Justice Kagan Orders Parties To Submit A Brief "Not To Exceed 100 Words"

Students can never again complain about word limits.

|The Volokh Conspiracy |

I impose strict word limits on all of my exams. I usually assign two questions, each with a 1,000-word limit. I do this to fairly assess all papers. There is no way to compare Student #1, who can write 1,000 words in three hours, and Student #2, who can dump 3,000 words in an hour. Students who can write more will invariably stumble onto additional points, even if they have no idea what the right answer is. Quality matters, not quantity. Students should not be rewarded for verbal diarrhea

Students often complain about the word limits. I counter that in practice, they will have to adhere to court-imposed word limits on briefs. I've joked that some amicus briefs I've filed are about the same length as their 2,000 word exams.

Today, Dean Kagan upped the ante. She gave the Oregon Secretary of State a pop quiz:

Supplemental brief requested by Justice Kagan. The applicant, Secretary of State Beverly Clarno, is directed to file a supplemental brief by 8 p.m. ET today, August 7, 2020, addressing the following question: Whether the Secretary of State consents to the Oregon Attorney General's appearance on her behalf in proceedings in this Court. The brief is not to exceed 100 words. Any supplemental brief filed by respondents in response must be filed by 12 p.m. ET on Monday, August 10, and may not exceed 100 words.

100 words! Kagan's docket entry was 85 words. It took nearly as many words to describe the order, as it will to actually respond to it. And it has to be submitted on the same day.

Of course, the Secretary of State could be blunt, and simply respond with one word "Yes." That would be killer. The Respondent should submit a reply with a single word. "Pass."

Update: The Attorney General filed a reply that clocked in at 87 words, almost the exact same length as the order:

The Oregon Secretary of State consents to the Oregon Attorney General's appearance on behalf of the Secretary as an official-capacity party in proceedings in this Court. The Secretary's consent to the appearance should not be taken as her personal agreement as a policy matter with the stay application. The Secretary did not request an appeal; she has deferred to the Attorney General's litigation decisions as the state's chief legal officer. But to the extent that consent to the appearance in an official-capacity proceeding is required, she consents.

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  1. Students should not be rewarded for verbal diarrhea

    Oh dearie me!

    1. He said students, not professors or bloggers.

  2. I does seem to be a yes/no question.

  3. Good for you Josh.

    I learned in law school that the best way to get a good grade is to vomit all over your “blue book”. Don’t waste time thinking what to write. Just start writing as soon as possible and write as fast as possible and kept writing until time’s up. This of course benefits those who can write faster (or these days, type faster.)

    I didn’t get a high grade on my Civ Pro exam. The professor, who admired my answers, said, “You should write more even if at the expense of some organization.”

    1. If the prof does not care for verbal diarrhea, and really who would want to grade a word salad, then post a new grading paradigm. Perhaps, 1 point for each correct proposition, and loose a quarter point for an incorrectly applied proposition. This mirrors the SAT exam grading as every current college grad would have experienced (change came in March 2016 to eliminate penalty for wrong answer)

  4. As the old chief William Hubbs Rehnquist once said no one ever complained about a brief being too short.

  5. “Students who can write more will invariably stumble onto additional points, even if they have no idea what the right answer is. Quality matters, not quantity. Students should not be rewarded for verbal diarrhea.”

    Ladies and gentlemen, I give you . . . the Blackman Rule!

  6. The brief has been filed. The operative text reads:

    The Oregon Secretary of State consents to the Oregon Attorney General’s appearance on behalf of the Secretary as an official-capacity party in proceedings in this Court. The Secretary’s consent to the appearance should not be taken as her personal agreement as a policy matter with the stay application. The Secretary did not request an appeal; she has deferred to the Attorney General’s litigation decisions as the state’s chief legal officer. But to the extent that consent to the appearance in an official-capacity proceeding is required, she consents.

    1. Oh good grief.

      They could have done it in half the words.

  7. I have long found the less I write, the better I do. Doesn’t matter whether academic or professional.

  8. I get why legalese is so verbose – high levels of clarity is not something the English language does very well, and fewer words may add clarity for common use, but not so much when litigation is a potentiality.

    Still sucks to read though.

    1. the hierarchy I invented as a law review editor:

      exact
      clear
      simple
      orderly
      persuasive
      interesting
      entertaining

  9. Oh the horror, for verbosity is a lawyers stock in trade.

  10. Its called a “brief” for a reason, isn’t it? So the exam response should be in kind. JMHO as a research scientist (of sorts).

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