Writer's Block

Attractive Nuisance has been noticing that opinions keep getting longer and longer. She finds this ironic, given that peoples' (including lawyers') attention spans are, according to the Atlantic Monthly, getting shorter and shorter .

She supposes that part of the problem is one of sheer volume. Courts are bringing cases into existence at a greater rate than cases are passing out of existence. (Do cases actually pass out of existence? A-Nu doesn't know.) At any rate, this bloated corpus of precedent appears to be leading judges to think that they need to quote and cite more and more, lest they fail to provide a comprehensive survey of every damn case out there. The result is an opinion that reads like a treatise.

A-Nu thinks this trend needs to be quashed faster than you can say "Ritalin." She has many a beef about overly long opinions, but her A-1 gripe is that they tend to correspond with excessive use of block quotes. Given the massive number of cases out there, it is now possible for judges to write opinions almost entirely by cutting and pasting stuff from previous opinions. It makes A-Nu's delicate flesh crawl to see a ginormous block quote slapped down right in the middle of an opinion's analysis section, prefaced only by a lofty "As the Supreme Court has explained..." and followed only by a lame "The situation at hand is, obviously, closely analogous." A-Nu recognizes that Article III tenure is lifelong, but sincerely believes that judges who so blatantly abjure their responsibilities will face consequences in the hereafter.

Her irritant du jour is M.A.A. v. Kinsland, (6th Cir. Oct. 7, 2008), in which Judge Rogers proves he's still "Johnny from the block" by incorporating a three-paragraph quotation from Tinker v. Des Moines School District (among other such quotations). A-Nu recognizes that the use of such quotations frees up valuable time to make multicolored paper clip chains and have federalist society parties with one's clerks. But other responsibilities likewise call. A-Nu is a fan of not checking anything, including her free speech rights, at the schoolhouse gate, but she also thinks that perhaps Judge Rogers might wish to keep it real by expressing that admirable sentiment in his own words.

All in all, A-Nu thinks this whole phenomenon of battering the reader over the head with massive block quotes evinces a certain judicial timidity. If you use your own words, you have to make sure you're right, and if someone calls you out -- say, in a petition for rehearing -- you have to count on your words to stand up to scrutiny. But if you use a three-paragraph quote from the Supreme Court, no one questions its accuracy. A-Nu therefore exhorts Judge Rogers -- and his brethren -- to forego the block quote. Next up: the abominable string cite.