Taught by: Professor Andrea McArdle

Imagine a judicial system in which there were no judicial opinions, in which courts heard and decided cases but merely announced outcomes without committing their rationales to writing. What would we lose if we no longer had the benefit of a court’s written analysis of the reasons for its rulings? What would be the effects on the development of legal doctrine? How would litigants and their advocates gain access to the basis for judicial decision-making?

This writing-focused Lawyering seminar will address these and other questions implicated in the drafting, analysis, and use of judicial opinions. Its focus and areas of inquiry may be of particular interest and relevance to students considering judicial clerkships and internships and to students interested in advanced advocacy. Areas of inquiry will include the nature of judicial authorship, and the roles that judicial clerks play in the conceptualization and drafting of opinions; clerking and confidentiality; the audiences that judges write for, and how considerations of audience shape judicial writing; the role of empathy in judging; the lack of a consensus-based tradition (or what some would consider a privileging of the separate statement) in U.S. appellate opinions, and the issues created for courts and advocates in interpreting and using separate opinions from a single case; the function of amicus curiae briefs; the manifestation of social-justice perspectives in judicial writing; the relationship between judicial philosophy, including judicial activism, and judicial writing; framing law and using facts in opinion writing; the effect of precedent/revisiting stare decisis; the trend toward courts’ drafting “unpublished” opinions and the status of these opinions as precedent; the use of social science evidence; and identifying a judicial voice.

The course will pay close attention to the “practice” of judicial writing with assignments that include drafting a bench memo and an opinion in a pending United States Supreme Court case. Students will also hear oral arguments on the case and participate in a “bench conference” to discuss the issues, the legal standards, the evidence, and the policy implications of various possible rulings. The seminar will engage in close readings of judicial opinions illustrating key themes of the course (including notably Bush v. Gore and Planned Parenthood of Southeastern Pennsylvania v. Casey), and will analyze writing by judges and other legal scholars related to the areas of inquiry noted above. We will also analyze discourse from recent U.S. Supreme Court confirmation hearings relating to conceptions of the judicial role. In addition to taking up these issues from the perspective of judges, we will consider them from the vantage point of advocates who use judicial opinions in their own written argument, and who must anticipate, and try to influence through written argument, the way judges write opinions in the cases that they argue.

From time to time during the semester, judges will visit the seminar and discuss their approaches to opinion writing. Seminar students will also choose an additional writing project, which, with approval of the instructor and subject to availability, may include a short-term placement with a New York City-area court or administrative tribunal, during which students draft judicial writing. Alternatively, students may complete a paper/written project related to one of the themes of the seminar after approval by the instructor. Given the substantial time commitment required by the research and writing component of a judicial placement, and the need for students in placements to have greater schedule flexibility/availability, considerations in approving a judicial placement include but are not limited to a student’s academic status and course load. Students who have participated in short-term placements have worked with or for judges in the Appellate Division, First and Second Departments, Manhattan Supreme Court, Manhattan Surrogate’s Court, New York City Civil and Criminal Courts, Queens Family Court, Brooklyn Family Court, Brooklyn Supreme Court, Brooklyn Surrogate’s Court, Bronx Supreme Court, Bronx Civil Court, Queens Criminal Court, Queens Supreme Court, Westchester County Court, various federal courts in the Eastern and Southern Districts of New York, the Office of the Staff Attorney for the Second Circuit Court of Appeals, and the New York City Office of Administrative Trials and Hearings, among others. Short-term placements typically span 7-8 weeks starting in the third or fourth week of the semester.

This seminar will provide an opportunity to develop legal writing, research, close and critical reading, and analytic skills, an exposure to the workings of the courts, and a deeper analysis of strategies of advocacy drawn from insights into judges’ responses to written and oral argument.