A request for thoughtful criticism.

Throughout our years as attorneys, we take the judicial opinion for better or for worse, as our professional companion until death do us part. Yet, we rarely express our views on how to improve the quality of this companion.

What do we do as appellate judges? We are professional writers. Day in and weekend out we write. We sign our names to published opinions, concurring remarks, and dissents. We also share the responsibility for unpublished per curiam opinions and discipline cases. How many appellate judges do you know who have moved on to the bench with a recognized reputation as a writer?

In this essay, I raise and attempt to answer the following question: Is there merit in thoughtful criticism, on a regular basis, of Kansas Supreme Court opinions? I advance the thesis that the Kansas Supreme Court, as well as the other 49 state high courts, would benefit from a constructive analysis of their work.

By "criticism," I refer to a broad-based professional analysis of the written opinions of the court, both as to the mechanics of how the opinion is written and to the opinion's rationale and result.

Law professor, dean, and former Arkansas Supreme Court Justice Robert Leflar observes that "there has been a considerable volume of writing about opinion writing, and most of it has been critical."(1) He offers the following suggestion concerning the subject:

   It will be useful to every appellate court in America if some competent
   lawyer undertakes an independent and impartial analysis of the current
   opinions of the court. This has been done in a few states, and has had a
   worthwhile effect upon the courts. The independence of such an analysis may
   annoy some members of a court, because the conclusions in the analysis will
   not be complimentary to every judge. That may be one of the major values of
   the analysis. At any rate, such an analysis, if made by a fearless and
   competent critic, can have value both to the court itself and to the bar of
   the state, by enabling them to understand better how the court functions,
   or fails to function, as a good appellate court should.(2)

Where will criticism of the written opinion originate? From the bar? The bench? The law schools? If the lawyer who prevails advances a published critique, the "lily is gilded." If the lawyer who loses does likewise, "sour grapes."

The organized bar, through bar association committees or specialty sections, offers hope; however, past experience suggests that any detailed analysis of the work of the Kansas Supreme Court will not come from the bar.

Lawyers are involved in clients' work. Written scholarship beyond the written motion, trial, or appellate brief is rare. A number of dedicated attorneys do contribute to the Journal of the Kansas Bar Association and, occasionally, to the Kansas Law Review and the Washburn Law Journal. Judges take notice of these efforts and benefit from them.

The bench does not offer a likely source for critical review. Kansas trial judges do not have law clerks, and the judges on the Court of Appeals are looking over their shoulders every three weeks waiting to receive the next wave of new cases on that court's yearlong hearing schedule. Even if the heavy press of writing responsibilities and administrative duties permitted time for opinion analysis, objectivity would be suspect in a state court's review of its own work.

It would be useful if appellate judges periodically were afforded the opportunity of listening in on an unfettered comment session of trial judges, lawyers, or law faculty. Occasionally, when an appellate court affirms the decision of the trial judge, the result is an acknowledgment of wisdom from that judge. A reversal usually produces silence. Seldom does meaningful discussion develop.

I regret that the writings of our Kansas Supreme Court are not of greater interest to legal scholars who teach in the jurisdiction we serve. We could benefit from their objective comments.

Suitability of academic forum

As a member of the Kansas Supreme Court, where do I find, on a regular basis, a critical analysis of my work as a professional writer? One answer lies in the Survey of Kansas Law published by the University of Kansas Law Review.

From the first appearance of the law review concept in U.S. legal education, reviews have considered criticism of judicial opinions as major part of their mission. Law students are introduced to case notes, comments, and lead articles early in their legal education.

As stated below, the law review format of opinion analysis is an accepted source of criticism:

   [Law reviews] address an important judicial decision, or series of
   decisions, in an effort to show that the court has misconceived the
   problem, the solution, or both. Implicit in the analysis is a hint that
   whoever wrote the opinion was too inept, or perhaps too devious, to reveal
   what was really at stake.

      Also implicit in these critiques is the expectation that once judges
   have understood the criticism, they will mend their ways and write opinions
   that are enlightened, informative, and responsive to the issues. After all,
   scholarly criticism is not undertaken simply for the delectation of other
   scholars; it is designed to improve the world that is the subject of its
   concern. Since the judicial process is the exemplification of reason,
   surely judges will be receptive to the lessons taught by their academic
   colleagues.(3)

The judicial opinion greets us on our first day of law school. We carry it with us constantly as "1Ls." We fall asleep with it after early hour analysis during the days (and nights) of Appellate Advocacy. We massage it during class discussion in our third year. Throughout our years as attorneys, we take it, for better or for worse, as our professional companion until death do us part. And yet, do we ever express our views on how to improve the quality of this companion?

The dominant thread in the common law system is the written opinion. Legislators and governmental administrators eagerly await hand-down day to learn how statues and administrative regulations have been interpreted. The lives of individuals, agreements of the commercial world, interests in property, determinations influencing the future of minors, and even the meaning of constitutions are impacted by judicial opinions.

The opinion is the method a court and its members individually use to communicate with the bar, the trial bench, the legislative and executive branches of government, and the citizens of the jurisdiction. And, yet, where does the manufacturer turn for an evaluation of the product?

My request for academic comment on judicial opinions applies not only to the result and rationale of the opinion, but to the mechanics of writing the opinion as well. Would not appellate judges benefit from an annual opinion review of language, grammar, and sentence structure carried out by the English composition faculty of educational institutions that are located in the jurisdiction?

Dean John Henry Wigmore, after perusing "many thousands of contemporary decisions," offers five criticisms of the qualities of judicial decisions.(4) First, Wigmore laments the judiciary's "lack of acquaintance with legal science." Second, he points out the judiciary's "unfamiliarity with the body of controlling precedents." Third, Wigmore criticizes "overemphasis on the technique of [analyzing] legal rules in detail, with corresponding underemphasis on policies, reasons, and principles." Fourth, he observes undue servitude to the bondage of precedent. And, fifth, he regrets the overconsideration of every point of law raised on the briefs.(5)

As a professional writer, should not the appellate judge be engaged in a dialogue concerning the purpose of the product? Why are judicial opinions written? What purpose do they serve? Does any given court publish too many or too few? What are the proper opinion roles of an intermediate appellate court and a state supreme court? As far as the parties are concerned, is an opinion necessary? Would not the announcement of the judgment and a short statement of the relief granted or denied be sufficient?

The members of any court may discuss these questions and reach a consensus; however, should not the objective outsider comment on a work product as vital as the judicial opinion?

Expanding interest and curiosity of the public in judicial opinions, enhanced by coverage of the print and electronic media, extends to the judge a ready audience for off-the-bench comment. What is the appropriate boundary line to mark the limitation of such statements?

The Kansas Code of Judicial Conduct prohibits a judge from discussing a pending or impending case.(6) A former chief justice of the New Jersey Supreme Court has stated, "Sir, we write opinions, we don't explain them."(7)

Historical perspective

The accepted standard of judicial behavior in response to criticism of an opinion in a case has changed from the days of Chief Justice John Marshall of the United States Supreme Court. Marshall's correspondence about McCulloch v. Maryland,(8) his then-recent opinion that was under attack in much of the nation's press at the time, is illustrative.

On March 24, 1819, Marshall wrote to Justice Joseph Story, a fellow member of the Court:

   Our opinion in the Bank case has aroused the sleeping spirit of Virginia,
   if indeed it ever sleeps. It will, I understand, be attacked in the papers
   with some asperity, and as those who favor it never write for the publick,
   it will remain undefended and of course be considered as damnably
   heretical.(9)

One month later, Marshall, using the nom de plume "A Friend of the Union," wrote a long paper supporting the McCulloch decision.(10) Justice Bushrod Washington, another colleague on the Court, had this defense published in the Philadelphia Union on April 24, 1819.(11)

The following month, Marshall wrote to Washington in defense of what would appear to be McCulloch.(12)

   My dear Sir: I received a few days past your letter inquiring whether the
   defense of the opinion had been correctly republished in the Alexandria
   paper. I went to the coffey house for the purpose of reading it but the
   papers had been mislaid and I was disappointed. I cannot, therefore, say
   whether they have appeared in an intelligible shape or not, and, therefore,
   I am not desirous that any further effort should be made to get them before
   the people.(13)

The Marshall letter to Washington suggests that the chief justice had dropped by the local coffee house in Alexandria, Virginia, to read his published defense of his written opinion in McCulloch. Apparently, Marshall was attempting to answer the vitriolic comments of his many critics.(14) Today, judges do not place judicial rebuttal in newspapers and assume nom de plumes to defend opinions.

Dean Leflar suggests that the greatest difficulty an appellate judge faces is developing skills as an effective writer. The judge receives no real criticism for months or years. "Unlike ordinary editors or publishers, the state reporters and the West Publishing Company never refuse to print his opinions," Leflar writes.(15)

Virtually no one, except losing litigants, ever criticizes our work, and even their criticism is usually silent, anecdotal, and not published. Many appellate judges tend to become self-satisfied with their opinion writing. No one ever tells us that there is something wrong with an opinion. We are neither encouraged to improve the quality of our writing nor compelled to analyze our work.(16)

The written opinion traditionally has created and interpreted the common law. According to the nineteenth-century philosopher and activist Jeremy Bentham:

   It is the judges (as we have seen) that make the common law. Do you know
   how they make it? Just as a man makes laws for his dog. When your dog does
   anything you want to break him of, you wait till he does it, and then beat
   him for it. This is the way you make laws for your dog: and this is the way
   the judges make law for you and me.(17)

The audience for the judicial opinion expands as the potential impact of the case on the community grows. If the litigation is a fact case, the parties and their counsel are interested. Legal issues broaden the audience to include bar, bench, and academics. Public policy issues bring in the interest of the legislature; of the executive branch; and, through the media, of the community.

The current trend of allowing the judiciary to resolve public policy disputes points to the public's increasing reliance on the quality of judicial opinions. This reliance echoes this essay's invitation for objective critical analysis.

Justice Benjamin Cardozo, in his work The Nature of the Judicial Process, quoted President Theodore Roosevelt:

   The chief lawmakers in our country may be, and often are, the judges,
   because they are the final seat of authority. Every time they interpret
   contract, property, vested rights, due process of law, liberty, they
   necessarily enact into law parts of a system of social philosophy; and as
   such interpretation is fundamental, they give direction to all law-making.
   The decisions of the courts on economic and social questions depend upon
   their economic and social philosophy; and for the peaceful progress of our
   people during the twentieth century we shall owe most to those judges who
   hold to a twentieth century economic and social philosophy and not to a
   long outgrown philosophy, which was itself the product of primitive
   economic conditions.(18)

Cardozo's observation of Roosevelt's comment was made by the justice more than 70 years ago. Our society's increased reliance on the resolution of public policy by the judiciary has continued on an upward spiral.

The written appellate opinion crafts the common law of a particular jurisdiction. The opinion is the vehicle Justice Oliver Wendell Holmes had in mind when he commented, "The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi sovereign that can be identified...."(19)

Over a century ago, Sir Henry Maine observed:

   [S]ocial necessities and social opinion are always more or less in advance
   of law. We may come indefinitely near to the closing of the gap between
   them, but it has a perpetual tendency to reopen. Law is stable; the
   societies we are speaking of are progressive. The greater or less happiness
   of a people depends on the degree of promptitude with which the gulf is
   narrowed.(20)

I suggest that narrowing the "gulf" is much of what appellate judging has been about during the post-World War II period. The development of judicial opinions should involve interests beyond those of the judiciary.

Professor Laurence Tribe comments on the importance of the written opinion:

   In a nation that has come to be the greatest law factory the world has ever
   known, the power to interpret the law is an awesome one. Even a hundred and
   fifty years ago the French political analyst Alexis de Tocqueville observed
   that "scarcely any political question arises in the United States that is
   not resolved, sooner or later, into a judicial question."(21)

Call to action

My request is for thoughtful criticism of the Kansas Supreme Court; consequently, a review of the tasks of the court is in order. The internal rules of the court are now published.(22) The chief justice assigns cases for presentation in conference and for opinion writing.(23) The tally of annual case dispositions numbers almost one disposition per day, with Saturdays and Sundays excluded.(24)

A justice's time is impacted by the responsibility to contribute to the development of opinions conferenced and written by other members of the court and in drafting dissents or concurring opinions. The justices' intellectually stretched-out feeling is due in part to the limited staffing at the court. A regular published critique of supreme court decisions would provide a welcomed addition to the research materials available for crafting opinions.

The highest court of each state moves in and out of such diverse areas of law as oil and gas, banking, real estate, the criminal area and all its important subareas, domestic relations, securities, workers' compensation, professional malpractice, administrative law, and legislative and constitutional judgment calls.

I encourage the filing of amicus curiae briefs. Simply stated, I need all the help I can find. The Kansas Law Review's Survey of Kansas Law issues are welcome.(25)

A former chief justice of New Hampshire said more than 30 years ago that, human nature being what it is, judges "have an unconscious tendency to appraise their contributions to law and society in a more charitable manner than their critics."(26) He suggested that such a "habit of thought needs to be held in check lest the state judiciary by easy stages arrives at the bottom of the slippery slope of self-satisfaction."(27) The best counterbalance to judicial self-satisfaction is thoughtful, constructive, professional criticism.

Lawyers as citizens are challenged by the Model Rules of Professional Conduct to seek improvement of the law.(28) Judges are permitted by the Code of Judicial Conduct to engage in activities to improve the law. The judge may "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice."(29)

Early on in their careers, professors of law develop an interest in a special field or fields. The judicial opinion that touches on issues in that field becomes the professional companion of the scholar. The opinion is liked or disliked, analyzed, and blended into the body of work from other jurisdictions.

The academic carries the opinion from a faculty office to class for discussion, on to the continuing legal education seminar for presentation, and then perhaps to the law review article for exposition.

My hope is that future students selected for the Kansas Law Review and members of the law faculty will make critical comment of the Kansas Supreme Court a top priority.

The twin hope is that the legal scholars who teach at the two law schools in this jurisdiction will share their knowledge and opinions with those of us who are authors through their critical analysis of Kansas Supreme Court opinions. This same critical commentary from legal scholars in the other 49 states might be of equal benefit to the courts in those jurisdictions.

Who is better qualified to comment on the body of work of a state supreme court than the legal scholars in that state who use the court's work to teach, to lecture, and, hopefully, to write about its cases?

Notes

(1.) Robert A. Leflar, Quality in Judicial Opinions, 3 PACE L. REV. 579, 580 (1983).

(2.) ROBERT A. LEFLAR, APPELLATE JUDICIAL OPINIONS 157 (1974).

(3.) David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 731 (1987).

(4.) 1 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 614 (Peter Tillers rev., 1983).

(5.) Id. [sections] 82, at 614-17.

(6.) KAN. SUP. CT. R. 601A, Canon 3A(7); Canon 34(4).

(7.) Alan F. Westin, Out-of-Court Commentary by United States Supreme Court Justices, 1790-1962: Of Free Speech and Judicial Lockjaw, 62 COLUM. L. REV. 633, 633 (1962) (quoting William J. Brennan Jr., address at the Student Legal Forum, Charlottesville, Va. (Feb. 17, 1959)).

(8.) 17 U.S. (4 Wheat.) 316 (1819).

(9.) 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 515 (1922).

(10.) Id. at 515 n.1.

(11.) Id.

(12.) Letter from John Marshall, Chief Justice, U.S. Supreme Court, to Bushrod Washington, Justice, U.S. Supreme Court (May 31, 1819) (on file with the University of Kansas Archives, Department of Special Collections, Kenneth Spencer Research Library, Lawrence, Kansas). For an analysis of the Marshall letter, see Fred N. Six, Chief Justice John Marshall--Justice Bushrod Washington, The University of Kansas Marshall Letter Dated May 31, 1819, 41 KAN. B. ASS'N J. 349 (1972).

(13.) Six, supra note 12, at 351 (quoting the Marshall letter).

(14.) For a detailed discussion of the newspaper battle of the pseudonyms between Marshall and Spencer Roane, a leading Virginia judge, see Gerald Gunther, John Marshall, "A Friend of the Constitution": In Defense and Elaboration of McCulloch v. Maryland, 21 STAN L. REV. 449, 449-55 (1969).

(15.) LEFLAR, supra note 2, at 161.

(16.) Soon after joining the Kansas Supreme Court, my colleagues introduced me to a previous motion for rehearing filed by a losing appellate counsel. The opening salvo was, "The opinion is ill conceived and poorly written." Motions for rehearing are an exception to the bar's diffidence in commenting on the opinion result. Of course, the response of the prevailing party to a motion for rehearing is always comforting.

(17.) 5 Jeremy Bentham, Truth Versus Ashhurst; Or, Law as It Is, Contrasted with What It Is Said to Be, in THE WORKS OF JEREMY BENTHAM 231, 235 (1843).

(18.) BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 171 (1921).

(19.) Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting), superseded by statute as stated in Director, Office of Workers' Compensation Programs v. Perini N. River Ass'n, 459 U.S. 297 (1983).

(20.) SIR HENRY MAINE, ANCIENT LAW 15 (1917).

(21.) LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT 5 (1985).

(22.) KAN. SUP. CT. RULES ON INTERNAL ORGANIZATION & PROCEDURES.

(23.) Id. at IV A.

(24.) In 1992, the net caseload was 490: Total dispositions were 283; opinions, 198; dismissals, 36; denials, 45; and miscellaneous dispositions, 4. The court statistics are on file with the clerk of the Appellate Courts.

(25.) In 1990, the Kansas Bar Association commenced publication of the Kansas Annual Survey, which reports the significant developments in the various areas of the law without any extended critical analysis.

(26.) Frank R. Kenison, Some Preliminary Observations on the State Appellate Judge Today, 61 COLUM. L. REV. 792 (1961).

(27.) Id.

(28.) KAN. SUP. CT. R. 226; Preamble: A Lawyer's Responsibilities (1996).

(29.) KAN. SUP. CT. Canon 4A (1996).

Fred N. Six is a justice of the Kansas Supreme Court in Topeka. This article is adapted with permission from Fred N. Six, "A Request for Thoughtful Criticism," 41 Kan. L. Rev. 655 (1993). [C] Kansas Law Review, Inc. Reprinted with permission.