Thank you for sharing!

Your article was successfully shared with the contacts you provided.
It is no secret that law clerks, usually novice lawyers, play a critical role in the writing of American judicial opinions. Like it or not-and for obvious reasons, many do not-the system is a rational response to crushing caseloads and limited judicial resources. And while, as Judge Richard A. Posner puts it, “[l]aw professors resist acknowledging to themselves that they are teaching the work of last year’s graduates, and lawyers resist acknowledging that they are writing for kids,” the polite denial within the profession seems to be diminishing. More and more, law schools are recognizing an obligation to prepare future clerks for the important roles they will be assuming. I am a career law clerk to a federal appeals court judge. A decade ago, I was hired by Franklin Pierce Law Center in Concord, N.H., and Vermont Law School in South Royalton, Vt., to teach a judicial opinion writing course. Initially, the course was a boutique seminar designed to appeal primarily to students who would be clerking or serving an internship in a judge’s chambers. Over time, however, I have attempted to broaden its scope and appeal, as I have become convinced of the benefits of having all law students practice adjudicative writing. Considering judges’ perspectives Why should students other than those on the clerkship path be taught opinion writing? In a difficult case, the most effective advocates are not those who advance the merits of a client’s cause most forcefully, but those who frame their arguments in terms that demonstrate an appreciation of the adjudicator’s predicament, and speak credibly to the myriad institutional and policy questions that tend to trouble judges: How strong is my grasp of the relevant social background facts? How competent am I to weigh those facts? What consequences would flow from a broad (or narrow) ruling? Is the issue receiving consideration from the democratic branches? And so on. In my experience, relatively few lawyers make effective arguments of this sort. Perhaps part of the reason lies in the fact that few lawyers have had occasion to reason through a legal problem, or grapple with a record, from a judge’s perspective. Well-designed opinion-drafting exercises can help to fill this experiential gap and ground the development of an empathetic grasp of the choices and dilemmas that judges face. And this can lead to better advocacy. For this reason, law schools might well consider making opinion-writing exercises part of the standard curriculum. But, as more law schools are recognizing, the topic is large and important enough also to merit its own course. While such a course may take any number of forms, it has been my experience that students particularly benefit from working on hard cases with messy records and uneven briefing. In such cases, institutional and policy concerns of the types I mentioned loom especially large. This semester, my students are preparing opinions on two federal appeals. The first asks students to decide whether Internal Revenue Service agents violated the Fourth Amendment by reassembling, without a warrant, shredded personal documents fished from the trash of a suspected tax cheat. The second challenges an immigration judge’s ruling that an alien should be deported because she married fraudulently to secure an immigration benefit. The constitutional case raises timely issues about how a judge is to apply a general constitutional standard built on the fiction that there would be a consensus within American society about the reasonableness of the defendant’s belief that his shredded papers never would be read. The immigration case presents hard statutory interpretation and separation-of-powers questions, and requires thought about the extent to which our legal system is equipped to accommodate diverse cultural and religious norms. My students also will read texts highlighting the connections among the types of legal problems that make their way into a court of general jurisdiction. They will study how great but ideologically diverse judges approach common law and statutory and constitutional problems, reading opinions and jurisprudential works by, among others, justices Oliver Wendell Holmes Jr., Benjamin Cardozo, Antonin Scalia and Stephen G. Breyer, and judges Posner, Learned Hand, Frank Coffin, Robert Bork and Michael Boudin. As students prepare their drafts, they will study the recent rise of pragmatic jurisprudential trends and explore the extent to which judges are capable of using and assessing empirical evidence. They will consider whether, and the extent to which, writing style influences substance, and wrestle with issues of tone and candor. And they will conduct several opinion dissections and participate in collaborative writing exercises. It is important for law schools to prepare future law clerks to be opinion writers, and to prepare all students to advocate with a realistic understanding of the difficulties of judging. Exercises and courses on opinion writing should constitute part of that preparation. John Greabe is senior law clerk to Judge Jeffrey R. Howard of the 1st U.S. Circuit Court of Appeals. He is also an assistant professor of law at Vermont Law School, where he teaches constitutional law and judicial opinion writing, and an adjunct professor of law at Franklin Pierce Law Center, where he teaches judicial opinion writing.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.