Am I the only one who thinks that Delaware judicial opinions have gotten way too long?
Vice Chancellor Travis Laster's recent opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018), is a whopping 246 pages long. People have written world renowned novels in less than 246 pages!
I blame Chief Justice Leo Strine, of course, who has admitted that "My opinions are too long." But why does the rest of the Delaware bench have to copy his lead?
Back in the day, Judge Richard Posner cogently recommended that judges avoid writing opinions that are “too long,” “are burdened with too many citations,” and “tend to ramble instead of clearly defining and discussing issues,” while also recommending that they use "good, plain words and sentences that communicate rather than befuddle.” Richard A. Posner, Judges' Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421, 1422 (1995).
Even further back in the day, a Mississippi jurist put it even better:
The writer takes occasion (as deliberate dicta) to say that the law reports are being rapidly filled with valueless opinions, the printing of which is not only costly, but members of the bar find it a growing and tedious task to search the books to find out the rule in any given case. The facts of a case therefore should not be stated at length, unless absolutely necessary; nor should the opinion in any case be longer than that actually required to impart to the reader the exact question involved and decided.
It is to be hoped that useless and lengthy opinions by the courts, and voluminous and valueless briefs by the attorneys, which involve so much unnecessary work on the part of both the bench and bar, will become a thing of the past.
Wilson v. State, 113 So. 445, 445 (Miss. 1927). Sadly, we are still hoping for that happy outcome.
Finally, going even further back in the days of yore, we find a 1911 Yale Law Journal article expounding on what seems to be a perpetual problem:
As to the length of reported judicial opinions, what do duty or expediency demand? Are we burdened with too long statements and opinions and, if so, can they be shortened and how?
Senator Root of New York, who might be considered an authority, has practically answered these questions in a recent address, as its president, to the New York State Bar Association.
"The mass of judicial reports," he said, in part, "has grown so great that it begins to seem as if before long we shall have to burn our books like the Romans and begin anew. And indeed, where decisions can be found in support of every side of every proposition, authority is in a great measure destrdyed and we do begin anew in determining by the light of reason which authority shall be followed. I wish that our judges could realize officially what so many of them agree to personally--that restating settled law in new forms, however well it is done, complicates rather than simplifies the administration of the law, that the briefest of opinions usually answers the purpose of the particular case; and that the general interests of jurisprudence justify reasoned opinions only when some question of law is determined which has not been determined before by equal authority. On every side the increased complication of life calls for vigorous and determined effort to make the working of our governmental system more simple."
Senator Root has suggested the evil, generally recognized; and the remedy, brief opinions.
A message Delaware jurists ought to take to heart.
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