Scalia v. Green (CA1 10/20/11)

This dispute about some easements is of no interest to anyone but its parties. Interesting opinions – or opinions at all, for that matter – have been thin on the ground lately. But this one gives us a chance to comment on an aspect of Court of Appeals style we haven’t mentioned in awhile.

No, it’s not the long, useless standard-of-review paragraph; here it’s as useless as ever but that’s not something we haven’t mentioned in awhile.

It’s the paragraph after that one. The case was primarily a fight about whether an easement had been abandoned. The paragraph, no. 7, begins the court’s legal analysis by telling us that “an easement is a right to use the land of another for a specific purpose.” It cites a case. It also tells us, again with citations, that an easement runs with the land, and one or two other things of equal complexity. None bears on the issues in dispute. The paragraph is superfluous; its omission would change nothing.

So why is it there?

Perhaps these were novel concepts to the person who wrote the opinion. In this particular case we don’t know. But it seems not infrequently that an opinion’s subject is new to its author, who can’t quite tell the go-without-saying ABCs from the important parts. Because people allowed to write opinions often have little or no experience in the practice of law that is only to be expected. If we’re going to live with that system, though, we should also be able to expect that a judge would at least read the draft and red-pencil this stuff.

(We don’t, by the way, mean to be too critical of those nameless neophytes; they don’t get enough opinion-drafting instruction and what they do get is often wrong. The best they can do is to stumble along using the monkey-see-monkey-do method, which is how many practicing lawyers also get by.)

Another reason is that courts routinely break the writer’s cardinal rule and forget, or don’t care about, who their audience is. Nobody who wants to read an opinion about the abandonment of easements needs to be told what one is.

And then there’s the possibility of cite-itis, a malady characterized by writing opinions so as to get them cited as often as possible and maybe even printed in casebooks. The virus was spread years ago by a former Supreme Court Justice.

Whatever the reason, this is useless bloat. But don’t hold your breath waiting for it to go away.

(link to opinion)