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Wednesday, February 19, 2020

More on Dane on law clerks

Inspired by Paul's post, I read Perry Dane's piece on law clerks and their role in drafting opinions. And it seems to me that Dane's discussion meshes with Suzanna Sherry's argument for eliminating signed opinions (all majority opinions must be per curiam, no concurrences or dissents).

Both worry about the judge's-name-as-icon; the no-signed-opinions solution addresses their common worries. For Dane, the attachment between opinion and name is "why the contributions of law clerks to that work product raises such deep and uncomfortable questions."  For Sherry, the attachment between opinion and name creates the judge-as-celebrity culture that, she argues, has broken the Court. Eliminating signed opinions (which are neither required, inevitable, nor essential outside the U.S.) reduces the opportunities for judges to trade on their celebrity and play to their base. And it renders clerk ghost-writing less problematic because readers no longer read and interpret the opinion--the law--as the work of a named judge with an iconic identity.

Posted by Howard Wasserman on February 19, 2020 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink


Related to the issue of opinions being written by clerks is the issue of opinions that (whoever they're written by) lift arguments, and sometimes specific language, from the briefs. When that happens, not only is there no assurance that the opinion represents the judge's well-thought-out views, there's no assurance that it represents the well-thought-out views of *anyone* in the judge's chambers.

When I read earnest discussions about what such opinions signify about the judge's (or court's) evolving jurisprudence, I laugh.

Posted by: Neal Goldfarb | Feb 20, 2020 12:26:29 AM

This is why I suggested that one drawback to Sherry's proposal is that it is too late. We are too far gone in partisanship and cults of personality to go back. The proposal might have stuck 50 or 100 years ago, before we hit this point.

Posted by: Howard Wasserman | Feb 19, 2020 12:54:32 PM

What I find interesting about this proposal, which for purposes of this comment I neither support nor oppose, is what I gestured at in my post: It suggests a depersonalized vision of law and judging, in which the character of the individual judge is submerged in a more institutional process. There are arguments for it, of course. But I find it striking in the distance it travels from a vision of office-holders as individuals whose individual characters matter. In an age in which people are newly alive to concerns about cults of personality around presidents and perhaps in judges, perhaps this is more attractive than it once was. But I think it also reflects changes in our society and our understanding of law or politics and their relationship to character--changes that involve losses as well as gains.

Posted by: Paul Horwitz | Feb 19, 2020 11:55:43 AM

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