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Tuesday, November 25, 2008

Framing Arguments, an Update, and Good Bye

The time has come for me to bring my guest stint to a close.  Before I sign off completely, I want first to note that I've posted an updated, and incrementally more complete, version of my Judicial Process Course Materials here.  The new version includes sections on judicial ethics, as well and federal and state judicial selection.  I'm well aware that I've got a lot of work to do, and continue to welcome comments.

Finally, I want to close with one last judicial process-related thought.  Most lawyers who have done appellate work have had the experience of getting from the court an opinion that seems to resolve a different case.  Sometimes a court will overlook an issue completely. Other times it will merely omit reference to certain facts or authorities that, in the eyes of at least one of the parties, are of critical importance.  These are but a few variations of what I have referred to more generally as "judicial inactivism."

A few years back I offered up a partial solution.  What if, I asked, we gave the parties a little space of their own in opinions? In particular, what if we required opinions to include "framing arguments" - essentially, party-generated statements of the issues before the court?  It wouldn't preclude courts from engaging in inactivism.  But it might make them less likely to do so, both because it would underscore for judges the importance of being responsive to the parties and because it would make it easier for the public to monitor judicial behavior.  It might even encourage lawyers to put a little more care into formulating their appeals.  (The full paper is here for anyone interested in learning more.)

I wouldn't mention it if I didn't still think it's a good idea.  It's hardly perfect, but on balance it seems to me worth trying.

Posted by Chad Oldfather on November 25, 2008 at 06:08 PM | Permalink


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Your proposal reminds me of the "old days" when the court reporter would summarize the arguments made by the parties and then the Court's opinion would only give analysis. I confess I find it better in the current system: If a court misrepresents the facts or arguments to justify ruling a particular way, at least the case doesn't have the precedential value that it otherwise would.

Posted by: Orin Kerr | Nov 26, 2008 1:02:38 AM

You're right about the parallel to the "old days," Orin, which I address more in the article (and, as I think about it, should have mentioned in the initial post). As to your second point, I don't disagree with the conclusion that there are cases in which courts should have the ability to decline to make precedent even outside the constraints of the routine case in which "unpublished" opinions are authorized. What makes me nervous is the lack of transparency.

Posted by: Chad Oldfather | Nov 26, 2008 8:40:32 AM


I agree that the lack of transparency can be troubling. On the other hand, it strikes me as just one cost in a system that can't be perfect, given the limits of the human enterprise. Also, I tend to think that judicial opinions are among the most transparent decisions made in a government; I don't know how much more transparent the decisions can likely get.

I wonder if technology isn't helping, too. Consider the more high profile cases in the Internet era, in which oral arguments, briefs, and the opinions themselves are readily available for all to see: A judge who fudges the arguments or facts in a high profile case can be called out on it in the blogosphere, which adds some pressure towards transparency (a lot more than there used to be, I would think). Anyway, interesting issues.

Posted by: Orin Kerr | Nov 26, 2008 11:20:56 AM

I think we mostly agree, Orin, and our differences are probably a function of our preferences regarding the appropriate mix of judicial independence and accountability. My sense is that a lot of the institutional features that historically provided accountability - best captured by Karl Llewellyn - have been considerably weakened over the past half-century or so. As a result, I find mechanisms for enhancing judicial accountability in appropriate ways appealing. Framing arguments strike me as a way to provide incrementally greater accountability without too many negatives. (I think we also differ in that I tend to think in terms of the low profile cases - which is probably an artifact of the appellate public defender portion of my career.)

In any case, thanks for your characteristically thoughtful comments.

Posted by: Chad Oldfather | Nov 26, 2008 10:27:19 PM

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