After reading Judge Posner’s thoughtful blog post at Larry Lessig’s site I was moved to go back and read his 20 Questions Interview with Howard Bashman. I particularly liked his explanation of why opinions that are written by the judge are better than opinions written by judicial clerks:
“In general I think you’d find that the most interesting and accessible opinions are those that are judge-written rather than clerk-written, or if the clerk wrote a first draft the judge rewrote it thoroughly. The reason is not that the judges are smarter than the law clerks, though obviously they are more experienced, but that law clerks write as it were defensively, conscious of their inexperience and reluctant to produce something that looks like an individual product. Clerk-written opinions tend to a dreary uniformity and often fail to disclose the considerations that actually moved the court to its decision.”
The federal trial judge I clerked for would let us write the first draft of an order and reasons, but then it was extensively rewritten by him. I learned more about how to think and write clearly by observing him rewrite my words than I did from anything else I was exposed to in law school or in practice. Judge Posner is completely correct when he says that law clerks write ‘defensively’ and are prone to ‘dreary uniformity.’ At least that was true of me, and of the people who clerked about the same time that I did.
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