To Consider or to Use? Citation to Foreign Authority and Legal Aesthetics

Andrew Jensen Kerr

In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for inspiration from a source used as legal authority. I wonder if Justice Sotomayor posits this line-drawing problem as a koan to would-be clerks. To my limited ken, the epistemological limits of the English language make it impossible to separate these concepts with precision. I argue that we should instead lobby Bluebook editors to create a new signal that can capture a heuristic of citing something for edifying or contextual value. This is not a purely pedantic or indulgent exercise. Rather this solution reflects a core motivation of lawyers and judges who cite to non-authoritative authority–that it is bricolage, ornamental, an aesthetic. We expect legal documents to look a certain way. Perhaps literary icons like First Circuit Judge Bruce Selya can get away with the no-citation opinion. For the rest of us, there must be a reference to something. Whether it is M*A*S*H*, or rapper Biggie Smalls, or your own planted dissent or concurrence from a previous opinion, the reader expects your argument to have a provenance. Signals reify and concretize this visual need for citation, and at the same time congeal ineffable gradations of inference into discrete pictographic symbols with uniform meanings.

I thus present the signal ß–or sharp S–in honor of the alliterative resonance of Justice Sonia Sotomayor’s own name. She first articulated the nicety of this distinction at a 2009 conference in reference to the perennially debated topic of foreign authority in U.S. courts. According to Justice Sotomayor, judges possess the robotic ability to compartmentalize what they read or experience from what they think or feel. They can look at something without letting it inform them. This feels counter to current trends in constructivist theories of education. It also feels contrived.