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Unpublished Paper
THE DECLINE AND FALL OF THE AMERICAN JUDICIAL OPINION: BACK TO THE FUTURE FROM THE ROBERTS COURT TO LEARNED HAND
ExpressO (2009)
  • Jeffrey A. Van Detta
Abstract

In September 2008, Adam Liptak of the N.Y. Times wrote in an article “American Exception: U.S. Court Now Guiding Fewer Nations”:

Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

This is astonishing to many people. And it should be. The opinions of America’s courts have long been viewed as exemplars for the world. While American commercial and political influence has waxed and waned, the export of American legal ideas in the form of judicial opinions long seemed “recession-proof.” How is it that this most durable of American exports has fallen on such hard times? My article, The Decline And Fall Of The American Judicial Opinion: Back To The Future From The Roberts Court To Learned Hand, answers this question, and I submit it for publication consideration.

As I write in The Decline And Fall, to deal with such a problem, we need to turn to heroes – in this case, to Judge Learned Hand, who in a federal judicial career of over 50 years, became a recognized master of both trial court and appellate opinion writing. In this article, I examine the causes of the problem facing the Roberts Court through a dissection of carefully selected opinions from a year in Learned Hand’s trial court service. Exploring the connections and distinctions between trial-court and appellate-court opinion writing, I offer prescriptions for reversing the decline and fall of the American Judicial Opinion. The most important recommendation is that strong trial-court experience is an important qualification for appellate judging, and that appellate judges develop a greater appreciation and understanding of how trial-court opinion writing can lead to better appellate opinions. The article states and applies a methodology for evaluating the effectiveness of judicial opinion writing that will improve opinions written by trial judges, appellate judges, and – most critically – by the United States Supreme Court, whose reputation and influence are at an all-time low in the international legal community.

Disciplines
Publication Date
January 21, 2009
Citation Information
Jeffrey A. Van Detta. "THE DECLINE AND FALL OF THE AMERICAN JUDICIAL OPINION: BACK TO THE FUTURE FROM THE ROBERTS COURT TO LEARNED HAND" ExpressO (2009)
Available at: http://works.bepress.com/jeffrey_van_detta/4/