While judicial opinions are usually matter-of-fact, technical, and serious, judges occasionally incorporate poetry into their writing. The practice has been criticised as self-aggrandising and demeaning by some scholars, but judges who use verse in their opinions do so to communicate with particular audiences, signal the importance of a case, or to address the emotional components of a legal dispute. For example, legal scholars Edward J. Eberle and Bernhard Grossfeld point to Chief Justice William Rehnquist's dissent in Texas v. Johnson (1989) as a powerful example of using poetic modes in judicial writing to demonstrate an argument.

Purpose

Fisher v. Lowe

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.
Affirmed

– Judge John H. Gillis[1]

In legal disputes, judges write judicial opinions to display and confront their reasoning for decisions, explain the historical context of the law, and establish precedent for future disputes.[2] Since most disputes can be settled with an opinion, the ambiguities and complications of law, contracts, and social life are prominently displayed in judicial writing.[3] Judicial writing then forms, in part, fields of law by connecting with one another, and they create a kind of commingling jurisprudence through this communication.[4]

Writing an opinion (whether for the majority or otherwise) is an exercise in communicating with a particular audience; not only are opinions read by the parties involved in the underlying dispute, but also students of law, lawyers, judicial colleagues, and the general public.[5] For this reason, judges may take into consideration the style of their writing—typically fact-driven, serious, and technical—and use poetry to entice readers to more closely follow the dispute and understand their reasoning.[6] They may also consider the facts of the dispute; when a case involves a particularly interesting issue, or one that is of interest to the public, judges can use their language to signal its novelty or importance.[7] Judges may also have other motivations to write in verse; in one 1975 case, a judge delivered his opinion in verse because a party demanded it.[8]

Poetry is an outlet for judges to not only pass on information about the dispute, but to also hone their professional writing.[9] While prose allows judges to arrange their thoughts, poetry has inherent constraints that force them to deliberately extract the core issues in the case before them,[10] while also allowing judges to communicate the emotional dimensions of a dispute.[11]

Analysis

For the parties in a legal dispute, judicial poetry can be seen as demeaning.[12] For example, in one case involving a minor sex worker in 1975, a judge described her in verse as a "whore" who "must be adjusted" to "society's rules", and who "while out on parole" would be unlikely to receive support from the "men she used to cajole".[13] He was ultimately censured for his opinion – censured not for the poetic form, but for his descriptions of her.[14] The use of poetry can also be seen as an exercise in self-aggrandisement, as poetry's constraints often force judges to employ deficient and incomplete legal reasoning.[15] Judge Richard Posner wrote that while poetry may effectively summarise a dispute and the legal rationale for a decision, two different poems—unlike two separate pieces of prose—are imbued with alternate meanings that cannot replace one another.[16]

The poetics of judicial writing may also be subdued, where judges rely on turns of phrase and linguistic moves to develop new theories of law.[17] In Katz v. United States (1967), for instance, the Supreme Court of the United States expanded the meaning of the word "search"—once only denoting a physical invasion of property—into a broader reasonable expectation of privacy issue.[17] And in Texas v. Johnson (1989), William Rehnquist's dissent quoted considerably from poetry, hymns, and songs to demonstrate the importance of the American flag.[18] This particular rhetorical move—beginning his dissent with extensive quotations from poetry, and only afterwards advancing to a legal analysis of the issue—is seen by legal scholars Edward J. Eberle and Bernhard Grossfeld as offering a "raw starkness" that argues "more clearly than stare decisis" alone.[18]

References

Citations

  1. ↑ Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App. 1983)
  2. ↑ Kearney, 12 Widener L.J. at 599
  3. ↑ White, 82 Michigan L.J. at 1672
  4. ↑ White, 82 Michigan L.J. at 1672–1673
  5. ↑ Kearney, 12 Widener L.J. at 600
  6. ↑ Kearney, 12 Widener L.J. at 603
  7. ↑ Kearney, 12 Widener L.J. at 603–604; Eberle & Grossfeld, 11 Roger Williams U. L. Rev. at 386
  8. ↑ Smith, 43 Arkansas L. Rev. at 12; Brown v. State, 134 Ga. App. 771 (Chatham Super. Ct. 1975)
  9. ↑ Kearney, 12 Widener L.J. at 604
  10. ↑ Kearney, 12 Widener L.J. at 605
  11. ↑ Eberle & Grossfeld, 11 Roger Williams U. L. Rev. at 386
  12. ↑ Kearney, 12 Widener L.J. at 607
  13. ↑ Kearney, 12 Widener L.J. at 607–608; Smith, 43 Arkansas L. Rev. at 13
  14. ↑ Jordan, 41 U. Miami L. Rev. at 703
  15. ↑ Kearney, 12 Widener L.J. at 608
  16. ↑ Posner, 62 U. Chicago L. Rev. at 1423
  17. 1 2 White, 82 Michigan L.J. at 1675
  18. 1 2 Eberle & Grossfeld, 11 Roger Williams U. L. Rev. at 384

Bibliography

  • Edward J. Eberle & Bernhard Grossfeld, Law and Poetry, 11 Roger Williams U. L. Rev. 353 (2006)
  • Adalberto Jordan, Imagery, Humor, and the Judicial Opinion, 41 U. Miami L. Rev. 693 (1987)
  • Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597 (2003)
  • Richard Posner, Judges' Writing Styles (And Do They Matter?), 62 U. Chicago L. Rev. 1420 (1995)
  • George Rose Smith, A Critique of Judicial Humor, 43 Arkansas L. Rev. 1 (1990)
  • James Boyd White, The Judicial Opinion and the Poem: Ways of Reading, Ways of Life, 82 Michigan L.J. 1669 (1984)

Further reading

  • Lebovits, Gerald (September 2002). "Poetic Justice: From Bad to Verse". New York State Bar Association Journal. Albany NY: NYSBA. 74 (7): 48, 44. ISSN 1934-2020. Archived from the original on 2021-04-02.
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