Said Stephanos Bibas, a Trump appointee on the 3rd Circuit Court of Appeals, quoted in a Reuters article with, ironically, a headline that's hard to understand, "'Judges gone wild': Trump-appointed judge says too many write for Twitter."
I thought, from that headline, that some judges were actually posting on Twitter and going wild there!
But Bibas was talking about opinion-writing. He objected to...
... filling [opinions] with distracting jargon, bad jokes and pop culture references, such as Star Wars in one case, rather than delivering "clear and succinct" rulings.
"For the show off, it seems to be all about the judge's musings, even the judge's ambitions to be noticed," Bibas said. "'Look at me, look at me, I'm so cool.' That is not authoritative. It is even disrespectful."
Asked by a student how judges feel when a big ruling like his election decisions garners them "newfound fame"....
I wonder if the student used the word "garner."
... Bibas said "the kind of cheerleading you get from Twitter is really dangerous," yet some judges seem to seek that attention.
"Try to be on Twitter less than you otherwise would," he said. "Try not to be searching for the feedback or the plaudits or anything else. Just focus on the craft and find as much internal satisfaction in the craft of judging and writing as you can."
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those DARN trump judges!! We WOULDN'T be hearing things like this from an O'Bama judge!!
"Try not to be searching for the feedback or the plaudits or anything else. Just focus on the craft and find as much internal satisfaction in the craft of judging and writing as you can."
Where the hell is the fun in that? I mean, that sounds like, you know, doing your job...
I am hearing that these journalists think judges should be listening to them.
The only profession that should be taking advice from journalists are teachers.
"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious," Bibas wrote. "But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
Isn't that a piece of writing in an opinion that could be twisted around by a politician.
He didn't rule that cheating didn't occur, he ruled that there was no evidence presented that it did.
Yet that decision has been widely used as saying that the cheating didn't happen. He would have written the last two sentences and left out the first three pontifications if he followed his own advice.
I thought the problem was law clerks who write 100-page opinions, unnecessary concurrences and tiresome dissents. (Much like legislation that has grown out of control in length and complexity, the decisions in my law books were generally only a few pages, a dissent may be a few paragraphs.)
I'm not denying that a decision that lacks the gravitas of a legal opinion can damage the court's reputation, but it's not the biggest problem, IMO.
Isn't most of the text just lifted from the winning brief?
Anyway there's been a clear-writing trend in law for decades. But yeah Star Wars Hobbit LoTR refs I can do without.
Judge Bibas spent several decades as a law prof at Penn, where he was teaching when appointed to the 3d Circuit, and wrote several books and many law review articles on legal topics. So not surprising that he disapproves of "distracting jargon, bad jokes and pop culture references" in judicial opinions. That's mostly a matter of decorum and taste -- each to his own, as they say. Clarity and logical reasoning are essential -- style and even good writing, nice to have but not essential in judicial opinion-writing. Judge Friendly was a case in point -- brilliant and much admired judge, but he was never going to win any awards for engaging or stylistic writing, and brevity was not his strong suit.
His argument that judicial opinions written in clear and non-technical language will constrain "the power of politicians or talking heads to shape or warp the narrative" is unpersuasive (to put it charitably).
"Judges ought to write in a way that "ordinary citizens can understand""
But what can ordinary citizens understand? At a 100 IQ, even "clear" opinions are going to be a challenge. Of course, half the population has to manage with less than 100.
Some difficulties have nothing to do with the clarity of prose. Ask people to read the 14A, then explain "substantive due process," then reconstruct the reasoning in Obergefell.
"because it "constrains the power of politicians or talking heads to shape or warp the narrative.""
This is naive. Progs gonna do the prog thing regardless. Case in point: Dobbs. Very clear opinion. Very clear holding. Doesn't stop the warping.
This is so true.
Anything that discredits the federal judiciary is OK with me. We need to stop worshipping lawyers in black robes who act like philosopher kings. If they get more judges talking about seinfeld, then maybe all the Dumbo conservatives will stop thinking every Federal Judge is Oliver Wendall Holmes with a touch of Plato and King Solomon.
Today's 9th Circuit transgender decision may be an example. Writer of majority opinion also writes separate concurrence where he goes into stuff about transgenderism that the other judge in the majority possibly did not want to sign on to. He's kinda notorious for his twitter-seeking opinions.
Judges would greatly benefit from page limits on opinions.
Do not write to be understood.
Write so that you cannot be misunderstood.
Lucien, ha!
My father was, a long time ago, on a Presidential Commission about aviation safety.
He told me after, the thing he was proudest about, was that the report was on!y 30 pages. Probably a record, and "it might actually be read" by someone.
Any court/judge that wants to be more concise and clear should stop using word processing and go back to using typewriters. I guarantee the length of opinions would shorten and the number of footnotes would decrease.
Good for him. It's a satirical observation of judicial pageantry, and, perhaps obliquely, of editorial headlines.
The Nebraska Supreme Court's opinions are a model of clarity. Short and concise.
I admire Bibas’ intention and wish him much success; but the sad fact is, written communication (like all communication) is subject to entropy. If there is a way for the meaning to be lost or blurred, it will happen. In the case of abstractions piled on great drifts of strange concepts embedded in jargon accumulated over centuries by technicians who are rewarded for their ability to pettifog and invent distinctions in a game for mortal stakes —well, it will happen even sooner.
My beef with legal writing is not just its turgidity but its sheer bulk. The mass of ever-increasing statutory law (plus regulations and guidelines and interpretations and updates and opinions and technical advisories and…) drives each mortal practitioner to specialize ever more narrowly. The idea of a coherent jurisprudence based on common sense and intuitive principles becomes ever more difficult to sustain.
The Priesthood shudders.
If Bibas is so irked by the worst style of the Twitter-verse, I hope he stays well away from Architectural Digest, he might blow a gasket.
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