Washington University Jurisprudence Review
In my Article, "The Perfect Opinion," I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about us. So why do judges often select non-authoritative opinions (alternative concurrences or dissents) or no- citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Justice Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine.
Instead, it seems that at least some judges share a critical perspective that citation is a masking device, and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on principled reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we typically work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.
Andrew Jensen Kerr,
The Perfect Opinion,
12 Wash. U. Jur. Rev. 221
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol12/iss2/6