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t Judge, United States Court of Appeals for the District of Columbia Circuit; Chief Judge 1986-91. My thanks for help and suggestions to my law clerks Bradley Karkkainen, J.D. 1994, Yale University; Alexandra Edsall, J.D. 1994 Harvard University, Timothy Simeone, J.D. 1994, The University of Chicago; and to my husband, Bob. 1 Judicial opinion writing has roots in both Roman and early English law, though in neither case were there full-blown written opinions. Roman adjudication was divided between the praetor, or magistrate, and the iudex, a lay arbitrator. Upon receiving the pleadings of parties to a lawsuit, the praetor would craft those pleadings into a formula, which instructed the iudex on how to decide the case. The formula was not unlike jury instructions, although it left both questions of law and fact to the iudex, who then decided the case without written record. The Roman jurists-learned statesmen with no official role-were the other main writers of the system. These jurists rendered advice to both litigants and praetors and published treatise-like commentaries describing the resolution of real and hypothetical problems. See Barry Nicholas, An Introduction to Roman Law 1935 (Oxford, 1962). English opinion writing has its origins in the plea rolls and Year Books. Dating from the early thirteenth century, both the county and the King's courts kept plea rolls--clerk's records that described the pleadings and the outcomes of the cases heard before the court. See Theodore F.T. Plucknett, A Concise History of the Common Law 230-31 (Law Co-op, 2d ed 1936); Joseph Biancalana, Medieval County Courts: A Review Essay, 52 U Cin L Rev 994, 1004 (1983), reviewing Robert C. Palmer, The County Courts of Medieval England: 1150-1350 (Princeton, 1982). Like opinions, the plea rolls encapsulated the decisions of the court. By the last decades of the thirteenth century, the "Year Books" appeared in England. Less formal than the plea rolls, the Year Books were chronological reports, of unknown authorship, containing rough transcriptions of court proceedings. Because they included the arguments made by the lawyers and the reasoning offered by the judge, they offered more of the texture of an opinion than did the plea rolls. See Plucknett, A Concise History of the Common Law at 239-42. With the advent of print, various reports came into existence, largely written by court reporters rather than the judges themselves. The Reports series, however, was written by Lord Coke himself and covered both his own and others' decisions. By the end of the eighteenth century in England, judges routinely "authorized" certain reports by looking over the draft reports of their decisions prior to publication. Id at 248-49. In the United States, meanwhile, many states in the eighteenth century adopted the statutory requirement that judges write their opinions rather than merely state them orally. See

The Rhetoric of Results and the Results of Rhetoric: Judicial Writings