Craft and Power

[I]t is as craftsmen that we get our satisfactions and our pay.

—Learned Hand The Bill of Rights

Oliver Wendell Holmes—a great judge—said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship.

That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy depends on that authority. That duty obliges courts to explain their decision and reasoning lucidly, since only then can the litigants and we the governed tell what is required of us and see that the court acted lawfully. No court, no judge, no person always achieves high standards of craft. But a court that betrays its duty of craftsmanship is a court that has lost its moral authority and wrongfully asserted its legal power.¹

Such a court is the court that decided Grimes v. Kennedy Krieger Institute.²Grimes is the case (actually two cases consolidated in a single appeal) in which parents whose homes had been part of KKI's research into ways to abate the dangers of lead paint in old buildings sued KKI on the grounds that KKI's negligence had harmed their children. They centrally claimed (the court seems to say) that KKI had failed to warn them properly about dangers to their children arising from the lead paint that had once been used in their homes.

The Maryland Court of Appeals (Maryland's supreme court) eagerly commanded the public force. But its justification for its judgments and decrees fell intolerably short of the requirements of judicial craftsmanship in area after area.

The most primitive requirement of the judge's craft is writing well enough to be understood. Even this task overwhelms the Grimes court. Its opinion is swamped with errors in syntax, grammar, punctuation, and even proofreading. It is awash in sentences that cannot be parsed. It is flooded with passages so bungled that they stupefy more than clarify. For example: "If consent agreements contain such provisions, and the trial court did not find otherwise, and we hold from our own examination of the record that such provisions were so contained, mutual assent, offer, acceptance, and consideration existed, all of which created contractual relationships imposing duties by reason of the consent agreement themselves (as well, as we discuss elsewhere, by the very nature of such relationships)." Or: "Though not expressly recognized in the Maryland Code or in our prior cases as a type of relationship which creates a duty of care, evidence in the record suggests that such a relationship involving a duty or duties would ordinarily exist, and certainly could exist, based on the facts and circumstances of each of these individual cases."

This is not how competent law students, much less competent judges, write. All the students in my last brief-writing course wrote more correctly and comprehensibly.

Second, a court's duty of explanation requires it to set out a case's facts, its procedural history, and its legal issues. Grimes spends eight of its twenty-eight thousand words on the facts, but its account is so jumbled and disjointed that even a heroic reader retires defeated. Ordinarily, appeals go from trial courts to intermediate appellate courts, but the reader never learns how Maryland's highest court got the case. Statements of issues litter the opinion, but the reader can only wonder whether those are the issues the litigants actually posed.

Third, a court's duty of justification obliges it to identify the governing law and then show how it applies to the issues at hand. Grimes botched both obligations.

The trial courts had granted KKI summary judgment because they concluded that even if KKI had done everything the plaintiffs alleged, it had violated no legal duty. The Court of Appeals' job was...