May 31, 2006

45 pages? Couldn't they have finished with just a second sentence?

Something along the lines of "Need we say more?"
"The principal question presented by this appeal is whether a special condition of parole that prohibited the possession of 'pornographic material' would have given notice to a reasonable parolee who had been convicted of sexual crimes involving minors, or his parole officer, that the condition prohibited possession of the book Scum: True Homosexual Experiences, which contains sexually explicit pictures and lurid descriptions of sex between men and boys." So begins a 45-page opinion that the U.S. Court of Appeals for the Second Circuit issued today.
(Link.)

15 comments:

Dave said...

I've long held that lawyers and judges should be paid at a rate inversely proportional to the amount of words they spew across the page. (That is, the fewer the words you write, the more you should be paid, up to a pre-set limit.)

The Drill SGT said...

I would file this story and the parolee under the heading; "Too Dumb to Breed".

Wait, we're talking about sex with boys.. nevermind...


Trying again...

Was the lawyer paid by the word? hour?

Clearly not a fan of the Robert's School of appellant writing.

Harkonnendog said...

Lol.

"would have given notice to a reasonable parolee who had been convicted of sexual crimes involving minors, or his parole officer,"

He was convicted of sexual crimes involving his parole officer?

(I guess it isn't that ambiguous, but it wouldn't have killled them to write a bit more clearly.)

Bissage said...

Of course, for those valuing both concision and lurid descriptions of perverse sex there is the timeless U.S. v. Guglielmi, 731 F.Supp. 1273 (W.D.N.C. 1990).

L. Ron Halfelven said...

My nominee for that second sentence: "Really, now."

Wickedpinto said...

I am not commenting on this particular decision, but I think this is how the COURTS . . .SHOULD rule.

"FIRE BAD! FIRE BAD! FIRE BAD!"

Alan Kellogg said...

First thing, it was the appeals court that issued that document. The work of a judge, not the defendent's lawyer.

That said, when you consider how an appeals court ruling can be interpreted, it makes sense to be extremely detailed. You don't want to leave a detail uncovered. Not in the current legal climate.

It would be nice if the legal busines sas a whole would be reasonable about things, but there you are.

Wickedpinto said...

Deconstructive Derhida languag is the common.

thats PATHETIC!

Marty Lederman said...

Actually, although the opinion does gild the lily in some respects -- it would be very easy to chop out ten or so pages -- the length is not entirely unjustifiable, and it couldn't have been written in a page or two. There were several questions presented, including several involving the complex doctrines of vagueness and overbreath. And the court did need to deal with what it correctly describes as "a series of strongly-worded opinions by this Court and others suggest[ing] that the term 'pornography' is unconstitutionally vague." (Moreover, two or three pages are devoted to a description of the materials in question, on the theory that "[b]ecause this case turns on whether the contents of Scum are so inarguably 'pornographic' as to fit within any reasonable definition of that term, it is necessary to describe with some thoroughness what the book depicts and how it is depicted." You can imagine what follows.)

What's truly indefensible about this opinion is not its length but the date on the front page. The plaintiff was incarcerated for a period of five months on account of his parole revocation ten years ago, and he filed this lawsuit nine years ago. Most of that delay is presumably attributable to the district court judge: Six years elapsed between the time she granted the motion to dismiss on some claims and her grant of summary judgment on the others.

My favorite line in the opinion?: "Farrell timely appealed."

Ann Althouse said...

Thanks, Marty. I'm being flip about it, I confess. It really does sound interesting, and vagueness and overbreadth issues are important and difficult. But, in all seriousness, I detest overlong opinions. The one sentence I've quoted is a bit of a mess. It's easier to type out long sentences these days than to make the effort to be concise and clear, and it puts a terrible burden on those of us who have to work with the material. That it took so long to come up with it is just salt in the wound.

Marty Lederman said...

Ann: Sorry, I didn't mean to leave a misimpression: It's *not* very interesting (not even the description of "Scum"!). Better you spend your time tracking down some Rubino sculptures, or reacquainting yourself with Prince's early works -- honest.

Ann Althouse said...

Marty: Thanks. I wasn't rushing over to read it, quite frankly. Vagueness and overbreadth are difficult enough. I'm not going out of my way to read lower court cases that should have gone through a few more drafts.

Wurly said...

"And the court did need to deal with what it correctly describes as 'a series of strongly-worded opinions by this Court and others suggest[ing] that the term "pornography" is unconstitutionally vague.'"

Here's another point in favor of Justice Roberts's style of opinion writing--narrow and clear. A narrow, clear opinion without sweeping, rhetorical flourish is less likely to fertilize subsequent overgrown dicta that eventually has to be pruned.

mdmnm said...

What I think is interesting is the increase in length of your run of the mill federal district court or appellate court opinion in the last twenty years. I blame computers. It is so easy now to cut and paste stock language for basic principles that all opinions get fat.
Writing at the trial court level, you feel like you have to keep that stock language in, though, because you can't guarantee that an appellate panel looking for a different result won't reverse because the trial judge didn't include language indicating that he applied the proper standard for granting summary judgment.
What I really hate in court opinions is the proliferation of footnotes in the last few years. 99% of the time, if it is important enough to put in the opinion, it should be in the text.
Sorry for the rant- back to some overlong opinion.

Marghlar said...

mdmnm: I'd say that computers play a role to be sure, but that the rise of the law clerk as opinion drafter plays a much bigger role.

It used to be the case that a longer opinion meant more work for the judge. Now, however, a judge must work to shorten his clerk's opinions, removing all the extraneous stuff that Clerk's throw in as a matter of self-defense (because if they don't, the judge will assume that they haven't thought about all the issues).

Note that judges who write their own opinions tend to write both shorter, and better crafted opinions. If practice makes perfect, having clerks draft everything is a miserable waste of time. However, it's not likely to change any time soon, unless Congress either massively increases the size of the federal judiciary, or massively decreases its docket (by, for instance, drastically curtailing diversity jurisdiction, which is a huge drain on the courts time with little public benefit).