Friday, July 23, 2021
Re on Varsava on Fun in Judicial Opinions
Now on the Courts Law section of JOTWELL is Richard Re’s essay, A Rule Against Fun. Richard reviews Nina Varsava’s recent article, Professional Irresponsibility and Judicial Opinions, which is forthcoming in the Houston Law Review.
This is a must-read article for every American lawyer. It considers the roles of judges and litigation as few other American articles do.
Law should be boring. In law, as in medicine, we do not want to be interesting cases. Better to be told to take two shots of vaccine and call me should you get sick, than to be told, you are an interesting case of Covid-19, let’s intubate you.
For the moment, I have just a few thoughts for following up:
(1) Distinguish first instance opinions from appellate opinions.
(2) Continue to look at foreign approaches. Professor Varsave has already begun looking at French opinions and Professor Lasser’s work. I’ve published on German opinions in an article, “Imaging Judges that Apply Law,” and in my Civil Justice book.
(3) Maybe we don’t need rules. German judges are trained in writing decisions along the lines that Profess Varvase advocates. The are taught to write no more than needed. Their opinions are not fun. They do not require a lot of rules. Basically training is based on section 313 paragraphs 2 an 3 the Code of Civil Procedure (ZPO) (English translation at gesetze-im-internet.de :
“(2) The section addressing the facts and the merits of the case is to summarise, in brief and based on the essential content, the claims asserted and the means of challenge or defence brought before the court, highlighting the petitions filed. The details of the circumstances and facts as well as the status of the dispute thus far are to be included by reference being made to the written pleadings, the records of the hearings, and other documents.
(3) The reasoning for the judgment shall contain a brief summary of the considerations of the facts and circumstances of the case and the legal aspects on which the decision is based.”
Posted by: James R Maxeiner | Jul 24, 2021 9:01:48 AM