By Sam Singer
As a law student you’re taught that legal writing is technical writing. You’re taught to distrust the fine phrase and the elegant word. Strong legal writing, you’re told, resounds less in art than in science. This is only partly true, of course, and it’s not until you leave law school that you discover that the most celebrated legal writers are often the most artful ones. Like the best artists, exemplary legal writers have mastered their medium, but they’re also inclined to transcend it from time to time. So we nod approvingly when Justice Scalia, in the course of a caustic dissent in a high-profile anti-discrimination case, finds room for a Kurt Vonnegut reference; we’re charmed by Justice Rehnquist’s use of “bare minimum” to describe an Indiana law governing appropriate attire at strip clubs; and we marvel when a prominent federal judge wraps up a forcefully argued intellectual property opinion by advising the parties “to chill.”
In this permissive setting, it’s hard to fault Judge Scott Stucky of the U.S. Court of Appeals for the Armed Forces for channeling his inner crime novelist in an opinion he handed down last week. The opening sequence of U.S. v Weston may as well have been lifted from a Raymond Chandler novel. “There was something odd about the electric razor in the bathroom,” Stucky wrote.
Here, in relevant part, is how he went on to describe the victim: “[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong.”
And the crescendo: “Her attempt to open the razor’s casing ended at Sears with a ‘Torque’ T7 screwdriver. Inside the razor she found a camera.”
Particularly noteworthy about the Stucky opinion is its proximity in time to a widely read Supreme Court dissent in which Chief Justice John Roberts toyed with a similar, if more dramatic, hard-boiled style:
“North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.”
That makes two film noir-inspired opinions in less than a year – more than enough to set off a colorful debate in the legal blogs about creativity and the bench. Having poked around these sites for a day or two, I’m still in the dark as to what, beyond mere self-amusement, would motivate a judge to make literature of a real, live judicial record. On a hunch, I scrolled through the legal writing curriculum at Harvard, where both Roberts and Stucky received their law degrees, but found no mention of judicial fiction. I also perused the faculty page – no Tom Clancy.
Writers inside the legal community have mixed but measured feelings, neither thrilled nor particularly outraged by the practice. To be sure, there is plenty of sympathy out there for the litigants involved, who were dragged through a taxing legal dispute only to have it culminate in a whimsical recounting of the record. It is at their expense, after all, that Roberts and Stucky get to explore their literary sides. Still, few will go as far as to denounce the practice, and the most common reactions take the written form of a shrug and a smile.
Some have hinted that Roberts and Stucky are merely discharging their judicial duties to educate the public. By animating their decisions with forays into outside genres, Stucky and Roberts make the law more accessible for the lay reader. This, I believe, is to confuse accessibility with visibility. If it’s the latter they’re after, I see no reason why a judge’s creative license should be limited to pulp fiction and the occasional quip. Along with new genres, why not let judges explore variations in rhythm and sound? Justice Stevens, for instance, might find that his lyrical style is uniquely suited for blank verse. As for Justice Kennedy, what better way to capture his equivocal approach to case law than a Choose Your Own Adventure book?
But if their intention is to bridge the literacy gap between lay readers and lawyers, judges would do better to emphasize clarity before comedy. This may involve dressing down some of their language, or, for matters of particular import, issuing one opinion for the legal community and a second, distilled opinion for the public. Whatever they do, I’m certain judges can find ways to broaden the public appeal of their decisions without reducing them to spectacles.
–
Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
–
Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
* Going to Pot. The states vs. the feds.
* The Sotomayor Show. A guide for viewers.
* Chicago’s Still Valid Gun Ban. Chicago vs. D.C.
* The Gay Rights Gamble. What happened in California may no longer stay there.
Posted on June 23, 2009