by William D. Popkin. New York: New York University Press, 2007. 320pp. Cloth $45.00. ISBN: 9780814767269.
Reviewed by Charles C. Turner, Department of Political Science, California State University, Chico. Email: ccturner [at] csuchico.edu.
In EVOLUTION OF THE JUDICIAL OPINION William D. Popkin presents an authoritative history of the practice and institutionalization of oral and written appellate court opinions. While the bulk of the text focuses on the American Supreme Court, English and French systems, as well as American state high courts are discussed as well due to their impact on American judicial culture. Any scholar who has searched for parts of the history of judicial opinions will be thankful to have so many pieces of the puzzle collected in this single volume. Popkin approaches the development of judicial opinions from a historical, institutionalist perspective and gives serious weight to the effects of legal realism. Popkin relies on both direct, empirical evidence of court practice as well as indirect interpretation, to draw conclusions about change over time and to make normative observations about these changes and how an opinion writing culture should develop in the future.
Popkin’s review of court opinion evolution is divided into three main phases: early development and influences, nineteenth century style, and contemporary practice. To examine the origins of American judicial opinions, Popkin explores the English common law tradition and its transition from claims of expounding the law, through competition with a dominant legislature, to more recent acknowledgements that judges are making law. Popkin identifies the need to establish institutional authority as one of the key struggles that has influenced both English and American courts. The political goal of securing authority, in combination with an evolving legal culture, has led American courts to abandon seriatim practice for a single voice, and then develop a multi-opinion norm, which is really a return to a modified seriatim, Popkin argues.
The historical dimensions of Popkin’s book are impressive. The author makes extensive use of official documents and correspondence in his examination of the causes of eighteenth and nineteenth century practice. Also of note are the impressive appendices that document Popkin’s creative approach to gathering data and empirically testing his claims. For example, one appendix offers a lengthy and helpful history of law reporting in individual states from the colonial era through 1860. Other appendices explain his technique for determining changes in state nonunanimity rates over time.
Popkin’s work is at its strongest when he explicates the historical development of opinion writing in English and American courts. In particular, with the latter, Popkin goes to great effort to present both federal and state court practices, [*196] particularly law reporting, from the colonial and post-revolutionary eras. This story of professional law reporting in America is a fascinating one and worthy of the attention Popkin gives it. He also presents evidence that the historical lack of a strong and independent institutional base for a judiciary, and the culture of judging as a specialized science practiced by experts, led judges to present opinions as individuals rather than as a collective body. The impetus for a shift to the “opinion of the court” format in American practice in the early nineteenth century was an outgrowth of three needs: the need for a federal judiciary with public authority to compete with the powerful legislatures of the day, the need to know what the law was in a decentralized geography, and the “democratic imperative” for judges to appear politically accountable for their decisions (pp.60-61).
After addressing these changes in Supreme Court practice in Chapter 3, Popkin carries out a similar task for state institutional style in Chapter 4, looking at the thirteen original states, plus Vermont and Kentucky. Examining statutes and law reports, he concludes that, while state practices varied over the course of the nineteenth century, there was a move toward official reporting and a replacement of seriatim opinions with a written opinion of the court. While these changes began to take place in some states prior to the Civil War, the transition to modern practice was completed in the latter part of the century with the emergence of the West National Reporter system (pp.100-101). Though there is surprisingly little discussion of the development of content in the written opinions themselves (e.g., argument, style, and length), Popkin gives a thorough accounting of some important aspects of nineteenth century state court practice.
After carefully tracing the institutional development of the court system through its opinion writing process, Popkin turns to an examination of institutional and substantive sources of law and the significant increase in nonunanimity in both the U.S. Supreme Court and state courts in the twentieth century. Popkin offers persuasive explanations for this shift, though the empirical evidence is, at times, less conclusive. Popkin argues that the emergence of legal realism as an influence on judicial culture is the best explanation for the increase in separate opinions at both levels. The operational (discretionary docket, caseload) and individual (influence of Chief Justice, professional background of justices) changes he describes, however, also seem like reasonable rival explanations, and he does not necessarily persuade his reader that legal realism is the definitive cause. At times, Popkin seems to suggest that his inability to confirm rival explanations empirically is evidence in support of the impact of legal realism, which he cannot measure directly (pp.122, 134). Of course, in Popkin’s defense, seeking out a non-operational cause in this case may require an interpretive approach rather than an empirical one, and the discussion is useful regardless. Moreover, his state court data are impressive in demonstrating a rise in separate opinions in forums that have previously received little attention on this topic.
Popkin’s final chapter explores individual judicial style in opinion writing and, in addition to offering an [*197] empirical examination of the types of voice and tone present in a particular judge’s (Posner’s) opinions, makes a normative case for greater use of what he identifies as “personal voice and exploratory tone” (p.143). This style speaks to a broad, lay audience and admits that cases can be difficult to decide and outcomes, uncertain. The author argues that this approach to writing is a descendent of the seriatim tradition and helps to democratize an inherently elite institution through what he terms “democratic judging” (p.169). Whether or not one ultimately accepts the need for a more widespread use of this personal, exploratory approach, Popkin’s analysis of opinion style is astute, and his plea is well made.
Though the book has many strengths, two minor shortcomings are worth noting. First, in addition to thoroughly describing English precursors to the American tradition in Chapter 2, Popkin includes a few pages on French traditions as well. While an interesting comparative case, the French model is not presented in sufficient detail to create a persuasive case regarding its influence on the American model. Second, Popkin’s commendable use of state high court data begs the question of whether federal appellate court practices might also be able to tell us something about the evolution of judicial opinions. His ultimate interest appears to be in the behavior of the US Supreme Court, which seems appropriate given his focus on institutional change and that body’s trend-setting leadership.
While the conclusions seem to overreach at times, and while some of the normative pleas late in the book may not be relevant to all audiences, EVOLUTION OF THE JUDICIAL OPINION contains a wealth of historical information and empirically-based argument that provides the reader with a thorough discussion of how the contemporary approach to judicial opinion writing has developed. It will prove to be an indispensable reference for those seeking a well-documented accounting of the development of opinion writing and judicial authority. The most fitting audience for this book is the law and courts scholar or student who wants a comprehensive understanding of the historical development of American court practice and culture. The procedural and institutional aspects of court opinions are often overlooked, and Popkin offers a first rate explanation for how judicial opinions have evolved.
© Copyright 2008 by the author, Charles C. Turner.