Excerpt

The Importance of Clarity

In the Anglo-American tradition, courts and the judicial interpretation of the law have a central place, with judicial opinions and the case law that is created by those opinions forming a core component of the legal system. As a genre of lawmaking (Livermore, Riddell, and Rockmore 2017), judicial opinions have many defining features: they take a narrative structure, often recounting in detail the circumstances that led to a dispute; and they focus on interpreting preexisting legal norms and then applying those norms to adjudicate that particular, concrete dispute. Once an opinion has been published, it takes on precedential status, either binding on other courts within the same jurisdiction, or at the very least as a persuasive authority that may be relied on in subsequent cases. Beyond the directly binding character of judicial opinions, private parties and their legal counsel look to the opinions issued by courts for guidance on the content of the law.

As with any other legal text, judicial opinions range in the clarity with which they communicate their legal content. Just as statutes or regulations may involve vague language, confusing definitions, or a Byzantine structure of crossreferences and interlocking requirements, judicial opinions can be opaque, confusing, meandering, or incoherent and contradictory—characteristics that make it difficult for those opinions to serve their public purpose of communicating the content of the law to the public and future courts. Although commentators disagree on the extent to which judicial opinions should be judged on their literary character (Schauer 1995), the desirability of clarity in judicial writing is broadly recognized.

For both normative and professional reasons, judges have many reasons to care about the clarity of their writing (Baum 2009, 109). From a normative perspective, judges who care about fulfilling their duty to faithfully announce the law and provide useful guidance to future litigants and courts will, to the best of their abilities, endeavor to write clearly. From the perspective of professional incentives, judges have many reasons to communicate clearly (although their goals may also, sometimes, be served by writing in ways that obscure rather than clarify).

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