Should we apply scholarly standards to judicial opinions?
SLevinson at law.utexas.edu
Wed Sep 29 15:24:11 PDT 2004
I have nothing to add re Larry Tribe, and I apologize if anyone has
already made the point I am about to make, but...
What do we, as law professors, say about the fact that most Supreme
Court opinions are not written (in any sense that scholars would
recognize as similar to "writing an article") by the persons signing
them and that arguments are often unattributed? I think, for example,
of Thomas's concurrence in Lopez, which I read as an unacknowledged
presentation of Richard Epstein's article on the limited meaning of
"commerce" at the time of the Convention. There are, obviously, lots of
footnotes, but I strongly suspect that Thomas and his clerk(s) got the
material they're citing from Epstein rather than from their immersion in
the Supreme Court Library. (Recall, for that matter, Thomas's explicit
disavowal, in his hearings, of speeches he had given as, in effect, not
really expressing his views, but, rather, those of his speechwriters.)
No doubt similar things could be said about certain Brennan or Marshall
opinions, so I really don't mean to be making a partisan point. To
adopt Mark Graber's point, the true "celebrity authors" are Supreme
Court justices, all of whom have too many clerks who are eager beyond
measure to write Supreme Court opinions. And I suspect that every law
professor, even those who don't particularly write for judges (instead
of our fellow academics) must occasionally feels "undercited" when
something we regard as "our ideas" show up, unattributed, in a legal
opinion. What kind of slack are we willing to give the justices (and
their clerks) with regard to their own "scholarly" practices.
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