2019 BYU Law Review 473
61 Pages Posted: 12 Sep 2019 Last revised: 12 Nov 2020
Date Written: September 4, 2019
Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty — ”obviously X,” “undoubtedly Y,” etc. — that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that weren’t enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc. — the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.
Yet the rhetoric of certainty persists. Why? To what effect? And how concerned should we be? The typical answers’ logic and empirical assumptions have largely escaped serious scrutiny. This Article begins to fill the gap. It identifies five conventional accounts of the causes, effects, and (uniformly negative) normative implications of judicial certainty rhetoric. After highlighting some intuitive implausibilities in each account, the Article reports new empirical evidence, drawing on an original dataset concerning assertions of certainty and uncertainty in nearly 500 federal appellate opinions and 350 corresponding briefs. These new data cast further doubt on the conventional accounts and suggest an alternative account of judicial certainty rhetoric — one with very different normative implications.
According to this Article’s new “efficient management” account, judges, constrained by individual reputation concerns, credibly and sincerely report certainty relative to a rhetorical baseline that their primary audiences readily presume. Judges thereby provide useful information to other judges, lawyers, and litigants, efficiently managing the judicial system in an era of expanding caseloads, without straying from their proper role. The Article draws from recent philosophical work in the field of “social epistemology” to argue that the practice of reporting relative certainty is not merely efficient, but also epistemically valuable, facilitating the judiciary’s truth-discovery goals. The overall implication is that judges should report their attendant degree of certainty more often, not less. Finally, the Article argues that, while it may well be desirable to shift the rhetorical baseline toward greater levels of expressed uncertainty, doing so may carry unintended consequences, such as (perhaps paradoxically) decreasing judicial deliberation and reducing a particular type of judicial minimalism. In the end, wherever the ideal rhetorical baseline might be, the case against reporting certainty is less certain than is typically suggested.
Keywords: judicial behavior, law and language, social epistemology, rhetoric
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