Federal Appeals Judges Should Stop Outsourcing Their Opinions, Op-Ed Says

The federal appeals judges who almost always write their own opinions are well-known names in the legal world.

They include Judges Richard Posner, Frank Easterbrook and Diane Wood of the Chicago-based 7th U.S. Circuit Court of Appeals, and Judge Michael Boudin, the judge on the Boston-based 1st U.S. Circuit Court of Appeals who wrote the opinion Thursday striking down a portion of the federal Defense of Marriage Act. Lawyer William Domnarski lists those judges in a New York Times op-ed, and says others should follow their example.

“We have become too comfortable with the troubling idea that judging does not require that judges do their own work,” writes Domnarski, author of the book Federal Judges Revealed. Almost all federal appeals judges designate law clerks to “ghostwrite” their opinions, he says, a practice that dates back at least 70 years with “the beginning of the law-clerk age.”

Domnarski acknowledges that the arrangement helps judges manage their dockets. But he has problems with a practice he sees as “not quite plagiarism.”

“Much of importance is lost when judges outsource the writing of their opinions to their less experienced assistants,” Domnarski writes. “Judge-written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions.”

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.