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As advocates, and especially as judges, we must guard against a phenomenon I have identified as “Law Feelings.” #AppellateTwitter 1/
“Law Feelings” can be identified by a sentence that may begin with “I feel that. . .” and go on to state a legal conclusion without reference at any point to a relevant statute, rule, or case. The legal conclusion may, in fact, be contrary to authority. 2/
As an advocate, Law Feelings may come up when one is not entirely prepared to make the argument one unexpectedly finds oneself making. Law Feelings may inadvertently come out at oral argument when asked a difficult question that may be outcome determinative. 3/
As a young advocate, other, more senior opposing attorneys’ Law Feelings sometimes trumped my carefully-researched, passionately-argued points. Like, to the point where the text of the statute was met with “Aw, come on, Your Honor.” 4/
Attorney Law Feelings are frustrating. In response, I may or may not have filed a brief in federal court post-hearing, noting the problem, and quoting the famous line from The Big Lebowski. It was satisfying, but not terribly effective in curbing the Law Feelings epidemic. /5
Judge Law Feelings though are the worst. In trial, they might be identified by a ruling that consists of “I’m not doing that.” They are harder to spot in the appellate context, without the benefit of the briefs and the record. They seem to be more common outside civil cases. /6
Moralizing, charged language, unwarranted inferences, assumptions, unkindness, these are all subspecies of Law Feelings. And I get why they can happen. Our work produces discomfort when it leads to results that feel wrong but are legally correct. “Well, that can’t be right.” /7
Sometimes, though, the uncomfortable answer is the right one, and we have to deal with our very human and understandable judicial Law Feelings on our own time, rooting them out of opinions with careful readings of statutes and cases and records. 8/8
