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Getting to the Meat of Chief Justice Roberts' Dissent

An experienced police offer more than a dozen drug busts under his belt and intimately familiar with the crime infested neighborhood properly concluded, based on the totality of the circumstances that he had probable cause to arrest the defendant.  The lower court erred in finding otherwise.

If you came across a passage like this in a legal brief or judicial opinion, you probably wouldn't blink. You've probably seen lines like this one dozens of times, probably written this type of passage or similar ones dozens of times yourself. For many of us lawyers, producing or reviewing this kind of mediocre, pedantic writing comes with the job; it's just another day at the office, to quote a Supreme Court justice who's now garnering extensive media coverage for his literary legal prose.

Now, what if I'd rephrased that same passage to read this way:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three­-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office...

That was not good enough for the Pennsylvania Supreme Court, which held in a divided decision that the police lacked probable cause to arrest the defendant. The Court concluded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not at­tempt to flee. 941 A. 2d 671, 679 (2007). I disagree with that conclusion, and dissent from the denial of certiorari.

Suddenly, you're engaged and captivated... and like some, persuaded. 

Presumably, Chief Justice Roberts realized all of that when he penned his novel dissent from the majority's denial of cert in Pennsylvania v. Dunlap.

Roberts' dissent shows the power of unusual, stylized or simply out-of-the-ordinary legal writing. But does sexing up that proverbial three-dollar steak and selling it as a filet mignon help to highlight the importance of the issues at stake (no pun intended), or does it obscure the meat of the matter? 

That's one of the issues that Scott Greenfield beefs about in his post on the Roberts dissent at Simple Justice. He argues that everyone's so focused on Roberts' style they've overlooked the substance of the position: that it would essentially make arrests based on hunches constitutional. Greenfield notes that of all the posts on the dissent, only Steve Vladek at Prawfs Law Blawg delved into the underlying legal issues. (As an aside, Greenfield's post also reflects, to some degree, the current state of the law blogsophere, where just a small percentage of bloggers routinely offer meaty commentary, while many are content to simply pass along scraps). 

What's your view of Roberts' dissent?  Would an ordinary lawyer get away with this type of writing? And did Roberts fulfill his apparent purpose of getting attention for his position, or in doing so, did he obscure any real discussion of either side. Post your comments below.

Posted by Carolyn Elefant on October 15, 2008 at 11:30 AM | Permalink | Comments (3)


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