While

judicial opinion A judicial opinion is a form of legal opinion written by a judge or a judicial panel in the course of resolving a legal dispute, providing the decision reached to resolve the dispute, and usually indicating the facts which led to the dispute an ...

s are usually matter-of-fact, technical, and serious,

judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

s occasionally incorporate

poetry Poetry (derived from the Greek ''poiesis'', "making"), also called verse, is a form of literature that uses aesthetic and often rhythmic qualities of language − such as phonaesthetics, sound symbolism, and metre − to evoke meanings i ...

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 William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

's dissent in ''Texas'' v. ''Johnson'' (1989) as a powerful example of using poetic modes in judicial writing to demonstrate an argument.

Purpose

In legal disputes,

s write

s to display and confront their reasoning for decisions, explain the historical context of the law, and establish

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

for future disputes. 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. 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. Writing an opinion (whether for the

majority A majority, also called a simple majority or absolute majority to distinguish it from #Related terms, related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-Websterstudents of law, lawyers, judicial colleagues, and the general public. 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. 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. 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. Poetry is an outlet for judges to not only pass on information about the dispute, but to also hone their professional writing. 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, while also allowing judges to communicate the emotional dimensions of a dispute.

Analysis

For the parties in a legal dispute, judicial poetry can be seen as demeaning. For example, in one case involving a minor

sex worker A sex worker is a person who provides sex work, either on a regular or occasional basis. The term is used in reference to those who work in all areas of the sex industry.Oxford English Dictionary, "sex worker" According to one view, sex work is d ...

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". He was ultimately

censure A censure is an expression of strong disapproval or harsh criticism. In parliamentary procedure, it is a debatable main motion that could be adopted by a majority vote. Among the forms that it can take are a stern rebuke by a legislature, a spir ...

d for his opinion – censured not for the poetic form, but for his descriptions of her. 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. Judge

Richard Posner Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chica ...

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.Posner, 62 at 1423 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.White, 82 at 1675 In ''Katz'' v. ''United States'' (1967), for instance, the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

expanded the meaning of the word "search"—once only denoting a physical invasion of property—into a broader

reasonable expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privacy ...

issue. And in ''Texas'' v. ''Johnson'' (1989),

's dissent quoted considerably from poetry, hymns, and songs to demonstrate the importance of the

American flag The national flag of the United States of America, often referred to as the ''American flag'' or the ''U.S. flag'', consists of thirteen equal horizontal stripes of red (top and bottom) alternating with white, with a blue rectangle in the c ...

.Eberle & Grossfeld, 11 at 384 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.

References

Citations

Bibliography

* Edward J. Eberle & Bernhard Grossfeld, ''Law and Poetry'', 11 353 (2006) * Adalberto Jordan, ''Imagery, Humor, and the Judicial Opinion'', 41 693 (1987) * Mary Kate Kearney, ''The Propriety of Poetry in Judicial Opinions'', 12 597 (2003) *

, ''Judges' Writing Styles (And Do They Matter?)'', 62 1420 (1995) * George Rose Smith, ''A Critique of Judicial Humor'', 43 1 (1990) *

James Boyd White James Boyd White (born 1938) is an American law professor, literary critic, scholar and philosopher who is generally credited with founding the "law and Literature" movement. He is a proponent of the analysis of constitutive rhetoric in the anal ...

, ''The Judicial Opinion and the Poem: Ways of Reading, Ways of Life'', 82 1669 (1984)

Purpose

Analysis

References

Citations

Bibliography

Further reading