When writing conlaw, or about conlaw, the first decision that has to be made is how far into it one is going to go, or at least when to stop.
The justices in Stogner really bored in, treating us to a virtuoso display of competing law as history and competing history as law. We learned not only what Justice Chase wrote in his 1798 opinion in Calder v. Bull on ex post facto, but the authorities on which he relied, from the Earl of Clarendon's trial in 1667 to the banishment of the Bishop of Atterbury by Parliament in 1723. This is the microscopic view.
The majority took on the dissent, raising no less than five problems, or criticisms as to its analysis:
1. Historical accuracy
2. Completeness
3. Vagueness
4. Redundancy
5. Pertinence
Having thus disposed of the dissent, the majority decided the case on the ground that it didn't think what the California Legislature did was "fair" when it revived a time-barred statute of limitations in criminal law. The word, or idea, of unfairness was all that the case really seemed to turn on, after clearing the underbrush.
This shows what the Court can do when it really wants to take the microscopic view of what it's doing and explain to the last detail just why something is or isn't so.
Contrast that with its unwillingness to go beyond a certain point in other areas. As we've discussed in recent emails here, the Court uses certain ideas to decide cases but declines to go very far, if at all, in defining them, such as 'legitimate state interests,' 'rational,' 'arbitrary and capricious,' 'equal,' and I suppose several others. It seems as though there is a cultural barrier, call it judgment, that says we'll go this far and no farther in explaining because to do so simply puts us on an infinite track.
On the subject of cultural barriers, the recent Columbia shuttle disaster may be a case in point. A headline the other day on the investigation into the cause said that NASA engineers failed to learn from previous examples of the wing being pierced and thus didn't take precautions that in hindsight might have prevented the explosion and loss of life.
Failing to learn from experience seems a common enough occurrence, but there may be more to it than that. If NASA engineers halted every launch on the ground that something might go wrong simply because someone imagined there might be a glitch, no launch would ever occur. So they launch, and they launch, and they launch and sure enough, the glitch that someone thought of but which didn't get pushed materializes with fatal results.
What prevented the warning thought from getting pushed to the forefront where it would receive the proper attention? Perhaps a cultural barrier, called judgment, that says we'll only go so far and no further. Or, as Adm. Gehman said earlier in the investigation to hindsight critics, "If you're so smart, tell us what's going to go wrong next," a paraphrase.
There comes a point where we don't really want to look further, do we. When an engineer suggested inspecting the wing telescopically before the shuttle reentered, the suggestion was rejected, almost as though we didn't want to know because there wasn't anything to be done if a problem were seen. A judgment call reflecting on the institutional culture of NASA, the world of engineering, and of us, America.
One can always object to doing something on the ground that there may be some defect in the grounds on which you are operating, or in the grounds of those grounds, i.e. the infinite regress process based on which nothing would ever get done. Sometimes the judgment call is wrong as we have seen, with tragic results.
In law we have miscarriages of justice, just as there are miscarriages of engineering. False convictions in death penalty cases are the prime example. We seem unable to avoid tripping over the usual stones in that area even at this late date.
But I was talking about the depth to which it is appropriate to go in looking at conlaw.
Sandy Levinson, in a wonderful article, "Redefining the Center, Liberal Decisions From a Conservative Court" in the July 2-8, 2003 Village Voice, gives an overview of the Court from the opposite end of the telescope, the macro view it might be called.
Writing for a popular audience, in a few paragraphs he looks at the New Deal Court and the Warren Court with a glance at an even earlier day and takes us up to the present Court., showing in brief summary how we got from there to here. This is a good example of the opposite of the Stogner-decision approach to legal writing and explaining. Sorry I don't have the Village Voice URL, but I obtained the article by going to the Voice online.
It seems there are as many ways of writing conlaw, and about conlaw, as there are writers, and the degree of boring in, or of taking the more distant overview depends on a variety of factors such as the point you need to make, and how much time and space are available in which to make it. An editor might say, "I need 750 words on the latest decision," and the result is a column. Or, "Don't give me a law review article."
I don't recall reading about writing conlaw in the sense of the amount of exegesis that should be undertaken, or the degree of historical perspective or distance that one might take. And then there is the question of tone.
As to these it seems more an art form than of something else. Do what is necessary to make your point and consider who your audience is, seems to be the principle, which seems right to me.
Is this a subject about which legal scholars write?
Robert Sheridan
SFLS
