Not quite a blog: The Easterbrook files

No long-time reader of this blog would accuse me of being a prostrate admirer of everything American. But one thing I do find quite nifty is the detailed and well-reasoned judgements their court system produces. They're generally freely available on the web. They are fairly accessible once one learns a few key words and turns of phrase. Some of them are even entertaining reads, in the best sense of that word. I often wish we had something like them in Denmark, where analysis and discussion are not usually found in court rulings.

Now, before you all lynch me, there are certainly many features of the American legal system that I definitely would not want to import. For example, the ground rule that each party in a lawsuit ends up paying his own lawyer's fees, no matter who wins (except when there is an explicit statutory provision otherwise) is not one I'd want to live under – it appears to encourage "nuisance suits" where the plaintiff knows that his case would likely not survive an actual trial, but hopes to get the defendant to settle out of court for a smaller sum that it would cost him to litigate for the win that he is clearly entitled to. And the idea of using juries to decide civil suits strikes me as quaint, to say the least. Many of the laws that American judges have to apply are, of course, batshit insane, but that is hardly the fault of the judges themselves. And something appears to be seriously broken about their tort system.

None of that keeps me from liking the form of the judgements.

In particular, I've become quite the fan of the opinions written by Chief Judge Easterbrook of the U.S. Court of Appeals of the 7th Circuit. You'll find his latest opuses here, intermixed with those of his colleagues; there is no option to limit the search by author. [Amended June 15: yes there is, with RSS feeds even!]

My first encounter with Easterbrook's writing was this one in which the infamous Wallace v. GPL case was finally put to rest. As a longtime user, writer and sometimes advocate of free software, I'm of course pleased with the legal conclusions in there, but they cannot really have been difficult to arrive at. What struck me was that the writing was beautiful. At first I thought that the text I'd arrived at through a dubious chain of links couldn't possibly be the actual ruling of the court. It read more like an essay than an official document. Perhaps it was a summarizing article for some magazine? But no, this was the real stuff.

The Wallace opinion mentioned in passing that itself and similar "opinions" were available for free on the court's website, so I went there and took a look. As it turned out, not all the opinions I sampled reached quite the heights of prosely pleasure that Wallace did. It stands to reason that many court cases are inherently so full of stuffy details and other drudgery that they cannot possibly be made interesting to read about. But a fair number of them proved interesting enough reads to be worth my time.

Among the highlights is one case which opens like this:

[Defendant], a tax lawyer whose opinion letters while at [a law firm] lead to the firm's demise (it had to pay more than $75 million in penalties on account of his work), designed a tax shelter for himself, which one client owning a 37% share. Like many tax shelters it was complex in detail but simple in principle, and to facilitate exposition we cover only its basics, rounding all figures.
A transaction with an out-of-pocket cost of $6.000 and no risk beyond that expense, while generating a tax loss of $3.6 million, is the sort of thing that the Internal Revenue Service frowns on.
and another one which carefully dissects of a piece of statutory language:
There remains the question whether the paraphernalia conviction relates to "simple possession of 30 grams or less of marijuana". If [defendant] had been caught with the pipe and five grams, the answer would be yes. As it happens, he was caught with the pipe and zero grams. Yet zero is less than five. The ancient Romans and Greeks did not think zero a number, but today we understand that zero is smaller than 30.
You can't make that up. Some you can't even excerpt without doing injustice to the writing: this one you'll just have to read for yourself.

Yet – and this is an important point – for all the colorful (sometimes downright snarky) language Easterbrook always manages to convey the impression that justice is in fact being dealt out, and things that need serious thinking about have gotten it. Doing that while still being an entertaining read takes serious rhetorical talent.

Respectfully recommended for your reading pleasure.

(Be sure also to enjoy the excellent typography of the 7th Circuit opinions. Most of the other circuit courts whose websites I have sampled do provide the text all right, but in rather ugly formats).

P.S. I do know one good argument for having less detailed judgements in the Danish system: time. It takes lots of time and care to draft opinions to the American standard, which would not only burden the already strained resources of the courts, but also add delays of weeks or months to each particular case. The people whose actual money or futures are at stake might reasonably prefer their judgements to arrive quickly rather than being beautifully presented.

No comments:

Post a Comment