Writing, Cognition, and the Nature of the Judicial Function

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive - that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits - such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process. This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of the problem to the exclusion of those inputs that are more important to proper analysis. The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement) primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them

Some Observations on Separation of Powers and the Wisconsin Constitution

In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy

Some Observations on Separation of Powers and the Wisconsin Constitution

In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy

Remedying Judicial Inactivism: Opinions as Informational Regulation

This article continues the exploration of what I have termed judicial inactivism - the possibility that judges might sometimes fail to perform the minimum requirements of their role. That task, of course, requires consideration of what those minimum requirements might be. To what extent, for example, are courts subject to a duty to adjudicate not merely the cases before them in a broad sense, but also to resolve the precise claims and arguments that the parties put before them on the terms that the parties have done so? The article first draws on my prior work to outline some of the components of these minimum requirements, which I have termed the adjudicative duty. It then explores the extent to which the current structures and processes of appellate courts facilitate fulfillment of that duty. It concludes that many of the traditional constraints that encouraged appellate courts to comply with the adjudicative duty are no longer effective, due in large part to modifications made in response to the demands of rising caseloads. The article next develops a conception of judicial opinions as a mechanism of informational regulation, a term used to describe regulatory processes that operate through the required disclosure of information rather than through more traditional command-and-control mechanisms. That analysis suggests that the format of opinions could be modified so as to encourage judicial behavior that is more consistent with the adjudicative duty. The article finally proposes one such modification. Specifically, I suggest that opinions include framing arguments - party-generated statements of the issues before the court. Judges required to justify their decisions in the shadow of the parties\u27 characterization of the dispute, I argue, would be more likely not only to justify, but also to reach those decisions in a manner that is responsive to the parties\u27 arguments, and therefore more consistent with the adjudicative duty. The use of framing arguments would also encourage greater transparency in the judicial decision making process, thereby making it easier for the various audiences to which judicial opinions are directed to monitor courts\u27 behavior

The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions

This article draws on literary and linguistic theory, as well as prior work studying the effects of metaphor in judicial opinions, to study the use of a specific type of metaphor - baseball metaphors - in judicial opinions. The article surveys several specific metaphors that have been recurrently used - including the judge as umpire, hit-and-run, and three strikes and you\u27re out - and considers the ways in which the use of such metaphors might direct thought about the underlying subject matter in inappropriate directions