about legal pedagogy, could serve as something of a manual for successful opinion-writing, and makes serious and fresh interventions into fundamental questions of political philosophy. The breadth of the audience to which this text successfully appeals is one of its achievements.

Following a useful preface directed at students "with a Note to Everyone Else," Kahn embarks on his project of drawing out the nature, burdens, and resources of the judicial opinion. The richness of this small book rewards careful reading but precludes an exhaustive account of Kahn's argument and insights. Rather than attempting such an account, I focus in the balance of this review on what I take to be the core conceptual contribution of Kahn's account of the judicial opinion: the link between narrative, persuasion, and self-government.

The decisive methodological move in Making the Case is Kahn's approach to the judicial opinion as a unique literary genre. In Chapter 1, he circumscribes his subject in a way that creates space for this distinctive and profitable framing of the opinion. He distinguishes the judicial opinion from other legal texts like statutes and regulations by observing that it seeks to persuade, not solely to command: "Only here," Kahn explains, "does law link command to explanation." (10) His interest is thus not in the court's judgment but rather in the judicial opinion, which is an explanatory, rhetorical exercise; (11) in his ternis, what matters in the opinion is not principally "vote" but "voice."

Yet he also makes distance on approaches that would understand the opinion chiefly as an artefact of dispute resolution, aimed at convincing the losing party.

Central to this book is the idea that every judicial opinion--quite irrespective of the topic of law that it treats--is fundamentally public in character, in that it is not only the parties who are owed an explanation, but rather "we all are, for the opinion is a public act setting forth the meaning of law for everyone." (12) "An appellate court opinion explains the law to those who are to live under it." (13) The formulation "arc to" in this sentence is key. That we will live under the law is not to be taken for granted in the judicial opinion, such that Kahn could write simply that the opinion explains the law "to those who live under it"; there is a task to complete in each judicial opinion, a burden that must be discharged through the text if the future of living under the law (in the way that...

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