Law and Literature Part 14

On the specific problems of literary translation, see The Translation Studies Reader (Lawrence Venuti ed. 2000); Piotr Kuhiwczak, "The Troubled Ident.i.ty of Literary Translation," in Translation Today: Trends and Perspectives 112 (Gunilla Anderman and Margaret Rogers eds. 2003); Essays in the Art and Theory of Translation (Lenore A. Gren.o.ble and John M. Kopper eds. 1997); Peter Green, "The Slampam Blues," New Republic, Feb. 19, 1996, p. 37 (reviewing The Oxford Book of Cla.s.sical Verse in Translation); Joel Weinsheimer, Imitation 7377 (1984); Theories of Translation: An Anthology of Essays from Dryden to Derrida (Rainer Schulte and John Biguenet eds. 1992).

106. See his articles cited in note 96 above.

chapter 9.

Judicial Opinions as Literature

Meaning, Style, and Rhetoric

here is nothingeccentric about examining judicial opinions un

der the aspect of literature, and some law and literature scholars have done so.1 Many distinguished works of literature began with a religious, political, or even utilitarian, rather than a literary, aim; remember John Ellis's definition of literature as the body of writings that are used in a certain way rather than that have common features or origins. Moreover, artists (including literary writers) have something in common with judges, 1. See in particular William Domnarski, In the Opinion of the Court (1996); Annie M. Smith, "Great Judicial Opinions versus Great Literature: Should the Two Be Measured by the Same Criteria?" 36 McGeorge Law Review 757 (2005); Laura Krugman Ray, "Judicial Personality: Rhetoric and Emotion in Supreme Court Opinions," 59 Was.h.i.+ngton and Lee Law Review 193 (2002); John Leubsdorf, "The Structure of Judicial Opinions," 86 Minnesota Law Review 447 (2001); Anthony G. Amsterdam and Jerome Bruner, Minding the Law, ch. 5 (2000); Robert A. Ferguson, "The Judicial Opinion as Literary Genre," 2 Yale Journal of Law and the Humanities 201 (1990); Gerald B. Wetlaufer, "Rhetoric and Its Denial in Legal Discourse," 76 Virginia Law Review 1545, 15601566 (1990); Benjamin N. Cardozo, "Law and Literature," in Cardozo, Law and Literature, and Other Essays and Addresses 3 (1931 [1925]). I do not count James Boyd White, because as we'll see later in this chapter, and also in chapter 12, his primary interest is the moral and political significance of an opinion, not its literary qualities as defined in this chapter.

329.

*which may make the style of judicial opinions worth considering from a literary standpoint: Artists combine craftsmans.h.i.+p with creativity. But so do judges, displaying craftsmans.h.i.+p in the legalist phase of decision making and creativity in the legislative phase (the phase in which judges exercise discretion to make law, as distinct from pa.s.sively applying preexisting law), and in both phases working through a legal problem or series of legal problems and wrapping the solutions in a rhetorical package pleasing to their colleagues as their primary audience but also, they hope, to a broader audience as well. "The mixture of disciplined structure and imaginative freedom, the reworking of traditions into a new idea, the ruthless elimination of dull, incongruous or surplus materials, and the creation of a dramatic narrative . . .-not to mention patience, stamina, and attentiveness"-is said to be what gardening and novel writing have in common,2 but it can serve as a description of judicial opinion writing as well. Novelists and judges further resemble each other in being to a great extent intuitive reasoners, in the sense . . . that much of their creative thinking is unconscious. A novelist writes a pa.s.sage one way rather than another because it feels right; he may be unable to explain why it feels right. A judge often has a strong sense of which way a case should be decided, but when he tries to explain the decision in a judicial opinion the explanation will often turn out to be a rationalization of a result reached on inarticulable grounds, though sometimes the effort to explain will operate to refine and perhaps reverse the intuition that drove his vote. Norms govern the various art genres, just as norms govern judicial decisions-and in both cases the norms are contestable. Manet could not paint as well, in the conventional sense, as his teacher, Couture; but in the fullness of time Manet became regarded as much the greater painter. Holmes, Brandeis, Cardozo, and Hand are examples of judges who succeeded by their example in altering the norms of opinion writing.3 2. Hermione Lee, Edith Wharton 563 (2007).

3. Richard A. Posner, How Judges Think 6263 (2008). Learned Hand also described the judge as a kind of artist. About the judge's role in interpreting statutes he said: "Why isn't it in the nature of an art? It is a bit of craftsmans.h.i.+p, isn't it? It is what a poet does, it is what a I shall call the literary dimension of a judicial opinion its "style," distinguis.h.i.+ng "style" from conceptual content on the one hand and "rhetoric" on the other. The conceptual content of an opinion is its paraphrasable content, the part of the opinion's meaning that is not lost when it is put into different words from those employed by the author. The facts, the holdings, the dicta, the conclusion-these can all be paraphrased, and the paraphrase will convey a lot more than it would in the case of a short poem. If you paraphrased Keats's "Ode to a Nightingale" you might come up with the same trite summary as you would if you paraphrased "The Wild Swans at Coole": the narrator, contemplating avian beauty, is moved to the reflection that although people die, and individual birds too of course, nature as symbolized by the swan or the nightingale is immortal. But the force of the two poems lies elsewhere and their effects on the reader are dissimilar. The beauty of the nightingale's song reconciles the narrator of the "Ode to a Nightingale" to death (something so much lovelier and happier will live on forever), while "The Wild Swans at Coole" presents nature as composing the cool, formal-and silent-pattern of a work of art. The imagery and tone of the poems are different and as a result their meanings differ despite the similarity of their overt themes.

"Rhetoric," as I shall mainly use the term, refers to stylistic devices used to persuade readers or listeners to believe or to do something. Aristotle used the term to refer to all persuasive devices, not just stylistic ones, employed in areas of inquiry in which logical or scientific proof is unavailable. By thus enlarging rhetoric's scope to include the propositional meaning and truth value of a speech or writing as well as its form, he swept in authority, anecdote, a.n.a.logy, and every other mode of reasoning used to establish the probable truth of a proposition when exact demonstration is impossible.4 Some law and literature scholars use "rhetoric" even more broadly, as a term of high approbation inseparable from morality and signifying humanistic values set over against the supposedly heart- sculptor does. He has some vague purposes and he has an indefinite number of what you might call frames of reference among which he must choose." Remarks of Judge Learned Hand, in "In Commemoration of Fifty Years of Federal Judicial Service by the Honorable Learned Hand," 284 F.2d 5, 2829 (1959).

4. See discussion and references in Essays on Aristotle's Rhetoric (Amelie Oksenberg Rorty ed. 1996), and in Richard A. Posner, Overcoming Law, ch. 24 (1995) ("Rhetoric, Legal Advocacy, and Legal Reasoning").

*less rationality of social-scientific a.n.a.lysis.5 This fusion of content and style, of the ethical and the aesthetic, is of a piece with the proclivity of the law and literature movement for ethical criticism, the subject of chapter 12. But the most common everyday meaning of "rhetoric," a meaning that comes down to us from Plato's dialogue Gorgias, carries the opposite valence: rhetoric as empty verbiage ("that's just rhetoric").

The first and last meanings of "rhetoric"-persuasive style and empty verbiage-connect to the meaning that I have a.s.signed to "style." When defined as the choice made among the various options for encoding the paraphrasable content of a writing, style is the smooth capsule or the flavor additive that makes the medicine easier to swallow and hold down- or that makes some readers want to throw up. But it is also the earmark of "good" writing (that is, not "just rhetoric"), whether or not the writing has any persuasive purpose other than to keep the reader reading to the end. One judicial opinion might be better than another not because the argument was more persuasive but because by candidly disclosing the facts and authorities tugging against its result, by being tentative and concessive in tone, even by openly confessing doubt about the soundness of its result, it was a more credible, a more impressive judicial doc.u.ment, though not a more convincing defense of the outcome.

With the acknowledgment that there are better or worse ways of writing up the same idea or other message, we enter the domain of handbooks of style.6 These contain all sorts of useful precepts that judges, and their See, for example, Ferguson, note 1 above, at 213216; Peter Read Teachout, "Lapse of Judgment," 77 California Law Review 1259, 12901295 (1989); Robert A. Prentice, "Supreme Court Rhetoric," 25 Arizona Law Review 85 (1983).

See, for example, Joseph M. Williams, Style: Ten Lessons in Clarity and Grace (1981). There actually are handbooks of judicial style, which parallel the general style handbooks. American Bar a.s.sociation, Judicial Opinion Writing Manual: A Product of the Appellate Judges Conference, Judicial Administration Division, ch. 3 (1991); Ruggero J. Aldisert, Opinion Writing, pt. 3 (1990); Federal Judicial Center, Judicial Writing Manual 2126 (1991); Joyce J. George, Judicial Opinion Writing Handbook, ch. 4 (3d ed. 1993). There is also an annual, The Scribes Journal of Legal Writing, and a fine treatise, Bryan Garner, with Jeff Newman and Tiger Jackson, The Redbook: A Manual on Legal Style, 11 (2d ed. 2006), both devoted to improving legal writing. See also references in Brian J. Foley and Ruth Anne Robbins, "Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections," 12 Rutgers Law Review 459 n. 2 (2001). A good textbook of lega*ghostwriters, the law clerks, regularly ignore.7 They ignore them partly because judges and lawyers tend to disdain "fine" writing, thinking it unprofessional, "literary," affected, overrefined. A distinguished federal judge begins his comment in a symposium volume on narrative and rhetorical methods by saying, "I am a judge. I know nothing of the theories of narrative and of literary criticism of law. I wondered why I was invited to contribute to this volume."8 Then he tells a story, and very well too. But the point of the story, as of his comment as a whole, is that judges should forgo the "quest after persuasive power or beauty" in favor of "clear a.n.a.lysis and clear transmission of its message" (p. 207). He is caustic about judges who, "see[ing] themselves brus.h.i.+ng up against immortality . . . spurn the vulgar tongue and use sonorous forms that will resonate in history" (p. 208). Right on. But beauty and sonority are not synonyms; nor is clarity incompatible with rhetorical power. One can be as "professional" as one likes and still avoid infelicities that impair readability with no offsetting benefit.

Style as discretionary (as underdetermined by content, by meaning), and style as writing well, point to a third aspect of style-style as "literary." Writings count as literature when they can be detached from the setting in which they were created. Style is one of the features of written expression that facilitates this portability; for style is often less local, less time- and place-bound, than content (though sometimes more-style can be an impediment to understanding). Rhyme and meter, the most musica*writing is Richard K. Neumann Jr. and Sheila Simon, Legal Writing (2008). Prospective law clerks would benefit from reading it.

Such precepts as: go easy on adjectives, adverbs, italics, and other modifiers, qualifiers, and intensifiers; alternate (irregularly, not metronome style) long and short sentences; try not to end a paragraph with a preposition; go easy on parenthetical and other qualifying phrases; try to begin and end sentences with important words, because the first and the last positions in a sentence are the most emphatic; avoid jargon and cliches; punctuate for clarity rather than to conform to grammarians' fusty rules for the placement of commas and other punctuation marks; be clear; go easy on quotations, especially long block quotations; pay some attention to the music of sentences; don't strain to avoid ever splitting an infinitive; and disregard deservedly obscure and un.o.bserved rules of grammar, such as never begin a sentence with "but" or "and."

Pierre N. Leval, "Judicial Opinions and Literature," in Law's Stories: Narrative and Rhetoric in the Law 206 (Peter Brooks and Paul Gewirtz eds. 1996).

*features of poetry, have an appeal that being nonverbal is not tied to the local culture out of which the poetry emerged. We might have lost interest in a particular legal issue discussed in a judicial opinion yet the style of the opinion may make us want to read it anyway, and then the opinion will have outlived the occasion of its creation.

The effect of style on portability is a factor in judicial reputations. Even a brilliant a.n.a.lysis of yesterday's legal problems is unlikely to hold much current interest, especially since a major effort at historical reconstruction may be required to determine that it is brilliant. The vivid and therefore memorable opinion is not chained to the immediate context of its creation. It can be pulled out and made to exemplify law's abiding concerns.9 Two writers' styles can resemble each other yet one will be superior because the writer has avoided the pitfalls against which the handbooks warn or because he is a gifted writer-a person who writes well without regard to, and often while defying, the codified rules. Styles can differ in kind as well as quality. This is the domain of style as signature, as "voice." We recognize a person by his or her voice in both the literal and the figurative senses of the word. When judges were thought (and perhaps thought themselves) to be oracles, the ideal judicial voice would have sounded like the voice of G.o.d.

The idea of style as voice plays a rationalizing role in the contemporary scandal, as some think it to be, of the delegation of opinion writing to law clerks. If you try to embarra.s.s a professor of const.i.tutional law by saying, "What are you doing teaching 'opinions' written by recent law-school graduates? Why not just teach the answers they gave to your exam questions?" the professor is apt to reply defensively: "I know that Justice X or Justice Y delegates much of the opinion writing in his chambers to his law clerks, and yet each chambers has a distinctive 'voice.' X's opinions don't sound like Y's-they sound like X's, even though written by a constantly reshuffled deck of law clerks. The voice of the judge is audible." Everything in the imaginary rejoinder is true except the last sentence. Law clerks often prepare for their job by reading their boss's old opinions 9. See, for example, Robert A. Hillman, "'Instinct with an Obligation' and the 'Normative Ambiguity of Rhetorical Power,'" 56 Ohio State Law Journal 775 (1995).

(sometimes he tells them to), and they model their own opinion-writing style on them. By this process a chambers style, not perhaps very distinctive but distinctive enough to be recognizable, evolves. All that this shows is that style, like intention, can be a corporate attribute.

Consider once again the couplet that concludes the first stanza of Yeats's great poem "The Second Coming." Here is the stanza in full: Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of pa.s.sionate intensity.

The concluding couplet, I noted in the last chapter, has seemed an uncanny prophecy of the relation between the appeasing democracies and their fascist challengers in the 1930s. It could describe the situation in American universities during the student uprisings of the late 1960s. Other readers will supply other referents.10 Historical confirmation to one side, it strikes the reader with a self-evident sense of rightness. One reason is meter. The couplet, like most of the rest of the stanza, is in iambic pentameter. The slight lilt imparted by the meter gives the couplet a faintly incantatory quality that increases its power, as does its placement at the end of the stanza, that is, in the normal position for a conclusion, as if the poet had set forth premises that led up to it-which the preceding lines do not; instead they present a cascade of images. Nevertheless the "conclusion" gains authority from being presented as the culmination of an emotionally powerful vision. Its authority is further enhanced by the absence of qualification. Yeats does not say that some of the best people are perhaps this and many of the worst doubtless that; he does not hedge. Few people dare to speak plainly, so when we hear a plain speaker we 10. One of the pa.s.sages that I quoted from A Frolic of His Own in chapter 1 contains two (unremarked) quotations from "The Second Coming."

*tend to give him a measure of trust-only a big man, we might say, would put it so bluntly, without equivocations that he could retreat behind if attacked. And notice the absence of "poetic" diction in these two lines in contrast to the preceding ones. It's as if the poet, overwhelmed with sudden insight, had been moved to drop all poetic craft in order to announce his revelation. Notice, too, the contrast between the multisyllabic, sibilant richness of "pa.s.sionate intensity" and the clipped matter-of-factness of "lack all conviction." We are made to feel the stronger emotions of the "worst" people, and this somehow makes us more convinced of the opposition a.s.serted by the poet.

Well, you may say, a child might be taken in by such tricks, but surely an adult reader would not be persuaded by what is, from a rational standpoint, a naked a.s.sertion. But persuasiveness is not the issue. It is not even clear who the "best" and the "worst" are. Yeats used poetic art to create an emotionally powerful image which is then available to readers as a template for organizing their own insights. He is writing, we might say, for the prepared reader.

The rhetoric of "The Second Coming" is not forensic, but the forensic tradition in literature is very old. It can be traced to Book I (1ines 1924) of the Iliad-Chryses' plea to Agamemnon to restore his daughter to him, a compressed lawyerlike pleading: Agamemnon, Menelaus-all Argives geared for war!

May the G.o.ds who hold the halls of Olympus give you Priam's city to plunder, then safe pa.s.sage home.

Just set my daughter free, my dear one . . . Here, accept these gifts, this ransom. Honor the G.o.d who strikes from worlds away-the son of Zeus, Apollo!

The carrot and stick are neatly tendered-carrot first, the more courteous sequence. Chryses asks the G.o.ds to bestow victory and a safe return home on the Greeks in general and Agamemnon and his brother Menelaus in particular. Since Chryses is a priest, the invocation of divine a.s.sistance is not an empty gesture. To make a.s.surance doubly sure, Chryses offers a more tangible and immediate benefit as well, one that requires no divine intervention-a ransom. The offer comes right after the request to free Chryseis, thus underscoring the element of quid pro quo. Chryses ends his plea by pointedly, though as before courteously, suggesting that by accepting his offer the Greeks will be conciliating a powerful G.o.d, Zeus's son who shoots from afar, Apollo-who, not incidentally, is Chryses' patron. The Greek words for far-shooter Apollo, which are given emphasis by their placement at the end of a line and the end of Chryses' plea, have the ominous sound of a peal of thunder (hekebolon Apollona).11 Another splendid Homeric example of persuasive pleading is found in Book VI (lines 163203) of the Odyssey. s.h.i.+pwrecked on the way home to Ithaca after his 20-year absence, Odysseus is washed ash.o.r.e near the mouth of a river in the island kingdom of Scheria-naked, filthy, exhausted, alone. He encounters the princess of Scheria, Nausicaa, who had come down to the river with her attendants to wash clothes. The attendants flee when they see this repulsive apparition but Nausicaa stands her ground. Odysseus wants clothing and eventually a.s.sistance in getting home, but he has no way to prove who he is or what his intentions are. So how is he to persuade Nausicaa to help him?

He begins with a heavy dose of flattery. He asks her whether she is a G.o.ddess or a mortal; if the latter, then, so fair is she, "three times blest are your father, your queenly mother,/Three times over your brothers too." But "he is the one / more blest than all other men alive, that man / who sways you with gifts and leads you home, his bride! / I have never laid eyes on anyone like you,/neither man nor woman .../I look at you and a sense of wonder takes me." After more in this vein Odysseus finally mentions his plight: "pain has ground me down." He explains briefly that he was s.h.i.+pwrecked, adding that he doesn't think his torments are ended. Only then-three-fourths of the way through his speech-does he ask Nausicaa to help him, pointing out that he knows no one on the island. All he asks is that, a.s.suming that the clothes she and her attendants brought to the river to wash were wrapped in something, she give him the wrapper to cover his nakedness and that she show him where the city is. The request is stated briefly-in only six lines-and Odysseus then changes the subject from himself back to her: "may the good G.o.ds give you all your heart desires," specifically a husband and a home.

11. The pattern of long ($) and short (%) syllables in these two words is % $ % % $ $ $ $.

*Since Odysseus cannot pay Nausicaa for helping him, he must place her in a donative mood. A gift is likelier the more the donor's wealth exceeds the suppliant's. People place a much higher value on their own welfare than on that of a stranger, so only if they are much better off are they likely to gain more utility from the stranger's consumption of part of their wealth (broadly defined to include their time, the information they might impart, or anything else of possible value to a donee) than they would from their own consumption of it. That may be why Odysseus devotes the first part of his speech primarily to establis.h.i.+ng how wealthy Nausicaa will soon be because her loveliness will get her a wealthy husband, one who will outdo her other suitors in giving her fine bridal gifts. Having established the disparity in their wealth (he doesn't have to persuade Nausicaa of his present poverty, obvious from his appearance), he emphasizes how slight the cost is of the gift he is asking for (a rag and a bit of information). Even so, he offers compensation by ending his speech with wishes for Nausicaa's happiness. Good wishes are worth little, but a small benefit can offset a small cost.

The first part of Odysseus's speech has the additional function of rea.s.suring Nausicaa concerning the speaker's character. By pretending to be unsure whether she is mortal or divine, Odysseus is trying to allay the fear that the sight of this dirty and naked man must have engendered in her and that might cause her, like her attendants, to flee; for a mortal, like himself, would not attack a divinity. And by heaping praise on Nausicaa, Odysseus shows himself to be courteous, respectful, and articulate. He uses civilized words to offset an uncivilized appearance. And by doing so he signals that he may not be what he seems-he may be, as in fact he is, a powerful man temporarily down on his luck, hence someone who might in the future be in a position to repay Nausicaa's kindness to him. So there is a hint of reciprocal altruism. And a little flattery never hurts; it is enjoyed even when disbelieved.12 Odysseus's speech is at once highly literary and, even though it conveys little information of a conventional sort, highly rational as well. The appearance of paradox in this statement comes from the familiar but ex 12. For further a.n.a.lysis of the rhetorical ingenuity of Odysseus's speech to Nausicaa, see Irene J. F. de Jong, A Narratological Commentary on the Odyssey 159161 (2001).

aggerated ant.i.thesis between reason and emotion. Emotions direct and intensify attention (as in Samuel Johnson's quip that the prospect of being hanged concentrates the mind wonderfully), furnish motivation, nurture intuition, and stimulate the imagination (including the empathetic imagination, which gives us insight into other people's feelings), while reason furnishes triggers to and disciplines emotion as well as providing a coolly a.n.a.lytical alternative to emotional reasoning.13 Compa.s.sion is an emotion that can be activated by the combination of a large disparity in wealth with a modest request for succor by the impoverished person- more precisely, that can be activated by information about these things. Odysseus's speech conveys that information in a winning way, by the weighting and ordering of the points that he needs to make in order to maximize the likelihood that his plea will be well received.

The persuasive pleading of a Chryses or an Odysseus belongs to advocacy rather than to the articulation of the decision by the judge or other decision-maker whom the advocate is addressing, and so I defer further discussion to the chapter on how literature can improve the practice of law (chapter 11). But a judicial opinion tries to persuade too-persuade its readers, including the authoring judge's colleagues, the judges of higher and lower courts, the legal profession, the parties, and sometimes the media, that the court has reached the right decision. Judges might be able to learn from immersion in literature how best to persuade.

I say "from immersion in literature" rather than "from occasionally reading a good book" because the only paths to writing well are innate writing talent, varied experience in writing, a literary education beginning at an early age, and heavy reading of fine writing. Occasional reading of literature will not alter the neural circuits involved in writing; and following handbooks of style, while it will correct the worst habits of bad writers, will leave their writing lifeless.

A judicial opinion contains description as well as persuasion, so here is an example of literary style in the service of legal description. It is from 13. See, for example, Peter A. Facione and Noreen C. Facione, Thinking and Reasoning in Human Decision Making: The Method of Argument and Heuristic a.n.a.lysis 25 (2007); and with reference to the judicial process, Posner, note 3 above, at 106117, and Paul Gewirtz, "On 'I Know It When I See It,'" 105 Yale Law Journal 1023 (1996).

*Philip Roth's novel Operation Shylock (1993). Someone is impersonating the narrator (confusingly named Philip Roth). The narrator confronts the impostor: "You're involved in a deceptive practice . . . You're breaking the law." "Which law? Israeli law, Connecticut state law, or international law?" "The law that says that a person's ident.i.ty is his private property and can't be appropriated by somebody else." "Ah, so you've been studying your Prosser." "Prosser?" "Professor Prosser's Handbook of the Law of Torts." "I haven't been studying anything. All I need to know about a case like this common sense can tell me."

"Well, still take a look at Prosser. In 1960, in the California Law Review, Prosser published a long article, a reconsideration of the original 1890 Warren and Brandeis Harvard Law Review article in which they'd borrowed Judge Cooley's phrase 'the general right to be let alone' and staked out the dimensions of the privacy interest. Prosser discusses privacy cases as having four separate branches and causes of action-one, intrusion upon seclusion; two, public disclosure of private facts; three, false light in the public eye; and four, appropriation of ident.i.ty." (p. 75) This is a deliciously terse and lucid introduction to the common law of privacy. Later the impostor acknowledges: "Yes, the law is on your side. Who says no? I wouldn't have undertaken an operation on this scale without first knowing in every last detail the law that I am up against. In the case of Ona.s.sis v. Christian Dior-New York, Inc., where a professional model, a Jackie Ona.s.sis look-alike, was used in advertis.e.m.e.nts for Dior dresses, the court determined that the effect of using a look-alike was to represent Jackie Ona.s.sis as a.s.sociated with the product and upheld her claim. In the case of Carson v. Here's Johnny Portable Toilets, a similar decision was reached. Because the phrase 'Here's Johnny' was a.s.sociated with Carson and his TV show, the toilet company had no right, according to the court, to display the phrase on their portable toilets. The law couldn't be any more clear: even if the defendant is using his own name, he may be liable to prosecution for appropriation if the use implies that some other famous individual of that name is actually being represented." (pp. 8081) If only judges would write with such dash, grace, economy, and simplicity! It might not be the worst way of teaching good writing to judges and lawyers to a.s.semble an anthology of descriptions of legal doctrine found in works of imaginative literature, though the improvements, as from any belated education, are likely to be modest.

There have been some fine judicial stylists; and let us start at the top, with Holmes's dissent in Lochner v. New York.14 The Supreme Court's decision invalidated, as a deprivation of liberty without due process of law, a state statute limiting the hours of work in bakeries. The most famous sentence in Holmes's dissent-one of the most famous in the history of law and almost as precious to those of us who think the statute bad policy as it is to advocates of regulating the employment relation-is: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." This proposition is offered without proof; and it is also possible to agree with it yet think the case correctly decided. Somehow these points seem not to detract from the authority of the dissent, now a century old. The number of opinions that survive from that period is minuscule, and a disproportionate number of them were written by Holmes. Yet we shall see that Holmes's opinion is not well reasoned. What then is the source of its power?

Here is the full text of the opinion: I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent. This case is decided upon an economic theory which a large part 14. 198 U.S. 45, 74 (1905). For other discussions of the rhetoric of Lochner (not limited to Holmes's dissent-and conceiving of "rhetoric" more broadly than I do), see Forum, Rhetorical Criticism of Legal Texts: Four Rhetoricians on Lochner v. New York, 23 Hastings Const.i.tutional Law Quarterly 619 (1996).

*of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state const.i.tutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a s.h.i.+bboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or munic.i.p.al inst.i.tution which takes money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Ma.s.sachusetts vaccination law. Jacobson v. Ma.s.sachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago we upheld the prohibition of sales of stock on margins or for future delivery in the const.i.tution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a const.i.tution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Const.i.tution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed [opposed?] would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be pa.s.sed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not p.r.o.nounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

After setting a properly serious and deferential tone in the first sentence, Holmes makes a startling accusation-"This case is decided upon an economic theory which a large part of the country does not entertain." He does not elaborate. The reader is told neither what the economic theory is nor the relevance of the fact (which is not elaborated either) that a large part of the country does not accept it. The force of this opening sally lies in the a.s.surance with which it is made. It places the reader on the defensive; dare he question a statement made with such serene conviction? An ordinary judge would say something like, "I respectfully but earnestly dissent from the majority's unwarranted subst.i.tution of its own views of public policy for the more flexible mandate of the Const.i.tution," and would follow up with pages of argument and citation. Holmes's method is more effective because, as with "The Second Coming," in areas where our own knowledge is shaky we tend to take people at their self-estimation and thus to give more credence to the confident statement than to the defensive one.

A speaker's effort, at the outset of the speech, to make himself seem like the kind of person who can be trusted to tell the truth is what cla.s.sical rhetoricians called the "ethical appeal." The next sentence in Holmes's dissent ("If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind") continues the ethical appeal. The ordinary judge would say something like "My *personal views on the truth of the majority's economic theory are irrelevant." That is the paraphrasable content of Holmes's sentence. But by putting it the way he does he slips in the additional suggestion, which makes the sentence more credible, that he is slow to jump to conclusions. It is a masterful touch. And false. Holmes was not slow to jump to conclusions, and had as a matter of fact made laissez-faire his economic philosophy years earlier.15 He doubtless thought the statute invalidated in Lochner nonsense. Many judges, when voting to uphold a statute they dislike, will acknowledge-even emphasize-their dislike in order to make themselves sound impartial. That is a type of ethical appeal, but too blatant and self-congratulatory-the judge bragging, Angelo-like, about his selfdiscipline-to seem sincere. Holmes's method is subtle and disarming. It puts one in mind of the plain style that George Orwell deployed so effectively. The "I" in Orwell's essays and journalism is not Eric Blair (Orwell's real name); it is the very model of a plain-speaking, decent, honest Englishman. The plain style is often, and in these examples, an artifice of sophisticated intellectuals.16 The idea that if Holmes had thought that the case properly turned on an economic theory he would have studied the theory is a fantasy. The implied author of the Lochner dissent is not the real Oliver Wendell Holmes.

Meanwhile the reader's suspense is building to find out what Holmes thinks the "economic theory" of the majority is, since the majority opinion does not use any such term. (Holmes, like Antony [see chapter 11], uses suspense to rhetorical effect.) We discover that it is indeed the theory of laissez-faire, "which has been a s.h.i.+bboleth for some well-known writers, [and which] is interfered with by school laws, by the Post Office, by every state or munic.i.p.al inst.i.tution which takes [the citizen's] money."

See Robert W. Gordon, "Holmes' Common Law as Legal and Social Science," 10 Hofstra Law Review 719, 740 (1982); Joseph Frazier Wall, "Social Darwinism and Const.i.tutional Law with Special Reference to Lochner v. New York," 33 Annals of Science 465, 475476 (1976).

James Arnt Aune, "On the Rhetorical Criticism of Judge Posner," 23 Hastings Const.i.tutional Law Quarterly 658, 668 (1996), remarks "the similarity of [Holmes's] prose style [in the Lochner dissent] to that of Emerson's: they share the common characteristics of a lack of linear progression, a preference for the sentence rather than the paragraph as the unit of thought, and the simultaneous affectation of simplicity and cosmopolitan irony."

Observe the understated derision in "s.h.i.+bboleth" and how it is reinforced by characterizing the advocates of laissez-faire, with some exaggeration, as people who would abolish the Post Office. (Holmes does not say, who would privatize the Post Office.) This derisive characterization provides the lead-in to the climactic sentence of the opinion, the one about Herbert Spencer-one of the "well-known writers"-which gains its force from its concreteness. How much weaker the sentence would have been if for "Mr. Herbert Spencer's Social Statics" Holmes had written "laissez-faire," or even if for "enacts" he had written "adopts." The absurdity of the idea that the Const.i.tution would enact a book with a weird t.i.tle, written by a foreigner, lends emotional force to the sentence and-my essential point-operates as a subst.i.tute for proof. Holmes makes Spencer's book a metaphor for laissez-faire. And metaphors, because of their concreteness, their vividness, and, when they are fresh, their unexpectedness, are more memorable than their paraphrases. That is one reason the dissent in Lochner not only contributed to the s.h.i.+ft of opinion that culminated many years later in the repudiation of "Lochnerism" but also became the symbol of opposition to the judicial philosophy reflected in the majority opinion.

And because Holmes's dissenting opinion is so short, there is no danger that the key sentence, the sentence about Herbert Spencer, will be missed. Brevity is a risk in persuasive speech but also an opportunity. The brevity of Holmes's dissent focuses and commands the reader's attention. The varying lengths of the sentences and the graceful rhythm of the long ones enhance the opinion's charm, while the concentrated power of the aphorisms-not only the one about Herbert Spencer but also "general propositions do not decide concrete cases" and "every opinion tends to become a law"-gives the opinion a power it would lack if it were longer and more diffuse, burying the aphorisms under qualifications, citations, quotations, legal jargon, numbing factual detail, and the other common padding of judicial opinions.

After dispatching Spencer, Holmes does at last marshal some support for his position, beginning with the case in which the Supreme Court had recently sustained a compulsory vaccination law (Jacobson). The case is inapposite. Vaccination confers what economists call an external benefit; it protects not only the person vaccinated but also persons who might *otherwise have caught the disease from him. Compulsory vaccination is therefore consistent with most versions of laissez-faire-as is an ant.i.trust law (so his citation of Northern Securities is also inapposite)-while a law fixing maximum hours of work is paternalistic and therefore inconsistent with it. The other two cases that Holmes cites are to the point, and he could have cited several more. But instead he returns to first principles, remarking that a const.i.tution "is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Const.i.tution of the United States." The majority had never said it ought to. It had said that the statute was an unreasonable interference with freedom of contract. About this virtually all Holmes says is that "a reasonable man might think it a proper measure on the score of health."

Would the dissent in Lochner have received a high grade in a law school examination in 1905? I think not. It is not logically organized, does not join issue sharply with the majority, is not scrupulous in its treatment of the majority opinion or of precedent, is not thoroughly researched, does not exploit the factual record, and is unfair to Herbert Spencer, of whom Americans nowadays know no more than what Holmes told them in the Lochner dissent. The dissent also misses an opportunity to take issue with the fundamental premise of the majority opinion, which is that unreasonable statutes violate the due process clause of the Fourteenth Amendment; the dissent is silent on the origin, purpose, and scope of the amendment. Indeed, at the end of his opinion Holmes seems to concede the majority's fundamental (and contestable) premise that the due process clause outlaws unreasonable legislation and to disagree merely with the conclusion that New York's maximum-hours law is unreasonable. The sweeping a.s.sertions at the beginning of the dissent are thus discordant with its conclusion. Read as a whole, the opinion does not clearly challenge Lochnerism but just the abuses of Lochnerism. It is not, in short, a good judicial opinion.17 It is merely the greatest judicial opinion of the last hundred years.

17. The view of a distinguished const.i.tutional scholar: see David P. Currie, The Const.i.tution in the Supreme Court: The Second Century: 18881986 82 (1990).

To judge Holmes's dissent in Lochner by scholarly standards of quality-logical consistency, fair characterization of opposing views, thorough research, and the rest-is to miss the point. It is a rhetorical masterpiece, and rhetoric counts for a lot in law because many legal questions cannot be resolved by logical or empirical demonstration. After all these years, it remains uncertain whether Lochner was decided incorrectly.18 By striking down paternalistic statutes (though only fitfully) until finally overwhelmed by political pressures in the late 1930s, the Supreme Court may have made the United States marginally more prosperous than it would otherwise have been. The doubt whether the Fourteenth Amendment was intended to authorize the kind of freewheeling federal judicial intervention in the public policy of the states that Lochner has come to symbolize as a result of Holmes's dissent is no greater than the doubt about the freewheeling federal judicial intervention of the last half-century in the public policy of the states in such areas as abortion, capital punishment, h.o.m.os.e.xual rights, and legislative apportionment-which is why Roe v. Wade is widely regarded as the second coming of Lochner. Those who think "Lochnerism" (a word whose currency is due to Holmes's dissent) bad law continue to draw comfort and support from the dissent's enchanting rhetoric.

The dissent in Lochner is more than a symbol, however, and more than a tour de force. The second sentence-"This case is decided upon an economic theory which a large part of the country does not entertain"- was one of the opening salvos in the legal realist movement, which taught that many cases are decided on the basis not of neutral legal principles but of the judges' intuitions, values, and political or policy preferences.19 Holmes had said such things before he was appointed to the Supreme Court,20 but for a Supreme Court Justice to say them carried greater weight. The characteristic abruptness of Holmes's opinions, including the dissent in Lochner, is consistent with his "realist" belief that the decision of a closely balanced case is a policy judgment that is often little bet 18. See, for example, Bruce Ackerman, We the People, vol. 1: Foundations 66 (1991); Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 108109, 128, 280281 (1985).

See Posner, note 3 above, at 112113, and references cited there.

See, for example, Holmes, "The Path of the Law," 10 Harvard Law Review 457 (1897).

*ter than a guess because of lack of critical information, rather than the end of a logical chain of verified facts and cogent reasons. The Lochner dissent does not make its points by carefully marshaling the facts and authorities, yet we do not miss these things.

Reason cannot decide the most difficult cases-if it is equated to logic. But that is too austere a conception of reason. Between the extremes of logical and scientific persuasion on the one hand and emotive persuasion on the other are a variety of methods for inducing belief that are rational though not rigorous. This is the domain of practical reason ("rhetoric" in the broad Aristotelian sense mentioned at the outset of this chapter).21 It includes appeals to common sense, to custom, to precedents and other authorities, to tradition, to intuition, to inst.i.tutional considerations, to history, to consequences, and to the test of time. Traces of some of these methods can be discerned in the Lochner dissent. But the power of the opinion lies in its rhetoric (narrowly defined), which compels the reader's attention and shocks him into reconsidering his const.i.tutional intuitions.

I antic.i.p.ate the objection that Holmes's rhetorical tricks in Lochner are tolerable only because we think his legal position either correct (the dominant view) or defensible, and that if he performed such tricks in support of an outrageous result his skillful use of rhetorical devices would only make us more indignant. Yet Buck v. Bell, which I discussed in chapter 5, is an eloquent and moving opinion even if one is revolted by the author's evident enthusiasm for the eugenic breeding of human beings, just as The Triumph of the Will is a great film even though it is n.a.z.i propaganda. Here is the heart of the opinion: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that 21. See my book The Problems of Jurisprudence, chs. 23 (1990).

sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.22 Buck v. Bell would be a poorly reasoned, a brutal, and, to a modern sensibility,23 a vicious opinion even if Carrie Buck really had been an imbecile. But it is a first-cla.s.s piece of rhetoric-sparkling, pa.s.sionate, topped off by a memorable aphorism. That does not redeem the decision, any more than a sound decision is invalidated by being poorly written.24 But clear thinking about art, including literary art, including the literary art occasionally displayed in judicial opinions, requires distinguis.h.i.+ng aesthetic from moral qualities (a theme to which I return in chapter 12).

Lochner is atypical of judicial opinions in lacking a narrative of the facts of the case, but it is a dissent and Holmes evidently saw no reason to amplify the factual statement in the majority opinion. His opinion in Buck v. Bell is a majority opinion, but the narrative portion is brief and contributes little to the opinion's force. Most majority opinions in American courts are organized as stories, however, with a beginning, a middle, and an end in roughly chronological order.25 A full discussion of judicial style, as of the style of a poem, short story, or novel, must therefore consider the order in which material in an opinion is presented (as I emphasized the order of presentation in Odysseus's plea to Nausicaa), and not just voice, vocabulary, cadence, sentence structure, metaphor, and other elements of style that are independent of the organization of a writing.

I reserve discussion of the narrative element of the judicial opinion for chapter 11, where I discuss legal narrative in a broader context, except to raise the following question: Would a judge, especially but not only one who wanted to write his own opinions rather than just rewrite or edit 22. 274 U.S. 200, 207 (1927) (citation omitted).

An important qualification: belief in eugenics, and in sterilization as a means to achieving the objectives of eugenics, was widespread in respectable intellectual circles in the period in which Buck v. Bell was decided. See index references to "eugenics" and "sterilization" in Elazar Barkan, The Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States between the World Wars (1992). It was the n.a.z.i practice of eugenics, which Holmes could not have foreseen, that discredited the eugenics movement.

See John Fischer, Note, "Reading Literature/Reading Law: Is There a Literary Jurisprudence?" 72 Texas Law Review 135, 148150 (1993).

25. The story character of judicial opinions is emphasized in Leubsdorf, note 1 above.

*opinions drafted by his law clerks, benefit from taking a course in creative writing, one that focused on the short story because it is the literary genre most akin to the judicial opinion? Such courses are numerous, and are even offered by distinguished universities online.26 A judicial opinion is a more constrained writing project than a short story, but the elements fundamental to the two types of composition are the same: maintaining awareness of audience, building to a punch line, maintaining a degree of suspense (so that the reader will read attentively to the end and the opinion won't seem merely a rationalization of a preexisting decision), selecting the essential facts to include in the narrative and arranging them clearly and consecutively, and telling the story in a narrative voice that conveys authority and credibility. These are precepts that a creative writing instructor could convey to a judge more effectively than a law professor could, or for that matter even a judge who writes very well, as one can write well without being self-conscious about writing. The handbooks of legal style, even those heavily influenced by creative writing texts,27 are not good subst.i.tutes for the latter because the authors are not themselves creative writers or creative writing instructors. Nor are such texts a good subst.i.tute for a creative writing course, for it is only by trying his hand at creative writing that a student begins to learn how to write creatively. You can no more learn to write well just by reading a text on writing well than you can learn to speak a foreign language just by reading a grammar of the language.

Among judicial writers of note besides Holmes, John Marshall was a master of the magisterial style. Patient, systematic, unadorned, unemotional, unpretentious, it is the voice of reason-a quintessential Enlightenment style. A related characteristic of Marshall's opinions, remarkable in our 26. See, for example, "Getting Started in Creative Writing (Online)," Sept. 2008, University of Oxford, Continuing Education: Online Courses, http://onlinecourses.conted.ox.ac. uk/coursequeries.php?id=O08P358CRV (visited June 10, 2008). There are also self-teaching books on creative writing, such as Naming the World, and Other Exercises for the Creative Writer (Bret Anthony Johnston ed. 2007), and John Gardner, The Art of Fiction: Notes on Craft for Young Writers (1984). Judges are not young, but a few perhaps are young at heart.

27. Notably Foley and Robbins, note 6 above.

legal culture, is the absence of citations to previous decisions, American or English, though there were plenty he could have cited. Also related and also remarkable is Marshall's avoidance of legal jargon.

Whether such a style remains possible in a mature legal system is a matter of doubt; in any event Marshall has had few imitators. He had the advantage of interpreting the Const.i.tution when it was fresh, so that although he required great political wisdom he did not face so severe an interpretive problem as his successors. Nor did he have the modern judge's burden of negotiating a minefield of authoritative precedents.

The main issue in McCulloch v. Maryland was whether Congress had the power to create a bank as something "necessary and proper" to effectuate the legislative authority granted by Article I of the Const.i.tution. The Supreme Court held that it did. This conclusion required a flexible approach to const.i.tutional interpretation, and Marshall's formulation of that approach remains canonical: A const.i.tution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American const.i.tution is not only to be inferred from the nature of the instrument but from the language. Why else were some of the limitations found in the ninth section of the 1st article introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a const.i.tution we are expounding.28 28. 17 U.S. (4 Wheat.) 316, 407 (1819) (punctuation modernized). Marshall's italicization of "const.i.tution" in the last sentence shows that rules of style (for example, one should not italicize for emphasis)-like rules of grammar and, in a sense that should be familiar from chapter 3, rules of law-are made to be broken, though selectively, and perhaps only by masters. On *This is not flashy prose, but it is lucid, concise, and orderly, and builds nicely to the famous aphorism of the last sentence. Here is how Holmes made a similar point about the need for flexibility in const.i.tutional interpretation: When we are dealing with words that also are a const.i.tuent act, like the Const.i.tution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.29 Compared with Marshall, Holmes is downright racy. But he was not Chief Justice and was not writing when the Const.i.tutional Convention was a living memory. He also had literary flair, which Marshall did not. And by the time he wrote, American prose had become less formal.

One might suppose from my comparison of Marshall to Holmes that Marshall would have escaped the kind of academic censure that opinions like the Lochner dissent and Buck v. Bell invite. Not so. Here is Professor Currie's report card on Marshall's const.i.tutional opinions: . . . great rhetorical power, invocation of the const.i.tutional text less as the basis of decision than a peg on which to hang a result evidently reached on other grounds, a marked disdain for reliance on precedent, extensive borrowing of the ideas of others without attribution, an inclination to reach out for const.i.tutional issues that did not have to be decided, a tendency to resolve difficult questions by aggressive a.s.sertion of one side of the case, and an absolute certainty in the correctness of his conclusions.30 Marshall's style, see Christopher L. Eisgruber, "John Marshall's Judicial Rhetoric," 1996 Supreme Court Review 439.

29. Missouri v. Holland, 252 U.S. 416, 433 (1920).

30. David P. Currie, The Const.i.tution in the Supreme Court: The First Hundred Years: 17891888 74 (1985). Talk about disdain!

So despite his more sedate style, Marshall displays the same lack of judicial craftsmans.h.i.+p as Holmes. As these are probably the two greatest judges in our history, one is moved to ask whether it is the conception of craftsmans.h.i.+p that is deficient rather than the judges. Maybe the art of judging is inescapably rhetorical, and a failure to appreciate this is a shortcoming of the school of legal formalism, of which Professor Currie was an ill.u.s.trious member. Maybe some cases cannot be resolved otherwise than by "aggressive a.s.sertion of one side"-perhaps a balanced a.n.a.lysis would leave the court and reader in paralyzed equipoise.

Currie criticizes Marshall for faults in academic writing. But is one to understand from this that the best judicial opinion is the one that most closely resembles a good law review article? Judges do not work under conditions conducive to producing opinions of scholarly heft and depth. Because the jurisdiction of most courts is too broad to enable specialization, judges are bound to know less about each field of law than the professors in those fields know. The audience for judicial opinions, moreover, is not primarily an academic one. And the judge who wants to be effective is constrained for the most part to operate incrementally and thus to respect distinctions, traditions, colleagues' views, political realities, and whatnot that may make the professor impatient. The opinions of professors who become judges read like other judges' opinions rather than like law review articles. Above all, the judge is under the imperative duty to decide. He cannot wait for cert.i.tude to descend upon him.

So we should not expect a judicial opinion to read like a law review article. What we can expect (though our expectations will frequently be dashed) is a perspicuous, even dramatic, bodying forth of the judge's concerns; a lucid presentation of arresting particulars; a sense of the relatedness of these particulars to larger themes; a sense of the intellectual world outside of law; a sense of history and of the Zeitgeist; a point of view that transcends the litigants' parochial concerns; a power of clear and forceful statement; a high degree of sensitivity to the expectations of the audience; a taste for brevity (if only out of consideration for the busy professional audience for judicial opinions); and a leavening of wit. All are virtues a.s.sociated with imaginative literature. Pursuing the literary a.n.a.logy, we may say that a prime virtue of a judicial opinion is wit in the eighteenth-century sense of what oft was thought but ne'er so well expressed. The themes in a judicial oeuvre are not novel, and they are played *in cases randomly served from the docket. The opinion writer's skill lies in making each of them a memorable exemplar of an issue, problem, or approach. It is a literary skill, and most law professors are reluctant to acknowledge that so "unprofessional" a skill as literary writing ability could be an element of judicial greatness. A lawyer may admit that law is sometimes poetry but is unlikely to admit that poetry is sometimes law.

Of Brandeis one may say with more justice than T. S. Eliot said of Milton that his style has had a bad influence on his successors. Here is the central pa.s.sage from one of his most famous opinions, the dissent in Olmstead, the case (later overruled) which held that wiretapping was not a search or seizure within the meaning of the Fourth Amendment: The makers of our Const.i.tution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone- the most comprehensive of rights and the right most valued by civilized men.31 The jackhammer style (sentences of roughly equal length, starting the same way, and full of lists-"their beliefs, their thoughts, their emotions." and so on-and repet.i.tion, notably of "they" and "their") conveys a distracting sense of Brandeis's own excitement, making readers wonder whether he may not have been projecting onto the long-dead framers his own vision of a just society (he was). A hectoring style, it grabs the reader by the lapels and shouts in his face, demanding a.s.sent rather than engaging the reader in a discussion. A discordant style in which to celebrate the cla.s.sical liberal ideal of personal autonomy, it is also easily imitable 31. Olmstead v. United States, 277 U.S. 438, 478479 (1928). With Brandeis's dissent compare Holmes's characteristically terse and eloquent dissent describing the government's illegal wiretapping as "dirty business," and stating, "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ign.o.ble part." Id. at 469471. Notice the legal realist flavor of "We have to choose, and for my part . . ."

and is the model for the windy jeremiads found in so many modern judicial dissents.

Compare the style, at once more rational (less "rhetorical") and more pungent, of this pa.s.sage from an opinion by Justice Robert Jackson protesting his colleagues' willingness to sit in judgment on state supreme court decisions involving the rights of criminal defendants: "Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of ou