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Tuesday, February 13, 2007

What are your votes on the Best Legal Writing of 2006?

I just received an email from the Green Bag/GMU Law's communications office with an interesting announcement of the 2006 honorees for Exemplary Legal Writing. "The awards, now in their second year, are selected by the journal’s esteemed board of advisers, which includes members of the state and federal judiciary, the news media, private law firms and academia.  The honored works will be republished in the forthcoming Green Bag Almanac & Reader 2007."

Chief Justice John G. Roberts was recognized for his opinion in Rumsfeld v. FAIR.  Also honored is Judge Richard Posner, Chief Judge of the New York State Court of Appeals Judith Kaye, former Solicitor General Seth Waxman, and Yale Law School Dean Harold Koh.  In total, 24 works were recognized in six categories: judicial opinions, books, short articles, long articles, briefs and motions, and miscellany.  A list of the honorees is posted after the jump.

Green Bag Exemplary Legal Writing 2006 Honorees

Judicial Opinions

Jay S. Bybee, Amalgamated Transit Union v. Laidlaw Transit Servs., 448 F.3d 1092 (9th Cir. 2006)
Alex Kozinski, Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006)
Richard Posner, Cecaj v. Gonzales, 440 F.3d 897 (7th Cir. 2006)
John G. Roberts, Jr., Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006)
Ronald A. White, Green v. Bd. Of Comm’rs, 450 F. Supp.2d 1273 (E.D. Okla. 2006)
William G. Young, U.S. v. Kandirakis, 441 F.Supp.2d 282 (D. Mass. 2006)

Books

Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshal and the Rise of Presidential Democracy (Belknap 2005)

Jack Goldsmith & Tim Wu, Who Controls the Internet: Illusions of a Borderless World (Oxford 2006)

Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (Pantheon 2006; Chatto & Windus 2005)

Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield 2006)

Short Articles

Adam Liptak, Supreme Court Smackdown!, N.Y. Times, March 12, 2006
Duncan MacDonald, The Story of a Famous Promissory Note, 10 Scribes J.L. Writing 79 (2006)
Jeffrey Rosen, Judicial Exposure, N.Y. Times, Jan. 29, 2006
Jonathan M. Starble, Gimme an ‘S’: The High Court’s Grammatical Divide, Legal Times, Oct. 9, 2006
Stuart Taylor, Jr., Something’s Rotten at Duke, Nat’l. J., May 29, 2006
Diane P. Wood, Original Intent versus Evolution: The Legal-Writing Edition, The Scrivener, Summer 2005

Long Articles

Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 Indiana L.J. 1145 (2006)
Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006)
J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 Stan. L. Rev. 1969 (2006)

Briefs and Motions

Aaron M. Panner et al., Amicus Brief in Hamdan v. Rumsfeld
Seth P. Waxman et. al., Amicus Brief in Smith v. Texas

Miscellany
Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, Restyled Federal Rules of Civil Procedure

Judith S. Kaye, The Best Oral Argument I (N)ever Made, 7 J. App. Prac. & Process 191 (2005)

Mark L. Movsesian, Samuel Williston: Brief Life of a Resilient Legal Scholar, Harv. Mag. (Jan-Feb. 2006)

Initially, I thought this list reflected a predictable GMU center-right bias (e.g., Roberts, Posner, Bybee, Kozinski). Then I saw it also included Judge Young's great Kandirakis opinion, which is a rousing defense of a defendant's constitutional rights -- and which I'm partial to on other grounds. But then I remembered Judge Young is a Reagan appointee also. Scrolling down I was pleased to see the center-left appear in some of the other categories; I was also excited to see a brief in Hamdan by a former boss of mine (the infinitely shrewd Aaron Panner). Anyway, I'll be sure to track down some of these suggestions.

Thanks to the good folks at Green Bag for paying attention to good writing. I suspect next year we'll begin to see some blog posts mentioned, perhaps, under the Miscellany category. In any event, what omissions do you think the Green Bag folks made?

Posted by Dan Markel on February 13, 2007 at 12:49 AM in Deliberation and voices | Permalink

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others raise the ole eyebrow

Posted by: some of these are good | Feb 12, 2007 7:04:01 PM

One thing is clear - the Green Bag likes male writers better than female writers - 2 out of 24??

Posted by: aj | Feb 13, 2007 9:39:21 AM

Re: Jespersen -- I haven't checked the cite but I assume this is a reference to J. Kozinski's dissent from the en banc opinion.

The dissent was clearly correct in my view with respect to outcome, and I liked the last half (or so), but did anyone else find the part about his toe-tapping while waiting for women to "put on their face" to be patronizing and demeaning? I thought that playing into such a cliche really sort of belittled the subject matter, making it seem like a joke, when the whole second half of his opinion actually seemed to be making the point that it is nothing of the sort.

Also, the if-I-had-to-put-on-makeup-I'd-feel-so-demeaned-and-embarrassed line of argument is a little troubling in that it makes women who wear makeup sound like such victims. Does J. Kozinski feel sorry for all the women who appear before him wearing makeup? Do they seem pathetic to him?

I think the way to go here would have been to say, more simply and with less joke-y editorializing:
1) There can be no doubt that putting on makeup takes time and costs money;
2) Therefore, a makeup requirement imposed only on women is a disparate burden in terms of time and money;
3) Further, given that certain burdensome female grooming standards have historically been consistent with - or, at least, associated with - a passive, home-bound feminine ideal, it is easy to understand why some women might see makeup as part of a socially imposed ideal that is offensive to their view of themselves in the world; and
4) Therefore, Jespersen's declaration to this effect should not have been dismissed so lightly by the majority.

The selection of this opinion may be related to aj's point about the apparent preference for male v. female writers.

Posted by: anon | Feb 13, 2007 6:41:55 PM

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