Scholarship I've Been Writing

I am, as all the cool kids say, happy to report that my latest is up on SSRN. It's called Writing, Cognition, and the Nature of the Judicial Function, and it'll be coming to a library shelf near you (more specifically, the one that holds the Georgetown Law Journal) in about a year. But you, privileged denizen of the Internet Age, can access a working copy right now simply by clicking on this link.

The abstract goes a little something like this:

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive – that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits – such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process.

This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of the problem to the exclusion of those inputs that are more important to proper analysis.

The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement) primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them.