Professional Irresponsibility and Judicial Opinions

Abstract

In the United States, the style of judicial opinions is subject to little formal constraint, and judges exercise sweeping rhetorical discretion in their opinion writing. Some judges write conversationally and in a jocular tone, others formally and solemnly. Some regularly include legally irrelevant details about litigants, with no apparent purpose other than to create an engaging or emotionally satisfying narrative. And many judges take care to develop and maintain their own distinct, personal styles through their judicial opinions. Not only are judges permitted to use opinion writing as a means of self-expression and individuation, but they are also widely encouraged to do so.

We should be concerned about this kind of judicial discretion because judges exercise it in ways that undermine the integrity of the judicial role and compromise the legitimacy of opinions, courts, and the adjudicative process. This Article suggests that the kind of colorful and aesthetically pleasing judicial writing style that commentators widely encourage, and that many judges adopt, makes for professionally irresponsible opinions. I argue, accordingly, that judges should exercise greater rhetorical restraint, and I describe what this kind of restraint would look like and propose possible mechanisms for fostering it.

Keywords: adjudication, courts, judging, judicial process, judicial administration, judicial ethics, professional responsibility

JEL Classification: K40, K41