These Are Trained Judges, Readers! Don't Try This Yourselves at Home!

Readers of today's opinion in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President (which I think got it largely right in its substantive analysis), might notice that it included 26 exclamation points (not counting one in a quote from President Trump). Here is just a subset:

The Founding Fathers knew this! …

Please—that dog won't hunt! …

The causal chain contains at most two links, and it is certainly not highly attenuated! …

Please! …

I agree! …

Taken together, the provisions constitute a staggering punishment for the firm's protected speech! The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients! …

Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary's authority to resolve cases and sanction parties that come before the courts! …

I appreciate that the author is a federal judge, and I'm not, but my sense is that the exclamation points do more to detract from the persuasiveness of the opinion than to advance it. And even if it works for a judge, I would strongly recommend lawyers to avoid such massive use of exclamation points—indeed, even any use of exclamation points. ("Quod licet Iovi, non licet bovi," as my father liked to quote.)

To pass along again (albeit imprecisely) an exchange I blogged about in 2007,

[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]

A. Another thing I learned about legal writing: Don't use exclamation points for rhetorical emphasis. And all-caps — don't do that, either. Bold is also very bad. So is italics: It's OK to use it to highlight important terms in quotes, or terms that you're trying to distinguish from each other in your arguments, but don't use it as an exclamation point.

B. But what then are you supposed to use for rhetorical emphasis?

A. How about … forceful arguments?

Comments

[LexAquilia]

I wonder if the !'s might be arranged to cleverly spell out T-O-R-T-U-R-E ala USN Commander J.Denton Jr.?

[Paladin_44]

Admiral Denton, please!
OK, he was a CDR then, but I think he'd been selected to CAPT in the latest selection board - BUPERS and intel people knew what he was accomplishing by then.

[Sisu]

Perhaps. Repetition of the "lie" / self-serving, tyrannical, bloviation, i.e., "judicial supremacy", does not alter the Constitution. ... And, prior executive and congressional acquiescence to "Lie." is not prospective validation. ... It is a "Lie." and SCOTUS' allowing "inferior Court" constant overreach is also not validation.

[Drewski]

I, too, would like to express deep outrage at your lighthearted joke.

[decline to state]

This may just be his style. I looked at a couple other opinions of his and they also regularly used exclamation points. He's been a judge for 23 years so it hasn't got him impeached yet, but maybe that's why he's still a district court judge.

Here is the opener to his opinion in US vs. AT&T et al (2018):

"If there ever were an antitrust case where the parties had a dramatically different assessment of the current state of the relevant market and a fundamentally different vision of its future development, this is the one. Small wonder it had to go to trial!"

And he uses several more in the short conclusion section of the opinion (I'm not going to read more and can't text search the version I'm looking at).

[TwelveInchPianist]

Yeah, the nice thing about being a judge is that you get paid the same whether you write well or poorly. Or make good decisions or bad decisions.

[Bubba Jones]

26 exclamation points in 73 pages.

More than I'd use, but hardly a problem.

[F.D. Wolf]

From District Judge Fred Biery today in Texas Association of Money Services Businesses v. Bondi (W.D. Tex.)

A FOR WHAT IT IS WORTH ADVISORY

A few days after the preliminary injunction hearing, two things occurred:

1. A money laundering, drug dealer appeared before the Court. He was asked, “What is your method to launder the proceeds to send to whom you owe it in Mexico?” “I buy houses and then sell them.” The Court: “Would you ever go to a casa de cambio and convert dollars to pesos in $200-$1,000 denominations to launder the drug money?” “No,” as he smiled and chuckled.. Had the colloquy occurred in text messages, he might have used “LOL."

2. At about the same time, a retired bank executive friend who is aware of the case through press coverage said, “We (the banks) send millions of those ($10,000 and more CTRs) to the government and often wonder if anyone looks at them.”

Signed this 27th day of May, 2025.
_________________________________________________
FRED BIERY
UNITED STATES DISTRICT JUDGE

These judges seem intent on destroying the reputation of the judiciary. Any attorney who filed a motion entitled "FOR WHAT IT IS WORTH ADVISORY" would be sanctioned. This is the action of a clown, worthy only of derision and disdain, and, in a word, contempt.

https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172831691/gov.uscourts.txwd.1172831691.61.0.pdf

[ReadMore]

Paul Harvey . . . Good Day!

[Roger S]

There are lawyers who use whatever over-dramatic devices they can. I would find it annoying. Sometimes it seems to work.

[Sisu]

To be "over-dramatic" in writing or speech (recall the "dopeller effect"), it likely is a "tell" as to the weakness in one's argument.

[neurodoc]

Is that the same as the "doppler effect," and how does it pertain here?

[TwelveInchPianist]

I suspect it's the dopeler effect, the tendency of stupid ideas to seem smarter when they come at you rapidly

[JoeFromtheBronx]

!

[thesafesurfer]

The exclamation points no only detract from the opinion they make the judge look like a Democrat apparatchik.

[Noscitur a sociis]

Good point. Conservatives never use exclamation marks gratuitously.

[decline to state]

If only George W. Bush had been aware of this before appointing him. And the Federalist Society will surely apologize for inviting him to so many of their events.

[Martinned]

Well no, proper conservatives use ALL CAPS.

[Riva]

Another judicial disgrace disrespecting the executive branch. Thanks Justice Roberts for setting such a good example for these deranged lower court judges to emulate,

[y81]

The advice to use “forceful arguments” is somewhat question-begging. What makes an argument forceful? My mother taught me to use appropriate syntactic structures to emphasize what needed emphasis.

[Purple Martin]

Yes. So it should be How about … forceful arguments!

[Stephen Lathrop]

B. But what then are you supposed to use for rhetorical emphasis?

A. How about … forceful arguments?

So much for classical rhetoric. Logos only, please. Ethos reserved for judges, and expert witnesses.
Pathos right out.

Sure, I too advise against overuse of exclamation points. But here is some expert typographical advice. Take it only for use outside a courtroom if you must.

An important principle of good typography is to deploy typographic tools to build a graphical analogy for the content of the text. Thus, items of like textual import appear in like formats. Items of unlike import get distinguished by typographic differences. Items which feature differing contextual imports, when presented in like typographic style, interfere with the principle. They may rightly be counted as typographical errors.

Typographic tools to build graphical distinctions are many and flexible. But there are not so many of them that a typographer can be confident he will not run out of necessary distinguishers.

A choice of which typographic family to use, from which creators, can wisely be made based on how much graphical diversity each font family enables. A family with more type weights is better. A family with pre-designed (as opposed to digitally modified) italics is better. A family with pre-defined condensed and extended versions is better.

When a typographer wants to set a line using caps and small caps, a font family which includes purpose-designed small caps for lower case characters is better than one which forces a typographer to improvise by reducing the size of standard capitals to use in place of lowercase. A font family featuring multiple numerical character sets might be better than one without, when any such thing can be found. (Numerals come in diverse designs and spacings; some readily align columns of digits, some do not; also, there are old-style numerals and modern numerals, with the former featuring descenders for some numbers, typically 3s, 5s,7s and 9s. Modern numeral characters lack descenders, and typically feature larger interior counter-spaces. Each kind has its uses.)

Typographic paradise would be all of that capacity to graphically distinguish kinds of textual content, designed into a few families of some standard, highly useful designs, such as Helvetica or Futura, Garamond or Times New Roman. I have never seen such a prodigiously useful typographic tool.

It is not uncommon for a typographer to wish for more graphical distinguishers than his typographic tools allow. In that context, to indulge a prejudice against any jot, or tittle, or exclamation point, is unwise, even if only slightly so. Some expressions customarily depend on exclamation points—think chess notation, and formal logic. More creatively, there are times when an eloquent reply to express dismay, or disagreement, or surprise, might be only one character long—perhaps an exclamation mark, standing alone!

[Noscitur a sociis]

Ethos reserved for judges, and expert witnesses.

It’s like meeting the man of your dreams on your wedding day.

[The Folding Attorney]

Sometimes I long for the days of the IBM Selectric (correcting version, please), but then I remember how ugly underscores looked for emphasis.

To quote an old New Yorker cartoon about a disagreement at a print shop, "The italics are *mine*!"

[Gregory]

Finally, a judge who can write in a manner that trump can understand (though not enough words are capitalized)

[Comment-A]

It sounds like a lot, but at 77 pages for the opinion, that means one exclamation every three pages, which doesn't seem excessive. Maybe they are all bunched together.

[Phanatic]

"which I think got it largely right in its substantive analysis"

Eugene, the judge argues that:

"At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”...As such, “[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rational for the restriction.” Rosenberger, 515 U.S. at 829. Such viewpoint discrimination is “an egregious” violation of the First Amendment."

By this argument, it is a First Amendment violation to deny someone a security clearance on the basis that he is an avowed Communist, or declares his allegiance to North Korea, or expresses the opinion that the United States is an evil country which should be violently overthrown. All of those are First Amendment-protected opinions.

Do you honestly believe that that is is unconstitutional for the government deny security clearances to individuals who espouse those beliefs?

[ReaderY]

Representing a Communist in court in ones capacity as a lawyer is categorically different from being a Communist. The Executive Order is not an individualized security clearance decision based on any characteristics of individual firm employees, but on the firm itself and particularly the firm’s clients. Although I’d use fewer exclamation marks to say so, I agree with the Court that that’s not a legitimate basis for a security clearance decision and exceeds the scope of the President’s unreviewable discretion. Security clearance decisions, to be unreviewable, must be about specific individuals, one individual at a time, and based on specific facts about the individual.

[Phanatic]

"Representing a Communist in court in ones capacity as a lawyer is categorically different from being a Communist. "

Agreed. But that's irrelevant to the judge's reasoning, which is that *viewpoint discrimination* is an unconstitutional factor in deciding who gets security clearances.

That's obviously ridiculous and overbroad and there were nonridiculous and nonoverbroad ways to state that *this* denial of a clearance was unconstitutional.

[ReaderY]

I find myself disinclined to entertain claims involving interpretating the vagaries of the penumbras and eminations of the constitution’s structure on an issue clearly covered by its plain text. I would have left things at the First and Sixth Amendment claims and not gone futher.

[John J. Vecchione]

I was stunned Judge Leon had joined the kids in the use of exclamation points. When I ran Cause of Action I was very grinchy on this subject for young lawyers (although it was usually HR/Development-types who were always VERY EXCITED! about whatever the thing was that day.

I have one caveat Prof. Volokh, italicized words as long as it is one or two can be effective and do not hit the reader over the head but present a tempered and reasonable emphasis.