A blog on practice in the Nation’s second-most powerful court

A little-noticed recent article by new D.C. Circuit judge Brown Jackson

Today, Ketanji Brown Jackson was confirmed as a judge on the D.C. Circuit by the U.S. Senate.  You probably know that Judge Brown Jackson sat for eight years on the D.C. district court and, before that, served on the U.S. Sentencing Commission.  She also practiced for several years at Morrison & Foerster LLP.

Those looking for more insight into Judge Brown Jackson’s views might consider reading her last-published article: a review of Harvard Law professor Martha Minow’s 2019 book, When Should Law Forgive?  Here are some excerpts from the review:

    • forgiveness is “an enduring means of conflict resolution that is far too often overlooked”;
    • forgiveness is “a conscious, deliberate decision to forgo rightful grounds for grievance against those who have committed a wrong or harm”;
    • “legal structures presently provide absolution for some individuals in some circumstances and not for similarly situated others”;
    • “bankruptcy law acknowledges that debt has a societal dimension beyond the lender-borrower relationship” and “looks to the future of the broader community, not just at a specific past problem”; and
    • “forgiveness has not been afforded to indebted consumers, students with loans and most criminal defendants, even though the choices and circumstances of many youths on rough inner-city streets resemble those of the child soldiers who receive conditional amnesty in the postwar aftermath of modern armed conflicts.”

Perhaps the most immediately useful takeaway for practitioners, however, comes in Judge Brown Jackson’s pointed critique of Minow’s writing style:

Minow presents and then reiterates many of the same examples to illustrate different points in different contexts (South Africa’s experience is one that is relentlessly re-referenced), and at each mention, the primary plot points are reintroduced anew, without any acknowledgement that the reader has heard this one before.

Thus, it sometimes feels like just at a moment of full engagement, just when the book’s analysis is starting to gather steam, the narrative sputters and gets bogged down with repetition — like a catchy song that persistently returns to a rhyming refrain — and when this happens, it takes effort to find one’s place again.

“Bogged down with repetition.”  That phrase reminds us of Justice Scalia’s warning in Making Your Case: The Art of Persuading Judges:  “Repetition bores, and boredom invites skimming.”  Always a good reminder for brief writers—and, apparently, Harvard Law School professors.