Martha Woodmansee has pointed out that
the law has yet to be affected by the "critique of authorship" initiated by Foucault and carried forward in the rich variety of post-structuralist research that has characterized literary studies during the last two decades. Indeed, . . . it would seem that as creative production becomes more corporate, collective, and collaborative, the law invokes the Romantic author all the more insistently.
Woodmansee wrote about the conceptions of authorship that legal institutions bring to bear in deciding copyright-related disputes.2 Nevertheless, the law's ignorance of the "critique of authorship" includes a willful ignorance of the means of its own production. Inasmuch as law-particularly Anglo-American common law-constitutes a continual reinterpretation of its existing texts, this blindness to the collaborative nature of the production of those texts leads to poor interpretation of those texts, misguided law, and a misbegotten approach to traditional United States legal education.
In short, there is confusion about what it means to say that a judge is the "author" of a judicial opinion. A judicial opinion is the quintessential product of a collaborative writing enterprise, as are the written products of the lawyers who participate as advocates in the enterprise that results in judicial opinions. At every level of the trial and appellate process, a judicial opinion is the outcome of the careful consideration of persuasive arguments posed by the parties' lawyers and contained in judicial opinions produced in earlier cases. The collaborative nature of legal writing is such that no one takes seriously any real notion of copyright interests in the products of legal writing produced by lawyers and judges in the course of the judicial process. Literal, unattributed cutting-and pasting, instinctively considered plagiarism in most contexts, is simply everyday professional practice. In short, collaborative writing communities produce judicial opinions. Those opinions are not the inspired products of judges who excel as original authors in any traditionally Romantic sense.
The collaborative nature of judicial opinions is, however, inconsistent with conventional ways in which both professional and popular opinion represent judges-as authors in the creative, originating sense. Individual judges are lionized in a manner inconsistent with their real accomplishment, and the study of law as "literature" thereby threatens to engage in a type of misreading that is far more conventionally applied to poetry or fiction. Moreover, the near universal failure of legal scholars to explicitly recognize and examine the collaborative nature of legal writing of all sorts-including, of course, the briefs written by lawyers that the courts consider before rendering their decisions and writing their opinions-undermines the ways students are taught to read legal writing. In other words, the emphasis in United States legal education on the judicial opinion as the principal-and almost exclusive- subject of study inevitably leads students to read one way: as if they are reading great literature from which they are meant to derive wisdom they can later regurgitate at the appropriate time. Instead, because law students are lawyers-in-training, they should read every opinion as just the latest voice in a never-ending conversation in which they themselves are necessary participants.
"What is a Judicial Author?,"
Mercer Law Review: Vol. 62:
2, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss2/5