Written opinions are the primary means by which judges communicate with external actors. These sentiments include the parties to the case itself, but also more broadly journalists, public officials, lawyers, other judges, and increasingly, the mass public. In Creating the Law, Michael K. Romano and Todd A. Curry examine the extent to which judges tailor their language in order to avoid retribution during their retention, and how institutional variations involving intra-chamber dynamics may influence the written word of a legal opinion.
Using an extensive dataset that includes the text of all death penalty and education decisions issued by state supreme courts from 1995-2010, Romano and Curry are the first to examine the connection between retention incentives and language choices. They utilize text analysis techniques developed in the field of communications and apply them to the text of judicial decisions. In doing so, they find that judges write with their audience in mind, and emphasize duelling strategies of justification and persuasion in order to please diverse audiences that may be paying attention. Furthermore, the process of drafting a majority opinion is a team exercise, and when more individuals are involved in its crafting, the product will reflect this complexity.
This book gives students the tools for understanding how institutional variation affects judicial outcomes and shows how language relates to decision making in the judiciary more specifically.
"Romano and Curry add to a growing literature on judicial decision-making that moves beyond simply studying judge votes to examine opinion content. in this book, they provide a clear theoretical explanation for how the language in state high court opinions is influenced by strategic concerns related to their colleagues on the bench and relevant external actors. The book will be highly valuable to scholars of law, judicial politics, and political communications." — Michael P Fix, Georgia State University
"One of the first comprehensive books about opinion-writing on state high courts, Romano and Curry capture the motivations of state high court justices in this stage by focusing on the justices as representatives of specific audiences. In examining the detail of the language used in opinions, the authors bring together our understanding of political communication and judicial decision-making as we learn that justices change how they write opinions for the audiences most important to them. This new understanding of opinion-writing and novel approach to studying it add much to the literature. This work will serve as an important base to scholars who will examine the intersections of state high courts, opinion-writing, and political communication in the future." — Meghan E. Leonard, Associate Professor, Illinois State University
2. Judicial Representation, Written Opinions, and Audiences
3. Writing for An Audience: Framing and Opinion Content
4. Accommodating for Dissent: The Effect of Minority Voices on Majority Opinions
5. Efficiency or Strategy: Per Curiam Usage on State Supreme Courts
6. The Political Ramifications of Opinion Content: Unanimity and Strategic Writing
In Democracy in America, Alexis de Tocqueville famously noted that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." The importance of courts in settling political questions in areas ranging from health care to immigration shows the continuing astuteness of de Tocqueville’s observation. To understand how courts resolve these important questions, empirical analyses of law, courts and judges, and the politics and policy influence of law and courts have never been more salient or more essential.
Law, Courts and Politics was developed to analyze these critically important questions. This series presents empirically driven manuscripts in the broad field of judicial politics and public law by scholars in law and social science. It uses the most up to date scholarship and seeks an audience of students, academics, upper division undergraduate and graduate courses in law, political science and sociology as well as anyone interested in learning more about law, courts and politics.