<< Of course, this second sentence largely undermines the first part, since those
creative interpretations of precedent can usually go whichever way the judge
wants for a new situation, so goodbye predictability in unclear areas of the
law.
It is true that in the same exact situation, that predictability is the great
argument for the rule of law. But for new situations, most legal writing is
pretty much bad poetry -- ie. shall I compare thee to a summer rose or shall I
compare thee to the default-rule of buggy whips as noted in the 1913 Wolfson
case? >>
In my experience, I would say that about 70% of appellate cases are easy slam-dunks and another 20-25% are not easy, but almoast every respectable judge would come out the same way on them after thinking about them. It's only 5-10% of appellate cases where creativity, as opposed to hard work, is called for.
Sometimes judges fly in the face of what''s obviously called for, it's true. I had one Fair Debt Collection Practices Act case where the creditor had not issued the required notice. 7C precedent was clear: they're liable, you enforce the letter of the statute. The judge I was doing that case for after Judge Cummings died wanted a different outcome. I wrote an opinion coming out the right way with three solid pages of analysis explaining the plain language rule, and he got tired of fighting me and buried it as a nonprecedential order. Or, in another case, the state Supreme Court, in a state law case, had a clear rule in a tort case that another judge on the panel didn't like. He persuaded the second judge on the panel (Mr. FDPCA, asa
matter of fact), and Judge Cummings couldn't get the votes to make it come out right. So _he_ had me write it wrong, and then _he_ buried it as an order. He didn't think it was important enough for a dissent, which he hated to do.
Not all bad law results are so happy. I recently read a First Circuit opinion where a judge wrote for a unanimous panel that the the statement, "I don't need any of you minorities" is not direct evidence of discrimination because it is ambiguous. But that is clearly wrong. The point is, you can only make this ort of case come out the other way by brute force, not by clever reasoning.
With district court cases, 80-90% of dispositive pretrial motions are slam dunk easy. I will concede that a lot of summary judgment motions (motions for a decision on the law and undisputed facts before trial) are decided for defendants that should not be so decided, but that is because I think a lot of judges do not correctly understand the summary judgment standard. Another 10-15% are clear after analysis, but require work. Real creativity is called for only in a 5% or less of the cases.
What this means is that precedent or cookie cutter application of standards really does, or should, decide most cases. Precedent is not a good guide in the relatively few novel cases that arise, but that''s not surprising. They wouldn't be novel if precedent settled them. So the claims about the utility of precedent are consistent with the claim about the need for creativity in the few cases where it is called for.
IMatters look different from law school for a number of reasons. First, you mainly get appellate cases to study that someone thought were interesting, either because they are hard or they are obviously wrong. Most cases are not like that. Most cases aren't interesting, unless you just like making fun of bad lawyering, which, alas, I do. Probably reflects poorly on me. Second, in law school you don't see the briefs and the record and don't actually hear the lawyers argue. Finally, law school profs amuse themselves and annoy their students by trying to make it look as if every opinion could come out the other way if only you are clever enough. But it tain't so. Ronald Dworkin may be wrong that there is a right answer for all the hard cases, but there surely is a right answer for most cases--a legally right answer, demanded by precedent and statute.
The basis I have for making these claims is a that I have been drafting judicial opinions for a year and half. I worked through maybe 50 appellate cases and actually wrote drafts in about 25 of them. I have drafted maybe 30 district court opinions and written as many or more minute orders, unpublished quickies. So I have what is probably a reasonably representative sample.
--jks