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Monday, May 12, 2008

Quality Judicial Writing?

Justice Scalia's new book, "Making Your Case:  The Art of Persuading Judges" -- co-authored with Bryan Garner – offers suggestions for written and oral advocacy.  While Scalia and Garner agree on many topics, an interview in the ABA Journal reports that they disagree on a few matters related to effective legal writing, such as the value (or lack thereof) of substantive footnotes, the appropriate use of contractions, and the decision to place string citations in text or in footnotes.

Not surprisingly, the authors have a number of complaints about lawyers' written submissions to the bench.  Their critiques of lawyerly writing prompt me to invite nominations for exemplary judicial writing -- i.e., judicial opinions that (apart from whether you agree with their holdings) you find especially clear, cogent, well-organized, and enjoyable to read.  I'll start by nominating Justice Jackson's dissent in Korematsu.  The opening sentences demonstrate from the start his crisp prose style:

"Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country.  There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived."

Posted by Helen Norton on May 12, 2008 at 11:28 AM in Teaching Law | Permalink


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