Should Judges Write Their Own Opinions Or Leave Drafting To Their Law Clerks?
The vast majority of federal judges -- as high as 95 percent, according to one study -- delegate to their law clerks the task of drafting judicial opinions. In other words, most judges don't write their own opinions; instead, they edit the work product of their law clerks, with varying degrees of intensity.
Is this a problem? Some say yes. Judge Richard Posner of the Seventh Circuit, well known for writing his own opinions, criticizes the practice of clerks drafting judicial opinions in his very interesting book, Reflections on Judging. See also Judges Should Write Their Own Opinions, a 2013 New York Times op-ed by lawyer William Domnarski.
I respectfully dissent. There's nothing wrong with judges delegating the task of drafting to their clerks -- and, in fact, for most federal judges it's the best way to work. If you're interested in this subject, please check out the short essay I just wrote for the Vanderbilt Law Review, How Should a Judge Be: In Defense of the Judge as CEO.
How Should a Judge Be: In Defense of the Judge as CEO [Vanderbilt Law Review]
Managing Partner at Earl & Curley
8 年Thanks for the response David. I clerked for a state court of appeals and I appreciated your defense of clerks. I think the sentiment "we could do our job but not as well" is right on. I saw some instances in which judges drafted their own opinions and it was way more filled with quick conclusion and gut reactions than supported by citations to law and the record. As a former constitutional litigator, I can say the reasoning of the court is critical to future litigants.
Independent Law Contractor
8 年Mr. Daines has it right and I see nothing remarkable in the process he describes.
Trial and Appellate Partner | Arbitrator and Mediator | Casellas Alcover & Burgos, P.S.C.
8 年It is unrealistic to think trial judges judges can write everything with their workloads. Maybe others should.
Employee Benefits Associate Attorney at Kilpatrick Townsend & Stockton LLP
8 年I think it should obviously be a back-and-forth process. Judge creates outline, law clerk creates draft, judge restructures draft & sends law clerk to drawing board with broad criticisms. Law clerk rewrites. Judge revises & edits. Law clerk polishes. Judge signs off on final product which accurately and concisely reflects judge's opinion. To the extent that law clerk's opinion seeps into subconscious aspects of judge's opinion, that is not necessarily a bad thing...
Associate Principal at FOLEY, BARON, METZGER & JUIP, PLLC
8 年I concur in your dissent.