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Wednesday, June 15, 2005

On Judges, Presidents, and Milli Vanilli

A new paper on SSRN by Stephen Choi and Mitu Gulati, Which Judges Write Their Opinions (and Should We Care)?, examines the extent to which law clerks write judge’s opinions.  From the abstract:

Common wisdom holds that many federal judges do not write their own opinions. While their degree of input into opinion writing varies, almost all rely to some extent on law clerks, typically recent law school graduates, to research and draft substantial sections of the opinion. Why should we care which judges write their opinions? We posit that determining the actual input of federal judges into the authorship of opinions provides useful information in a number of contexts, including judicial promotion decisions, the allocation of scarce judicial resources, and the judicial clerkship market for law students. . . .

This paper looks quite interesting.  It is certainly true that many judicial clerks do a substantial amount of opinion writing, but I think that we should also turn the microscope on presidents, who often are even less the author of their words and policies than judges. 

We have come to expect that presidents don’t write their speeches or make many of their own policy decisions.  Presidents have an elaborate crew of marketers, a team of strategists, a group of policy experts, a number of speech writers, and so on.   Perhaps only Britney Spears and most boy bands have a more sophisticated team behind them pulling the strings.  So we play along with this charade when we know that the president is often just reading from a script like an actor.

Millivanilli1 This all reminds me of the pop group Milli Vanilli.  Consider this bio from MTV’s website:

Milli Vanilli. The mere mention of the name still calls up the same derision it did when the dance-pop duo's career came to a sudden and ignominious end: Fakers. Frauds. A blatant marketing scam. Their story has been retold countless times: after selling millions of records, Rob Pilatus and Fabrice Morvan were revealed to be models who publicly lip-synced to tracks recorded by anonymous studio vocalists. They became the first act ever stripped of a Grammy award and came to symbolize everything people disliked about dance-pop. . . . Whether that assessment was fair or not, it was beyond easy to hold Milli Vanilli in contempt.

What’s so different between Milli Vanilli and the President of the United States? In some respects, not very much. 

Posted by Daniel Solove on June 15, 2005 at 03:01 AM in Constitutional thoughts, Daniel Solove, Law and Politics | Permalink


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If Milli Vanilli were to sing without back-up, they would look like idiots. If Bush were to speak without advisors, WE AMERICANS would be the ones looking like the idiots.

Posted by: Marshall R. Isaacs | Jun 25, 2005 7:56:39 PM

Fwiw (probably not much), I have a few paragraphs on Milli Vanilli and political parallels in my Trademark Function of Authorship piece.


It's mostly about trademark and copyright and such, though, not clerking.

Posted by: greglas | Jun 15, 2005 8:33:47 PM

I think that the intended analogy may well hold up. Every branch of government, and most private industry, works with a support staff. Thank the Prussians for that. Evaluation of who is chosen as support staff reflects on the primary in some way ... the importance of that reflection varying with person to person. When we look at law clerks and the fact that they will draft something that will not have thier name on it we must not forget that they may be drafting an opinion or order that is 180 degrees from their personal take on the case or controversy. Then again, the myth of the judge writing every word is an important part of the judicial structure as we see it. The West Wing put a face and importance on WW staffers that many people did not recognize before that, but it is easier to do that with the executive branch. Law Clerks, IMHO, are less like Milli Vanilli and more like Set Designer or Costume Designer working under the Technical Director of a play. The TD is going to call the shots for the Director (in my analogy, the court qua court) and while set design may make suggestions about how to go about doing it, the TD has the final say. Hierarchical collaberative process.

Posted by: Joel | Jun 15, 2005 1:03:28 PM

Given how much time it takes to blog, perhaps I'll hire a staff to write my posts for me.

Posted by: Daniel Solove | Jun 15, 2005 12:30:03 PM


You just need to say:

"This is the real Dan Solove. My law clerk assistant wrote this post and put it up without my permission. All errors should be blamed on her. Thank you."

Posted by: Kaimi | Jun 15, 2005 11:46:21 AM

Well, I guess this is what happens when I post outside my areas of expertise. My primary goal was to show that law clerks writing judicial opinions is not much different from how virtually all branches of government function. And I do think it is interesting that in some contexts, we have strong norms that the person saying or writing something should be the genuine author of it whereas in other contexts, we don't. The post was more a half-baked thought about how we think about authorship, and it didn't come across that well. These authorship norms strike me as interesting. I'm not lamenting the fact that the president or other policymakers don't author their own words. I'm more interested in how people view authorship in general and why, in different contexts, attitudes toward it seem so different. Anyway, when you blog a lot, you're entitled to a few duds every now and then.

Posted by: Daniel Solove | Jun 15, 2005 11:42:25 AM

I comment further only to add that it's not even clear that "Law profs may not study it much." See, e.g., Gary Lawson "The Rise and Rise of the Administrative State," 107 Harvard Law Review 1231; Cass Sunstein, "The Myth of the Unitary Executive" 7 Admin. L.J. Am. U. 299; Steven Calabresi, "Some Normative Arguments for the Unitary Executive", 48 Ark L. Rev. 23; Lawrence Lessig, "Readings by our Unitary Execituve", 15 Cardozo L Rev 175; Frank H. Easterbrook, "Unitary Executive Interpretation: A Comment", 15 Cardozo L Rev 313. And so on.

Posted by: Will Baude | Jun 15, 2005 11:14:40 AM

I agree. There is an incredible amount of political science and history literature scrutinizing the modern presidency. Law profs may not study it much, but other academics do. And I imagine that the general population mulls about the question more than they do about the role of SCOTUS clerks.

Posted by: Jeff V. | Jun 15, 2005 10:45:45 AM

Is there any real indication that "we" *don't* think about the administrative structure of the presidency and the executive branch, or about the fact that the office of the president has a massive support staff that can take over the show if its allowed to?

Between the massive literature on the rise of the administrative state and the constitutional requirement (or not) of the unitary executive, as well as The West Wing's focus on staff work in the executive branch, I find this incredibly hard to believe.

Posted by: Will Baude | Jun 15, 2005 10:24:34 AM

The post is partly tongue-in-cheek, and of course it doesn't apply equally to all presidents. The analogy is far from perfect and only loosely works. And I don't question the need for experts and speechwriters for presidents -- indeed, it's hard to imagine how presidents can function without them. The post is pointing out that while we give a ton of attention to judicial clerks writing judge's opinions, we give little thought to the fact that much of what the president does is not written or planned by him. We elect the president as if we're really electing a person, but in fact we're electing a team (almost a mini-corporation). Some presidents run it like a CEO; but others -- and I won't name names -- seem more like a spokesperson.

I just find it interesting that, whether it be a judge or a politician or a president, all today need extensive support, and the words they say and policies they make are often written by others. I haven't thought of whether there are any worthwhile implications that can be drawn from these developments -- that's why I just threw out the thought. The post is designed to point out how we've accepted this reality without thinking about it very much (except in the case of judges, where law profs mull over it). And the Milli Vanilli reference is meant to provoke a bit. There is a critical difference in that Milli Vanilli was hired by the band, so the two actors weren't really in charge. The case of the president is more akin to the actors hiring the band and singer. But the imperfections of this analogy aside, it's ironic that people get so incensed when a pop group doesn't sing their own music but don't seem to give a thought to the fact that those running the country are doing the same thing.

Posted by: Daniel Solove | Jun 15, 2005 9:31:45 AM

Is this a serious post?

No one doubts that Presidents have legions of experts to help them with their jobs. In most instances, these workers all support the President by taking much of the routine work of the presidency -- writing speeches, organizing events, negotiating with other politicians, etc. -- enabling him to focus on what he cares about most, which is usually the task of coming up with and directing a grand political strategy to achieve his most important objectives. Even when supporting staff do much of that work, they often do it with the mindset of trying to do their job as the president would have done it. Speechwriters, for example, often try to craft speeches that their particular President would have written themselves, even though they add their own improvements. These workers are necessary; as de facto leader of the world, the President has an enormous job and needs a ton of supportive workers.

I think your analysis does have a grain of truth with regards to the Reagan administration, though. But I think that was the exception more than the rule. And I also think that liberals tend to underestimate the degree to which Reagan could stubbornly push his policies against the will of advisors in the rare instances in which he felt it necessary to get heavily involved in policy decisions.

Posted by: Jeff V. | Jun 15, 2005 4:24:10 AM

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