Thursday, November 18, 2010

The NYT Throws A TwIqbal Party!



I'm always amused by judges who caution lawyers not to be verbose in filings, and to adhere strictly to the page limits in briefing.  This is usually accompanied by a whine about "all the paper" the Court has to deal with and that brevity is a virtue and you should be able to convey your legal position succinctly and clearly.

Yet many of these judges write long, repetitive, confusing opinions, sometimes twice the page limits of the briefs submitted by the parties themselves.

In a truly fascinating article, no court is more guilty of this than our own Supremes:
Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said. 

Not only are recent Supreme Court opinions ponderously long, they are also frustratingly vague and confusing!

Guess which ones gets featured:
In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”

That standard, Arthur R. Miller wrote last month in The Duke Law Journal, is “shadowy at best” and has caused “confusion and disarray among judges and lawyers.” 
You don't say!

5 comments:

  1. This post is intriguing even if by accident. While the length of opinions has grown, the number of them has shrunken over the years. This fact is rather remarkable when you consider that there are more laws and especially regulations to review and the population has grown substantially. Add to this the technological advances that have made writing opinions all that easier. But the volume of BS has stayed constant. It has just been packaged into fewer but larger containers.

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