Judicial Verbosity – It’s Not Easy Being Green

paper-millAn article, “Conciseness in Legal Writing,” by my colleague Lisa Hatlen in the June 2009 issue of Wisconsin Lawyer [at 21] got me thinking.  My conclusion: I am surprised that “green” organizations do not picket at various appellate courthouses in this country, especially in Madison, Wisconsin.  A lot of trees are paying a price for judicial verbosity.

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.] 

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The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at the hearings. Does Judge Sotomayor believe the Supreme Court should be able to cite international and foreign law in its decisions? Let’s be frank: considering some of the esoteric sources cited in many Supreme Court opinions, why would anyone spend more than a moment on what sources the Court will refer to? Yet, this issue has become a focus of significant debate.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

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Randomness, Rules, and Reason

Binary Code 1 (bw)Michael’s post below had an intriguing overlap with the tail end of my post from yesterday: to what extent does randomness undermine meaning? Michael was writing about a provocative proposal by Bernard Harcourt in a discussion he contributed to; Harcourt proposes making more aspects of criminal procedure explicitly random. Harcourt’s basic idea seems to be that the goal of completely rational punishment is a lost cause, and that therefore the criminal justice system should openly embrace randomness. As several of the commenters on Harcourt’s proposal suggest, however, even the attempt to justify punishment may serve some goals. Or as Michael himself puts it: “Randomization . . . would radically undermine the social meaningfulness of the sentencing process.” A random sentence is a sentence without meaning.

This seemed very similar to an issue in copyright law that I touched on at the end of my very long post yesterday. One of the troubling aspects of many photograph copyright cases is the amount of randomness that often enters into photographs and videos. Copyright protects the expression of ideas. To qualify as expression, the material has to convey some idea or purpose to its audience; it has to mean. Randomness, however, seems to undermine meaning. Mannie Garcia unintentionally expressed the tension nicely when he described how he captured his now-famous photograph of Obama: “And then it happened: Boom, I was there, I was ready.” To the extent the “boom” outweighs the “I was ready,” it also seems to outweigh meaning. Abraham Zapruder did not intend to convey any message at all about the Kennedy assassination; he was simply there recording when it happened.

There may be another parallel between copyright and sentencing. There are recent copyright decisions expressing the view that an author can go too far in the other direction. To the extent that a set of data is rigidly determined, not by randomness, but by a set of rules or external constraints, courts have held that such data fails to “mean” as well, and again is not copyrightable. This would appear to mirror the recent turn in the constitutionality of sentencing. Random sentences are bad; but so are sentences in which all discretion is removed from the sentencing judge. The Supreme Court has never put it this way, to my limited knowledge, but the intuition might be that such sentences also fail to mean anything; they are not expressions of society’s determination of the seriousness of that particular offense. Meaning, like perhaps all of life, appears to lie in the border between order and chaos.

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