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BNSF Railway Co. v. O'Dea (9th Cir. - July 16, 2009)

By Shaun Martin

Let me give credit where credit is due. And then take some away.

For a long time, Judge Fernandez definitely liked big words. His opinions were scattered with 'em, and it was a sort of trademark for him.

Often (indeed, usually), I thought that the unnecessary use of ten-cent words detracted from -- rather than added to -- the clarity of Judge Fernandez's opinions. And since I'm far from shy, I didn't hesitate to say so. Including a bunch of posts about Judge Fernandez's veribage back in 2005; for example, here, here and here. (I'm not a total prude on this point, and sometimes I think long or unusual words are entirely appropriate.)

But then a funny thing transpired. After 2005, I stopped seeing such an egregious use of ten-cent words. I'm definitely not egocentric enough to assert cause-and-effect, and it may well be that I simply stopped noticing the problem notwithstanding its continuation. Nonetheless, I did perceive a real change in Judge Fernandez's opinions. For the better.

Until today. I typically don't look at the author of the opinions before I read 'em, because I want the experience -- and my reaction -- to be "pure" and without prejudice. But even early on in my reading, after stumbling upon a number of unnecessarily fancy words, I said to myself: "This can only be written by Judge Fernandez."

Let me just give you a taste. Judge Fernandez first uses the phrase "hyaline alembic" -- a term that I not only had to look up, but which doesn't even appear anywhere on Google or Westlaw -- and then uses words like "scry," "pellucid," "trenchant," and "ineluctable" when much less fancy words would do, at least in my pedestrian view.

I admit it's sort of cool that Judge Fernandez knows words like "hyaline alembic" -- words I had never even heard of -- and can find a way to use 'em in a sentence. Though I also think that the advent of the electronic thesaurus somewhat lessens the honor. More importantly, while I'm in full support of having those words in a Reader's Digest quiz, or maybe in fine literature, I'm not sure they really fit in a judicial opinion that's at least allegedly supposed to be accessible to the masses. Maybe in the old days the use of fancy words served to somewhat deify the judiciary (yeah, yeah, I understand the irony of my using that word) and had that purpose and intent, but we're well past that point. And rightly so.

On the merits, the opinion itself is actually pretty cool, and smartly done, at least for procedural freaks such as myself. It's all about whether you can remove appeals of state administrative decisions. Neat stuff if you're a federal courts scholar. Just ignore the lingo.

Full post as published by California Appellate Report on July 16, 2009 (boomark / email).