The Perfect Opinion

Forthcoming, Volume 12.2 Washington University Jurisprudence Review

50 Pages Posted: 23 Jul 2019 Last revised: 29 Aug 2019

Date Written: July 26, 2019

Abstract

In this Article I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about *us*. So why do judges often select non-authoritative opinions (alternative concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine.

Instead it seems that at least some judges share a critical perspective that citation is a “mask hiding other considerations” , and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on first principles reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we have to work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.

Keywords: legal theory, constitutional law, legal writing, legal method

Suggested Citation

Kerr, Andrew Jensen, The Perfect Opinion (July 26, 2019). Forthcoming, Volume 12.2 Washington University Jurisprudence Review. Available at SSRN: https://ssrn.com/abstract=3424306 or http://dx.doi.org/10.2139/ssrn.3424306

Andrew Jensen Kerr (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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