Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, April 26, 2021

Is that an appellate opinion or a novel?

Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents.  Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!

Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system.  Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions."  Amen to that.  Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation."  Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.

Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill.  Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.

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