Date: Wed, 26 Jul 2006 14:58:02 -0500

From: John Goldberg

Subject: Long Judgments

I would guess that U.S. decisions concerning primarily questions of substantive tort law are shorter than their English and commonwealth opinions. From afar, the non-U.S. opinions strike me as generally more attentive to precedent (including the facts of precedents) than their U.S. counterparts. I don't mean by this that U.S. judges do whatever they want in tort cases (though perhaps some do). It's a subtler difference over what it means to interpret and work with case law, with American courts roughly content to cite leading cases for general propositions, and English and Commonwealth courts more interested in parsing factual and doctrinal nuances across a wider body of precedents.

Another way to put the point is that U.S. courts' tort opinions tend to achieve a balance (perhaps unstable and perhaps undesirable) between doctrinal and 'soft' policy analysis, as a result of which, neither mode of analysis is pushed very far. But of course all of this is anecdotal and impressionistic.

-----Original Message-----
From: Geof McLay
Sent: Wednesday, July 26, 2006 1:43 PM
To: 'Robert Stevens'; 'Tariq Baloch'
Subject: RE: ODG: Long Judgments

Do we need a bit of comparative perspective?

I guess the question I have as someone who has been teaching a US first year torts for the first time is why US tort decisions appear a lot shorter - is there a greater consensus as to the basics (perhaps because of the restatement process?), a different legal method, or an American avoidance of addressing the big duty issues that we so delight in?

Second are tort decisions actually longer than other major decisions, or are we all concerned about just a small fraction of the tort output. Is tort law just in a bad phase? By rough assumption is that the High Court of Australia is pretty long on most things?

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