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Tuesday, February 18, 2020

Perry Dane on Law Clerks and Jurisprudence

A tip of the hat to Perry Dane and his new article on SSRN, Law Clerks: A Jurisprudential Lens. It's a fine article and a timely one. (Actually, it is always a timely topic.) Here's the abstract:

American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.

This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?

The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?

The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.

This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.

It's a very enjoyable piece. I would flatter it more, but I am enjoined not to. My initial reaction to the piece was that one reason we might distinguish between practices in this area and practices in Congress and the executive branch, where laws are drafted by others and the President is rarely responsible for his own words, is that we care only about the legal force of their words--the president's executive order or Congress's legislative text--while in the case of judges we care about the force of their reasoning. I'm not sure Dane convinces me otherwise. But he does convince me that this is too trite a response. Perhaps more to the point would be that we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons. To the extent that presidents have become reliant on a corps of staff-writers, we should not so much shrug our shoulders about judges as acknowledge that character has become either less important or more fictionalized in the case of presidents, and that much of our myth-making about this or that great modern president and the great and eloquent character shown by his (so far) words is just that and not a fit activity for mature adults. Idolizing as a person a president for having delivered a great speech written by a stable of employees is a lot like (but worse than), to use an example Dane also discusses, being utterly convinced that the "author" of some ghost-written memoir really is that pal you always wanted to have, based on his or her (false) written voice.   

Perhaps that points to another common trait shared by all three branches, one that Dane at least touches on in the paper: that the workload of each branch is such that "increased delegation...is simply unavoidable." In short, each branch (judiciary included) has become, ever more so, a fully bureaucratic enterprise, in which personality, character, and virtue are either less essential or, at a minimum, less important and less visibly a key element. (At least when the branch functions properly; I grant that some presidents and perhaps some judges may present a challenge to this observation.) I think there is substantial truth to this and substantial necessity, but that taking it on board means jettisoning the tendency to treat judges as intellectual and aretaic giants. They may be just that, but they needn't be. If we saw them as corporate offices engaged in the bureaucratic exercise of "justice," we would hardly need the phony mystery, omerta, and "open secret" tendencies--the "diffidence"--that Dane describes well about law clerks and their work. (I very much enjoyed his brief discussion of "open secrets," which again seems quite timely.) I have a touch of suspicion that there are reasons, many not entirely attractive or worthy, why many might prefer the open secret to what can be a more prosaic and less romantic daily reality. Mythmaking around judges, judging, and clerkships is of benefit to more than just the judiciary itself.

A final, intriguing question is raised as something of an aside in Dane's exploration. Dane raises a question about "whether judicial opinions are more akin to political and corporate speeches, on the one hand, or to scholarly articles, on the other." In setting up this question, he offers the conventional wisdom about "scholarly ghostwriting:" "It happens. It is almost certainly wrong. And scholars themselves have articulated specific sound reasons for concluding that it is unethical and pernicious." Certainly I think so, but Dane's own reasoning, and the kinds of arguments he cites about judges, now have me questioning that conclusion. Granted that this is so if the scholar steals the work of an assistant, or publishes an assistant's work without attribution and without doing any of the research or thought involved in the work. But what is radically different about a judge checking, editing and altering, and then publishing under her own name a judicial opinion authored, after some instruction about what the opinion should say, by an law clerk--and a scholar doing the same with a piece of work performed after instructions have been issued and with some end-stage supervision and editing? One difference is that advancement for the assistant in the latter case, at least if we're talking about grad students, depends on being able to claim authorship or co-authorship and build a body of work. But I'm not sure why the reputational and career incentives should drive our over-all conclusions about the propriety of the practice, or about which professional reward structure might be in need of altering. We could just as easily not insist on a pile of publications by a junior academic, but instead look at the body of work to which they "contributed"--or insist conversely that judges ought to give some public credit to the law clerks involved in each opinion.

All in all, a fun piece. I wish I had been at that symposium! I hope that a sufficient number of skunks were invited to the garden party, so to speak.       

Posted by Paul Horwitz on February 18, 2020 at 04:43 PM in Paul Horwitz | Permalink

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