Some of my veteran readers may remember my posting on Fisher v. Lowe, a 13 line Michigan court decision distinguished only by the fact that it is presented in rhyming couplets. It's funny in of itself, but I never thought it would have any real significance, classroom or otherwise.
But alas, today I was proven wrong, as my Political Science professor used Fisher to press on the issue of what makes something recognizably a judicial opinion (drawing from Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)). Because while Fisher is certainly not a classic opinion, most people, upon reading it, would recognize it as one--especially if they saw it in a legalistic context (e.g., a reporter). But of course, not everything a judge writes would be so recognized--if a judge sent West a copy of his grocery list and said "report this", there would probably be some push back.
So what about it? What makes an opinion recognizably judicial?
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Well, no one else has taken a crack at this, so I suppose I'll start, despite my disdain for Fish-style literary criticism (stemming partly from an inability to understand it and partly from a sneaking suspicion that no one else does either).
I don't think there's a problem in identifying the sine qua non of a judicial opinion. I would think that it is a description of a conflict and a purported solution. The description of the conflict or the solution can be incorporated by reference (as in many summary affirmations) but without them, I don't think there can be a judicial opinion. The tree case has both, in describing a tree's case against a Chevy who mangled it, and the solution is affirming the lower court's decree of dismissal.
Then again, this requirement differentiates the judicial opinion from very few written works (grocery lists and biographies, inter alia), but hopefully this gets the ball rolling. I was worrying more about underinclusiveness than overinclusiveness.
In your case, if a judge wrote an opinion "John, a red-haired man, was assualted by Bob. Because I hate red-haired people, the assualt charge is thrown out," would you recognize that as a judicial opinion? Perhaps you would--just a really bad one. What about a judge who described the problem and solution via interpretative dance? Or one whose opinion was actually a tape recording of his communing with higher beings and their stated guidance?
Fish's solution to this whole ordeal is to say an opinion is judicial when it has intersubjective validity--when members of the relevant interpreting community say its a judicial opinion. So long as the community (judges, lawyers, litigants, the staffers at West, whomever) go along with it, then anything could be a judicial opinion. The constraint is not anything inherent in the text (or interpretative dance) itself, the constraint comes from the people who can choose to use or not use it as a judicial opinion
I would indeed recognize that as an opinion--a bad one, like you said, but an opinion nonetheless. As for interpretive dance, well--maybe I should toss in the adjective 'verbal,' though apparently teaching via ballet is in vogue (http://prawfsblawg.blogs.com/prawfsblawg/2006/10/legal_pedagogy_.html), so maybe this is the next step.
Fish's response bothers me, probably for the reasons I described above. It's just a straightforward application of relativist thought. I, old-fashionedly, prefer to look for intrinsic characteristics, even though my perception of intrinsic characteristics is simply that, my perception, which counts for no more than etc etc etc. I still think discussing (our perceptions of) characteristics of these things is more worthwhile than Fish's question-begging response. If the community decides whether something is a judicial opinion, who's the community? Can we kick someone out of the community? Can we define ourselves to be members? Can the ABA?
More importantly, where do we go from there? I suggested that something cannot be an opinion unless it purports to resolve a problem. Fish would suggest that a grocery list can be an opinion, as long as it can be cited as Ivan's Grocery List, 453 N.W.2d 211 (including such items as ketchup, celery, and cheese curds) and the legal community looks at it and says, "that's an opinion."
But on the subject of the community, the only important members of the community would seem to be other judges, since they can decide whether to apply the law. It doesn't matter if every lawyer, West staffer, and law professor in the country thinks something isn't a decision if a future judge cites it as binding precedent. But I think that gets us ahead of ourselves, since the first focus needs to be on that other member of the community--the litigants.
First and foremost, we might say that, for something to be a decision, the parties have to go along with it. So say the loser refuses to do so. That would require enforcement, which involves executive power. If the executive refused to punish a participant for contempt of court, then the judiciary's decisions would cease being decisions, and would rather be suggestions. Again, it doesn't matter if every other person in the community--even other judges, this time--thought it was an opinion. Without enforcement, it's a nullity.
So maybe I got the requirement wrong in my initial response. Maybe the only requirement to be a judicial opinion is the enforceable and enforced direction of a certain action, whether it's to pay money, reconsider an opinion, or dismiss a case.
Of course, that doesn't differentiate between the action of a court, an agency, or a dictator. But neither does Fish's response, so that's apparently not necessary.
P.S. If this is incomprehensible, just let me know and I'll try again tomorrow. I kind of wrote it piecemeal while working on something else, and at this point can't quite tell whether it makes sense, but I spent too much time writing it just to discard it.
Very simple, really.
Look for the Letterhead at the top and the name at the bottom.
Anything written inbetween is judicial decision (FWTIW).
But I jest. From the writing only - extremely difficult.
I have worked alongside lawyers, ranging from the very best of criminal barristers to a neighbourhood hack who had expended all his abilities getting his degree and had nothing left to offer. You could tell, directly from the quality of the writing, one from the other.
What you could not tell was the quality of the opinion. That only another lawyer could really judge.
Oh, and btw the neighbourhood hack is the one whom I preferred to deal with - no pretensions, very difficult to get an opinion out of... the kind of lawyer I like. The barrister was full of opinions, many of them not very useful.
Ivan: The enforcement model I think is even worse than what you had before. Is Worcester v. Georgia not an opinion? Worse yet, you could credibly argue that Brown v. Board isn't a legal opinion under your standard.
I'd also note that the model you set up effectively is Fish-ite, except that it ossifies the relevant "interpreting community" as the executive branch and nothing else.
The other thing I'd suggest about Fish's theories (and I concur here) is that they are less normative and more descriptive of how an opinion actually becomes a "legal opinion". Fish would say that--as sucky as it may be--there is nothing intrinsic to texts that allow us to be pull something out of them and proclaim them to be a legal opinion. You might think its really sad that we live in that world, but it isn't any less true.
To Fish, its not texts that constrain people, its people that constrain people. If people go nuts and decide that Ivan's laundry list is a judicial opinion, then maybe it is so. But for some reason, despite the fact that it could happen, it doesn't, so I think its pretty clear that the potential for horribles in Fish's world isn't really happening.
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