Law Commons^™

Judicial Rhetoric: Writing Persuasive Opinions, Gerald Lebovits

Arkansas Law Review

In 1947, Judge George Rose Smith denounced, in the Arkansas Law Review, the “dearth of material concerning the mechanics of writing a judicial opinion” as a “striking omission in legal literature.” He was right.

The lack of attention given to the judicial opinion-writing process back then was hard to justify. Judges spend much of their time writing decisions. Decisions are important. They determine rights and responsibilities, as well as resolve controversies. Scholars have written about every aspect of judging and legal issue—except one of the most important ones: how to decide a case and justify the decision. Judicial opinions set …

Promoting A Rhetoric Of Judicial Legitimacy In Pro Se Litigation, Alistair E. Newbern

Arkansas Law Review

In recent months, headline after headline has decried twin threats to the federal judiciary: declining public trust in the courts and escalating threats to judges’ personal safety. The public’s opinion of the Supreme Court reached “close to a three decade low” in 2025, while Americans’ confidence in the federal judiciary as a whole “dropped to a record-low 35% in 2024.”

In his 2024 Year End Report on the Federal Judiciary, Chief Justice John Roberts identified a recent uptick in four areas of “illegitimate activity” that “threaten the independence of judges on which the rule of law depends: (1) violence, (2) …

Foreword, Amanda B. Hurst

Arkansas Law Review

This Symposium, The Art of Judging, delved into the complexity of the judicial craft, discussing the intellectual, practical, and human dimensions of judicial work. The Symposium addressed courtroom management, decision-making, and opinion writing, as well as the impact of evolving technologies on these core judicial functions. Another key focus was the increasing challenges judges face in responding to litigants’ wellness issues, managing their own well-being, and maintaining the judicial persona—both inside and outside the courtroom. Though the Symposium was not born out of the aim of combating the current climate, where misinformation and misunderstanding of the judicial role threaten …

The Lone Dissent, Grant Christensen, Anne Mullins

Washington and Lee Law Review

What can be learned when a Supreme Court Justice decides to write a lone dissent? There exists a powerful set of incentives for Supreme Court opinions to achieve consensus. Although closely divided cases grab news headlines, unanimous opinions are actually the most commonly issued judicial alignment, and cases in which a single Justice dissents are the most unlikely. Despite voluminous academic discussion of judicial behavior, no legal scholarship has focused on the lone dissent. This Article is designed to insert consideration of lone dissenting opinions into the broader discussion of judicial behavior.

Looking at the set of Supreme Court opinions …

If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan

Dalhousie Law Journal

This article draws from my 2019 LLM thesis on Canadian judicial decisions, where I sought to understand two things: how current approaches to judicial decision-writing may impact access to justice and how might we make decisions a better source of data while also making them more timely, concise, accessible, and consistent. It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980–2018). It argues that the current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Reporting Certainty, James A. Macleod

BYU Law Review

Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.

Yet the rhetoric of certainty persists. …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Scholarly Articles

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author's focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.

To support the …

Goodbye To Concurring Opinions, Meg Penrose

Faculty Scholarship

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors.The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common that …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Supreme Verbosity: The Roberts Court's Expanding Legacy

Marquette Law Review

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Deciding Not To Decide: A Limited Defense Of The Silent Concurrence, Alexander I. Platt

The Journal of Appellate Practice and Process

No abstract provided.

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Faculty Articles

The primary focus of this Article is on providing practical advice on how to write a reasoned decision or opinion (Section IV). However, experts in education theory have found that adult learners do best when they understand why certain information is being presented, so the discussion of how to write reasoned judgments will be preceded by a brief section on why such judgments are necessary or useful (Section III). This Article also considers what a reasoned decision or opinion actually is as a preliminary matter (Section II), since it is impossible to write such a document without a true appreciation …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

The Use Of Mediation As A Complement To The Integrated Domestic Violence Courts Of New York, Lauren K. Williams

Cardozo Journal of Conflict Resolution

In 2001, New York created the Integrated Domestic Violence Courts in order to more efficiently and more comprehensively address domestic violence cases. Domestic violence cases that were formerly spread out between two or three different courts can now be resolved in front of one judge. While this new court does minimize the hassle for the parties involved in the dispute and does eliminate inconsistent rulings by different judges in different courts, this new court structure does not address some problems that have existed with courts' approaches to resolving domestic violence. These problems include (1) that abusers can often afford to …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

Judicial Opinion Writing: An Annotated Bibliography, Ruth C. Vance

Law Faculty Publications

No abstract provided.

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

NYLS Law Review

No abstract provided.

Telling Through Type: Typography And Narrative In Legal Briefs, Derek H. Kiernan-Johnson

Publications

Most legal authors today self-publish, using basic word-processing software and letting the software’s default settings determine what their documents will look like when printed. As these settings are not optimized for legal texts, they do so at their peril. The default font Times New Roman, for example, as Chief Judge Frank Easterbrook warns, is "utterly inappropriate for long documents [such as] briefs."

Commentators have started urging a more deliberate approach to legal typography. Their suggestions, however, have been content-neutral, intended for all legal texts and focused on goals such as legibility and readability.

Typography, however, has much greater potential. The …

Ethical Judicial Opinion Writing, Gerald Lebovits

ExpressO

This article explores an important topic about which almost nothing has been written: How to write an honest judicial opinion.

New York Law School Reporter, Vol 11, No. 2, October 1995, New York Law School

Student Newspapers

No abstract provided.