Headings and Headaches

Attractive Nuisance has noticed an exponential increase in the use of headings, subheadings, sub-subheadings, and even sub-sub-subheadings in judicial opinions. She doesn't know the cause of this phenomenon. Maybe the headings-mania is a symptom of the judiciary's desperate efforts to maintain order in an ever-more-complex society. Or maybe it just means that the current crop of judges was taught by a crop of high school teachers who were really into making everyone outline their essays on The Catcher in the Rye, and the habit stuck.

Anyway, it doesn't really matter where the headings come from or what they signify. The much more important point is that having to keep track of how deep she is into the damn Roman numeral structure gives A-Nu a five-Advil migraine. Just a few days ago, in Hysten v. Burlington Northern Santa Fe Railway Co., No. 05-3391 (10th Cir. July 7, 2008), Judge Holmes came out with an opinion featuring sections II.1.b.i., II.1.b.ii., II.1.b.iii., and II.1.b.iv. To Judge Holmes' credit, the opinion is careful and thorough, and A-Nu (mostly) doesn't blame him for the tears of boredom streaming down her face at its conclusion. After all, it's not his fault that the opinion involved claims under the Federal Employer's Liability Act.

But A-Nu notes that the another member of the federal judiciary named Holmes seemed to be able to whip out seminal opinions with nary a Roman numeral in sight. In Schenck v. United States, 249 U.S. 47 (1919), Oliver Wendell delivers a groundbreaking decision -- complete with pithy comment about "falsely shouting fire in a theater" -- with exactly six paragraphs and zero headings. And in Lochner v. New York, 198 U.S. 45 (1905), Ollie W.'s dissent contained three paragraphs, zero headings, and one of the most quoted lines in Supreme Court jurisprudence: "a Constitution is not intended to embody a particular economic theory." And we all know who had the last laugh in Lochner.