Judges Writing Styles (And Do They Matter - )
Judges Writing Styles (And Do They Matter - )
)
Richard A. Posnert
I. WHAT IS "STYLE"?
"Style," even when confined to writing (as distinct from a
tennis player's or a dandy's "style"-or for that matter Oliver
Wendell Holmes's "style," if one is thinking of the whole person
or persona, rather than just the writing; or even "style" as a
synonym for culture), is one of those words that we are entirely
t Chief Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer in
Law, The University of Chicago. I thank Guido Calabresi, William Domnarski, Frank
Easterbrook, Ward Farnsworth, Robert Ferguson, William Landes, Lawrence Lessig,
Martha Nussbaum, Cass Sunstein, and Erika Vanden Berg for their very helpful com-
ments on a previous draft.
' See, in particular, The Federal Courts: Crisis and Reform 107-15, 230-36 (Harvard,
1985); Goodbye to the Bluebook, 53 U Chi L Rev 1343 (1986); Law and Literature: A
MisunderstoodRelation 281-99 (Harvard, 1988); Cardozo:A Study in Reputation, 33-57,
125-43 (Chicago, 1990). Interest in the subject is, I think, growing. See, for recent exam-
ples, Haig Bosmajian, Metaphor and Reason in Judicial Opinions (Southern Illinois,
1992); Mark Tushnet, Style and the Supreme Court'sEducationalRole in Government, 11
Const Commentary 215 (1994).
2 The sense in which it is used in Peter Gay, Style in History (Basic Books, 1974),
1421
1422 The University of Chicago Law Review [62:1421
and in Karl N. Llewellyn, The Common Law Tradition:Deciding Appeals (Little, Brown,
1960). "'[Sltyle' for this book refers to style of work, of craftsmanship, of doing, not to indi-
vidual or period literary style." Llewellyn, The Common Law Tradition at 464.
' For a recent analysis of legal rhetoric in the Aristotelian sense, see Lawrence
Douglas, ConstitutionalDiscourse and Its Discontents:An Essay on the Rhetoric of Judi-
cial Review, in Austin Sarat and Thomas R. Kearns, eds, The Rhetoric of Law 225 (Michi-
gan, 1994).
See references in Posner, Law and Literature at 271 (cited in note 1).
5 Evidence that style is indeed dispensable at least in some forms of writing is that a
badly written article by an economist is no less likely to be accepted for publication in a
premier economic journal than a well written one. David N. Laband and Christopher N.
Taylor, The Impact ofBad Writing in Economics, 30 Econ Inquiry 673 (1992).
1995] Judges' Writing Styles 1423
' The contrary view (that judicial writing is as unparaphrasable as poetry-is indeed
a form of poetry), the view of Richard Weisberg, is effectively criticized in Note, Reading
Literature/ReadingLaw: Is There a Literary Jurisprudence?,72 Tex L Rev 135, 141-44
(1993).
7 "Style" is used in approximately this sense in the discipline of stylistics, which
studies writing styles, often with aid from statistics on sentence length, sentence type,
and frequency of parts of speech. See, for example, Lucy Pollard-Gott and Lawrence T.
Frase, Flexibility in Writing Style: A New Discourse-Level Cloze Test, 2 Written Communi-
cation 107, 108-09 (1985).
See, for example, Joseph M. Williams, Style: Ten Lessons in Clarity and Grace
(Scott, Foresman, 2d ed 1985). The best style "handbook," though, is still George Orwell's
essay, Politics and the English Language, in Sonia Orwell and Ian Angus, eds, 4 The
Collected Essays, Journalismand Letters of George Orwell 127 (Camelot, 1968). There are
actually handbooks of judicial style. They more or less parallel the general style hand-
books, and are largely ignored-even, I think, unknown. See, for example, American Bar
Association, JudicialOpinion Writing Manual: A Productof the Appellate Judges Confer-
ence, Judicial Administration Division 37-64 (West, 1991) (chapter entitled "Writing
Style"); Ruggero J. Aldisert, Opinion Writing 177-225 (West, 1990) (last part of book, enti-
tled "Writing Style"); Federal Judicial Center, Judicial Writing Manual 21-26 (US GPO,
1991); Joyce J. George, Judicial Opinion Writing Handbook 261-362 (William S. Hein, 3d
1424 The University of Chicago Law Review [62:1421
ed 1993) (chapter entitled "Writing Effectively"); Richard C. Wydick, Plain English for
Lawyers, 66 Cal L Rev 727 (1978).
' John M. Ellis, The Theory of Literary Criticism:A Logical Analysis 42-53 (Califor-
nia, 1974).
1995] Judges' Writing Styles 1425
fled that.. ."), allows modern judges to think that their opinions
are free from jargon. They should think again.
Tone is also shaped by the length and structure of sentences.
Suppression of ornamentation and parentheticals, simplicity and
brevity, and short sentences and sentence fragments all tend,
generally, to "lower" the tone of a writing, to make it more like
speech. But the qualification implicit in "generally" is important.
The elimination of all ornamentation may impart an impersonal,
bureaucratic, and hence formal tone to a writing, while an excess
of brevity may lend it an oracular, dogmatic, imperative, and
thus, again, a formal tone. And a string of short sentences can
create0 the impression of a harangue-the "Brandeisian jackham-
mer."
The avoidance of headings and subheadings (and of course of
footnotes) has a "lowering" effect as well. The absence of these
"scholarly" appendages marks an opinion as informal, even con-
versational; no one speaks in footnotes and headings. Coordinate
sentence structure, in which clauses are connected by "but" and
"and," lowers tone, too, while the arranging of clauses in hierar-
chies by means of subordinating or concessive conjunctions such
as "although" raises it. A proclivity for technical terms and acro-
nyms raises tone; a fondness for everyday speech lowers it. Tone
is raised by polish, lowered by candor, "straight talking," and
spontaneity (or the pretense of these things), as we can see in the
contrast between Brutus's and Antony's funeral orations in Jul-
ius Caesar. Oddly, a predilection for rare words that are not
terms of legal art can raise tone by making an opinion seem
pompous and learned yet equally can lower it by making the
opinion seem self-indulgent, even frivolous. Personality generally
lowers, impersonality raises (with an important qualification
noted later); so frequent use of "I" marks an opinion as "low"-or
would but for a pretty unshakable convention that a majority
opinion, which is to say an opinion joined by more than one
judge, is styled as jointly authored ("we hold," never "I hold").
Certitude raises tone; dubiety or tentativeness lowers it. Config-
uring an opinion as a story, debate, or exploration lowers; config-
uring it as dogmatic announcement, de haut en bas, raises. The
"high" style is declaratory, the "low" exploratory.
I have been using the metaphor of height to contrast what I
contend are the two basic styles of judicial writing, as of writing
generally. The problems with this metaphor are that the pejora-
" Pure and Impure Poetry, in Robert Penn Warren, Selected Essays 3 (Random
House, 1958) (1942 essay).
12 Id at 16.
" As Samuel Johnson put it, Shakespeare's "dialogue is level with life." Prefaceto the
Plays of William Shakespeare, in R.D. Stock, ed, Samuel Johnson'sLiterary Criticism 139,
143 (Nebraska, 1974).
1995] Judges' Writing Styles 1429
Supreme Court Justices forced him to make.) And there are plen-
ty of judges who seem to fall right in the middle. For the pure
and the impure do not divide up the whole world of judicial opin-
ions between them. They mark the ends of a spectrum.
The pure tendency is illustrated by the opinions of Cardozo,
Brandeis (especially his majority opinions), Frankfurter,
Brennan, and the second Harlan, and is characteristic of the vast
majority of opinions written by law clerks, which means most
opinions in all American courts today. The pure style is the in-
veterate style of law review editors, from whose ranks most of
the clerks are drawn. On the impure side can be found most
opinions of Holmes, Douglas, Black, Jackson, and Learned
Hand. 9 In the middle, the most notable opinions may be those
of Henry Friendly. Inclusion of Douglas in the list of impure judi-
cial writers should make clear that impure judicial opinion writ-
ing is not always superior to pure, any more than all impure
poetry is superior to all pure poetry. Cardozo, mostly a purist,
was one of the finest judicial writers in our history.
'" Don't be fooled by the florid character of some (not all, or even most) of Hand's
prose. It reflects the culture in which he grew up. He was born in 1872. With a similar
adjustment in perspective, John Marshall's opinions can be seen as notable examples of
the impure style.
" I discuss these at length in my book The Problems of Jurisprudence (Harvard,
1990).
1995] Judges' Writing Styles 1433
" For examples, see Hand's opinions in Nichols v Universal Pictures Corp, 45 F2d
119 (2d Cir 1930), and Fishgold v Sullivan Drydock & Repair Corp, 154 F2d 785 (2d Cir
1946); and Jackson's opinions in West Virginia State Board of Education v Barnette, 319
US 624 (1943), and Johnson v UnitedStates, 333 US 10 (1948); and almost any opinion of
Holmes-I will give an example shortly.
231 NY 229, 131 NE 898 (1921).
See Posner, Cardozo at 48-55 (cited in note 1).
1434 The University of Chicago Law Review [62:1421
I fear for the future. I fear for the liberty and equality of the millions of women who
have lived and come of age in the 16 years since Roe was decided.
For today, at least, the law of abortion stands undisturbed. For today, the
women of this Nation still retain the liberty to control their destinies. But the signs
are evident and very ominous, and a chill wind blows.
Id at 538, 560. His fear proved unwarranted.
26 Roe v Wade, 410 US 113 (1973). On the rhetorical ineptitude of the opinion, see
Richard A- Posner, Sex and Reason 337 (Harvard, 1992).
Callinsv Collins, 114 S Ct 1127, 1128 (1994) (dissenting opinion). As Justice Scalia
pointed out, Justice Blackmun's belief that the death penalty cannot be administered con-
stitutionally is based in significant part on the existence of inconsistent lines of Supreme
Court decisions, and the Court could eliminate the inconsistency by choosing between the
lines. Id at 1127-28 (Scalia concurring).
' PlannedParenthoodof Southeastern Pennsylvania v Casey, 112 S Ct 2791 (1992).
I fear for the darkness as four Justices anxiously await the single vote necessary to
extinguish the light.
I am 83 years old. I cannot remain on this Court forever, and when I do step
down, the confirmation process for my successor well may focus on the issue before
us today.
1995] Judges' Writing Styles 1435
' The creation of the implied author corresponds to the ethical appeal in classical
rhetoric-that is, to the devices by which a speaker tries to convince his audience that he
is the kind of person who is worthy of belief.
Willard Hurst rightly notes Holmes's "irreverence toward judicial pretense"-a sa-
lient characteristic of Holmes's opinions. See Who Is the 'Great'AppellateJudge?,24 Ind L
J 394, 398 (1949).
1995] Judges' Writing Styles 1437
' See, for example, Patricia M. Wald, How I Write, 4 Scribes J Legal Writing 55
(1993).
(9 977 F2d 617 (DC
Cir 1992).
", Id at 618.
Id.
Id at 619.
1438 The University of Chicago Law Review [62:1421
tribute to the sense that the court is in command of all the facts
and hence is more likely to be right.
There follows a brief, unexceptionable, but also not strictly
necessary statement of the standard of appellate re-
view-unnecessary because it is well known and because nothing
in the case turns on it-and then comes a discussion of Morris's
first ground of appeal, that there was not enough evidence to
convict him of possession of the drugs." "Possession, of course,
can be either actual or constructive."4 "Constructive possession"
is actually a rather tricky concept, so we may suspect that the "of
course" is a bit of whistling in the dark. It does not help much to
be told that constructive possession "requires evidence supporting
the conclusion that the defendant had the ability to exercise
knowing 'dominion and control."'42 Or that "[a] jury is entitled to
infer that a person exercises constructive possession over items
found in his home."' The opinion reviews the facts and finds
"ample evidence from which the jury could infer that Morris lived
alone in the apartment and exercised constructive possession
over its contents.""
One begins to sense that an elephant gun is being discharged
against a mouse. Morris was found in an apartment fairly burst-
ing with drugs, and there was plenty of evidence that he was the
only resident of the apartment. He testified, it is true, that he
was just a visitor, that he had in fact, by an unhappy coinci-
dence, showed up just a few minutes before the police raid. The
jury did not have to believe this and obviously did not. It believed
he was the tenant, so the drugs must have been his, since no
theory was advanced as to who else might have owned the drugs
if Morris was indeed the tenant. There is really no more that the
opinion needed to say about the drug conviction. Indeed, I find
the notion of "constructive" possession of the contents of one's
own apartment extremely weird. Morris was sitting on his couch
when the police entered. Was he in merely "constructive" posses-
sion of the couch? If so, then what is "actual" possession?
The bulk of the opinion is given over to Morris's challenge to
his conviction for having used or carried a gun during and in
Quite rightly, the opinion deals summarily with the question whether, if Morris
possessed the cocaine found in the apartment, he possessed it with the intention of selling
it. That was obvious from the quantity and packaging of the drugs. See id at 620.
41 Id at 619.
42 Id.
43 Id at 620.
Id.
1995] Judges' Writing Styles 1439
relation to his drug dealings.4 5 The opinion says that the court
is going to analyze this as a "use" rather than a "carry" case. But
a footnote toys with the alarming possibility-the sort of thing
that makes the laity wonder about the legal mind-that Morris
could have been found to be "carrying" the two guns found under
the couch on which he was sitting when the officers entered the
apartment.4 6 And here is a warning against footnotes in judicial
opinions: although the "carry" footnote says the guns were under
the couch, the statement of facts with which the opinion had
begun (well, almost begun) had said that they were in the couch,
under the seat cushions,47 which if true (it is repeated later, so I
shall assume it is true) makes the idea that Morris committed
the carrying offense a little more plausible.
In the text we are told that the test for the "use" offense is
whether "the gun facilitated or had a role in the trafficking of-
fense"---but this is just a restatement of "use"--and that to
help in applying the test, "this court has identified a number of
factors.... We discuss only some of them here, recognizing that
courts have identified and will identify others."49 This is faintly
alarming. Multifactor tests are notoriously difficult to apply, and
the difficulties are not reduced by leaving the list of factors open-
ended. More to my present point, multifactor tests invite tedious,
,meandering opinions.
The first factor discussed is possession. But while stressing
its importance, the opinion also expresses puzzlement about how
someone could use a gun that he did not possess. The obvious
answer, though it is not mentioned, is that he could threaten to
use a gun that was not his-and that he would never have tried
to grab-but that was within his reach, making his threatening
gesture credible.
The opinion says that "[miere possession of a gun even by a
drug trafficker does not violate the statute" but that the statute
does reach "any case in which the gun facilitated or had a role in
the trafficking offense."" This means that "the defendant's pos-
session of the gun is an important factor," and "[p]ossession, of
course [of course], encompasses joint, as well as constructive
51 Id.
52 Id.
Id at 622.
United States v Bruce, 939 F2d 1053 (DC Cir 1991).
Morris, 977 F2d at 622.
Id at 622.
57 Id.
Id at 622-23.
1995] Judges' Writing Styles 1441
' As Learned Hand acknowledged: "The fact that we are ourselves not agreed
cautions us that we should not be too sure of our conclusion; and obviously the really
important matter is that the question should reach the Supreme Court as soon as pos-
sible." Fishgold v Sullivan Drydock & Repair Corp, 154 F2d 785, 791 (2d Cir 1946).
' A careful recent study estimates that 10 percent of all U.S. households contain a
loaded and unlocked-that is, an immediately usable-firearm. David Hemenway, Sara J.
Solnick, and Deborah R. Azrael, FirearmTrainingand Storage, 273 JAMA 46, 48 (1995).
", These would be in addition to the 10 percent in the survey referred to in the pre-
ceding footnote. It was a telephone survey, and 27 percent of those called refused to be
interviewed. Id at 47. Undoubtedly the non-law-abiding were among the nonrespondents.
1442 The University of Chicago Law Review [62:1421
6 See, for example, United States v Edwards, 36 F3d 639, 644 (7th Cir 1994).
63 Judge Wald's court has discarded the multifactor approach to gun cases in favor of
a much simpler approach, in which proximity of the guns to the drugs and accessibility of
the guns to the defendant are the only factors to be considered. United States v Bailey, 36
F3d 106 (DC Cir 1994) (en banc). Judge Wald dissented, as did several other judges. None
of the opinions, however, discusses the theory of the statute that I expound above.
' See Duangkamol Chartprasert, How Bureaucratic Writing Style Affects Source
1995] Judges' Writing Styles 1443
V. SPEAK, FosSIL!
Stack v New York, N.H. & H.R. Co. 9 is not one of Holmes's
best-known opinions. It was written in 1900, when Holmes was
still on the Massachusetts Supreme Judicial Court. It deals with
a personal injury suit. Shortly before trial, two doctors selected
by the defendants conducted a medical examination of the plain-
tiff. After trial began and the plaintiff completed the presentation
of his evidence, and after the two doctors had testified for the
defense, the defendant asked the court to order the plaintiff to
submit to another medical examination, by a third doctor selected
by the defendant. The plaintiff objected on the ground that his
relations with that doctor were unfriendly, but offered to submit
to an examination by any other doctor selected by the defendant.
The defendant declined the offer. The judge refused to order the
examination, "ruling that [he] had no power or right to make
Credibility, 70 Journalism Q 150 (1993), finding that a writer who employs a bureaucratic
style, marked by passive voice, nominalization, abstraction, and jargon, is likely to be
rated by readers as having greater expertise than a writer who employs a
nonbureaucratic style to say the same thing. Compare Tushnet, 11 Const Commentary at
225 (cited in note 1).
Wald, 4 Scribes J Legal Writing at 61 (cited in note 35).
Id at 62. He was not appointed to the U.S. Supreme Court until 1902.
67 Id at 60.
68 Id.
' 177 Mass 155, 58 NE 686 (1900). The opinion is less than two pages long, so I shall
not pinpoint cite my quotations from it.
1444 The University of Chicago Law Review [62:1421
"' See Paul A. Freund, Foreword:Homage to Mr. Justice Cardozo, 1 Cardozo L Rev 1,
2 (1979).
1446 The University of Chicago Law Review [62:1421
When we consider the situation at the time that the Act was
passed-September, 1940-it is extremely improbable that
Congress should have meant to grant any broader privilege
than as we are measuring it. It is true that the nation had
become deeply disturbed at its defenseless position, and had
begun to make ready; but it was not at war, and the issue
still hung in the balance whether it ever would be at war. If
we carry ourselves back to that summer and autumn, we
shall recall that the presidential campaigns of both parties
avoided commitment upon that question, and that each
candidate particularly insisted that no troops should be sent
overseas. The original act limited service to one year, and it
was most improbable that within that time we should be
called upon to fight upon our own soil; as indeed the event
proved, for we were still at peace in September, 1941. Con-
gress was calling young men to the colors to give them an
adequate preparation for our defence, but with no forecast of
the appalling experiences which they were later to undergo.
Against that background it is not likely that a proposal
would then have been accepted which gave industrial priori-
ty, regardless of their length of employment, to unmarried
men ....75
This effort "to reconstruct... the purpose of Congress when it7
used the words in which [the provisions in issue] were cast"
owes nothing to distinctively "legal" methods of reasoning and
could not, I think, be adequately expressed in a style designed for
the articulation of those methods. It may be a good or a bad ap-
proach to statutory interpretation, but that is not the issue.
Judges whose thought carries-rightly or wrongly-beyond the
conventional categories of legal thinking need a style equal to the
range of considerations that they consider relevant. They need a
style that is increasingly rare.
' Id at 788-89.
76 Id at 789.