I always find it a bit puzzling when district court judges — who decide cases themselves, without a panel of colleagues– refer to themselves as “we” in an opinion. I can understand the universal “we” in the context of an appellate panel; the “we” refers to the multiple judges in the majority. But who is the “we” in the context of a single-judge opinion? Is that supposed to be the judge and his judge friends? The judge and his law clerk? I suppose “we” sounds more oracular than just “I,” but it still seems odd to see it in an opinion by a single judge.
UPDATE: In the comment thread, some readers suggest that district court judges properly use “we” because their rulings are understood to be rulings of the entire Court as an institution. This is a possibility, but I’m not sure the argument works. First, individual judges who are members of the same Court can disagree on an issue, so one judge’s ruling isn’t necessarily the view of other judges. Second, I don’t think I have ever heard a single trial judge use “we” when making a ruling from the bench in open court. In my experience, at least, judges in court usually are comfortable with using “I” when making oral rulings; it’s the switch from oral to written decisions that seems to trigger the occasional switch from “I” to “we.”
I think it’s also worth noting that a lot of legal scholars try to avoid the first-person altogether on the ground that it seems less authoritative. So where you might write “In this article, I argue that the moon is made of green cheese,” some authors (and lots and lots of law review editors) will want to change that to “This article argues that the moon is made of green cheese.” I usually try to resist this, as I prefer my writing to be as direct and honest as possible. The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes. So I would rather just say “I.” But I’m probably in the minority. Er, rather, the view stated in the preceding sentences is probably in the minority.
It’s an odd habit. My judge (I clerk on an appellate court) has noticed that his clerks have a habit of referring to the district court as “they.” He corrects us every time and has tried to break us of the habit, with limited success. Every now and then he asks where we suppose the habit comes from. The best I’ve managed is three guesses:
1. Conditioning from reading lots of appellate court opinions. Most opinions that lawyers read for any reason are from appellate courts and from the Supreme Court–probably the overwhelming majority. As such, maybe our brains get conditioned to the idea that a judicial opinion uses “we.”
2. “We” = the court as an institution. Three-judge panel opinions speak for the entire court (not in the way that en banc opinions do, of course, but it’s still proper to say “the Second Circuit held X” when discussing a panel opinion), and thus many people probably think of the “we” as referring to the court as an institution rather than to the three particular judges on the panel. Similarly, district court opinions speak for “the court.”
3. By-product of a lack of grammatical rigor. “They” has crept into common usage as a gender-neutral singular pronoun… perhaps the “we” in single-judge opinions is a by-product of this.
Perhaps I’m overly cynical, but the “Royal We” also provides cover for the jurist. It permits him (or her) from having to take personal responsibility for the decision.
[OK Comments: How does it do that, except rhetorically?]
I think they sometimes prefer “we” because they feel it is a more appropriate pronoun for “this court” than “I” (which might suggest they are speaking for themselves) or “it”. E.g., “This court finds no evidence” -> ? The problem is that we don’t have a formal first person singular pronoun in modern english.
I have always assumed that district judges are either: (a) purposely using the royal we (pluralis majestatis) to indicate that they are speaking on behalf of the district court as an institution and lend their pronouncements an air of formality; or (b) unconsciously mimicking appellate opinions, which establish literary conventions for judicial legal writing by virtue of the fact that appellate opinions generally are the most widely published and read. Either explanation may be true, depending on the judge. I think district judges ought to avoid it, but that’s a personal quirk of mine (as opposed to some rule of proper usage that I could justify).
I always think that they are confusing the proper appellate majority’s “we” with some sort of weird, judicial-royal “we”. I’m also glad to see that this bothers someone other than me, as this has been a pet peeve of mine for a while.
Or you can think of the appellate “we” as referring to the circuit as a whole, bound by their decision. It’s not very important very often, but the district opinion does bind his colleages in the same district until an appeal makes it circuit wide precedent. Since “we” are going to be bound by “me” in any case, it may be a useful rhetorical decision to pretend “we” made the decision collectively in the first place or that the single judge through some transubstantiation stands in the place of the district judges as a whole.
[OK Comments: Dylan, are you sure that district opinions bind other judges in that same district? I suppose this is a local rule, but my sense is that this isn't the rule in most districts.]
Picayunely yours: district court judges decide cases with a panel of colleagues not infrequently (pursuant to Section 5 of the Voting Rights Act in particular).
Nitpicks aside: I suspect the “we” judges (or their clerks) are also trying to avoid saying “I” & become tired of referring to themselves blandly as “the Court”.
I always thought the “we” referred to all the judges of that district court. So for example, Judge Sedwick, Judge Beistline, etc. are the District Court for Alaska. Even though Judge Sedwick might be the only judge writing a particular opinion, he can use “we” because he is speaking for the whole district court.
[OK Comments: Jan, do you think that Judge Sedwick polls the other judges on the issue before using "we"?]
Why such reluctance to say “I”? It is, in fact, their opinion (or at least it should be, regardless of their clerks’ input). I find it weird that a judge would seek to avoid recognizing verbally that they are the sole decisionmaker (at least until the appeal is taken).
Marghlar’s comment seems to me dead-on. The relatively few opinions in which judges do use “I” strike me as more fluid and honest. Legalese is bad enough without having to read sentences like, “The Court [note the caps] finds the defendant’s motion to be well-taken and grants the motion in full.” Two district judges who I believe still use “I” are Judge Motz (D. Md.) and Judge Carr (N.D. Ohio). I see that footnote 2 in this recent opinion by Judge Motz confirms as much: http://www.mdd.uscourts.gov/Opinions152/Opinions/Walmartopinion.pdf
When trial judges speak, they are ruling for the court as an institution; they are not giving their personal opinions. So the first person singular is not appropriate.
But I agree that the “Royal We” is awkward. The third person seems most appropriate to me (“the court finds. . .”).
[OK Comments: Exactly what institution are they ruling for? Here's the test: have you ever heard a single judge deliver a ruling using "we" when speaking from the bench? ]
Orin,
I’m with the State Court Criminal Defense Lawyer.
I’ve also met and/or appeared before at least three trial court judges (I can think of) who routinely used “we” to describe themselves when making rulings from the bench.
[OK Comments: That's helpful, Dave. I wonder, though, why does using "we" and not "I" make the decision less a matter of opinion and more an official ruling of the court?]
Maybe the District Courts are acknowledging the relatively large role that their law clerks play in drafting written opinions? That would explain the difference between singular oral remarks and plural written ones.
[With my tongue out of cheek, I think the Curmudgeonly Ex-Clerk's explanations are the most likely to explain the phenonomenon, although neither justifies it.]
I encounter this issue as a private practitioner as well. I frequently write memos to clients on which I am the only signatory, yet I am constantly having to resist the temptation to write “We believe…”
I didn’t mean to suggest that the usage was correct, just to hazard a couple of guesses as to where the habit might have come from.
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Isn’t the answer simply that saying “we” imbues the opinion with more apparent authority? To say “I” underscores the individual standing of the decisionmaker. “We” sounds more authoritative (it’s not just “me”). I think, for the same reason, it is used as a distancing device (a “nothing personal”) kind of move. “We” the court, have decided against you. “Our” opinion is entitled to great weight because we are plural, and not an individual human being, or because we are an institution.
Professor Kerr is entirely correct in his responses to the commenters who have suggested that a decision by a single district court judge binds the court as a whole. That is incorrect. In contrast to a panel decision by a federal court of appeals, which binds bind the court as a whole unless reversed by an en banc panel, a decision by a single district court does not bind the district court as an institution. See United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987) (“[A single district court decision] is not binding on the circuit, or even on other district judges in the same district.”); Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977) (same); Weigert v. Georgetown Univ., 43 F. Supp.2d 5, 7 (D.D.C. 1999) (decision by sister court of United States District Court for District of Columbia “does not constitute mandatory authority to which this court is bound to adhere”); In re Korean Air Lines Disaster, 664 F. Supp. 1478, 1480-81 (D.D.C. 1986) (opinions of one judge of a United States District Court “are not controlling law” even within same district).
Here as on Steve Bainbridge’s blog, you’ve got a nice set of observations regarding “we.” I just assembled a short essay on the first person at http://papers.ssrn.com/abstract=916018. Your point is sociolinguistic, whereas mine is strictly syntatical, but in all events it’s good to see attention being paid to carelessly used pronouns.
Pronoun trouble.
I never said that the decision of a single judge binds the future actions of other judges on that court. Judges do issue rulings on behalf of the institution, but the next judge speaking for institution can choose to come to a difference conclusion.
When we lawyers write briefs, we generally write, “the district court ruled. . . .” We generally don’t write, “the distirct court judge ruled. . . .” That’s a recognition that we’re challenging the ruling of a court, not just of a single human being.
Finally, I have conceded that “we” is awkward. That’s why single judges generally don’t use it when speaking. I think courts should generally speak in the third person, “the court holds that. . . .”
Use the third person. Problem solved.
[OK Comments: Got it; I think we agree. At the same time, though, it's interesting to note that there are exceptions to the general practice rule. For example, I think a good briefwriter points out the identity of the judge below or in other precedents if that helps his case, either because the judges who agreed with his position are highly respected or the judges who disagreed are less respected. For example, if I'm writing an appellate brief, and the closest precedent is a Second Circuit opinion written by Learned Hand or Henry Friendly, I will certainly point that out; I'm not going to say that "the Second Circuit has ruled," but rather I will say, "In an opinion for the Second Circuit, Judge Learned Hand ruled....", etc.]
I always assumed it was related to the “royal we” and represented a personal detachment from the subject matter. If a judge wants to write opinions with a singular pronoun, I would prefer that they use “the Court” or “this Court” rather than “I”. Using “I” makes an order or decision sound too casual and conversational in tone, IMHO.
I would note that one or two district judges in the SDNY appear consciously to use the phrase “mea sponte” in written orders and opinions when he introduces a topic on his own without it having been raised by the parties rather than the plural “nostra sponte” (which also appears in single-judge opinions albeit more rarely I think).
Of course, the whole issue could be avoided by using the phrase ex mero motu…
Per Wikipedia….
“Three groups are permitted that usage: pregnant women, royalty, and schizophrenics. Which one are you?”
—United States Navy Admiral Hyman G. Rickover (speaking to a subordinate)
Mark Twain allegedly extended this privilege to “people with tapeworms”.
“The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes.”
You plus the various editors. In my journal experience, to the degree that my staff and I convince the author to leave out a point we consider to weaken the overall argument, or change her interpretation of another person’s writing to align more closely with what seemed to us to be the plain meaning, or note a parallel development in another field, even the substance of the article in its final form is about 97% the author, 3% the editors. And the bluebooking certainly owes a greater debt. Still, I always fight to let the author leave the personal pronoun in. I do so not because I have trouble saying that an inanimate object or a concept is making an argument (I’ve said “Originalism claims X” rather than “Originalists claim X,” simply because it’s easier to assign a claim to a theory than to the entire class of people who may describe themselves as adherents of the theory yet not make all the claims that are associated with it) but because not letting people use personal pronouns often leads to their using “it” without an antecedent, which makes me much crazier.
As for using “we” in legal practice, one of my colleagues got over his initial discomfort in essentially plagiarizing past briefs and memos in writing a regulatory comment by being reassured by his fiancee that all of the work with the firm’s name stamped at the bottom was written by The Firm. And whatever he wrote also was written by The Firm. I pointed out that that means he can’t take pride in his own original writing as “his,” but he finds enough comfort in the pride of owning the organization and em dashes.
We don’t see what all the fuss is about.
Not only are district court decisions not binding on anyone else, they aren’t even binding precedent as to the judge who issued the decision (they are binding only in the same case, by law of the case and preclusion doctrines):
“A decision of a federal district judge is not binding precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different case.” 18 Moore’s Federal Practice 3D § 134.02[1][d].
I think this habit comes from the “editorial ‘we’”.
From Wikipedia:”The editorial we is a similar phenomenon, in which editorial columnists in newspapers and similar commentators in other media refer to themselves as we when giving their opinions. Here, the writer has once more cast himself or herself in the role of spokesman: either for the media institution who employs him, or more generally on behalf of the party or body of citizens who agree with the commentary.”
I’ve noticed the use of “we” in this manner when reading editorials or advice columns in various magazines, even though the editorials or columns are written by a single person. The Playboy Advisor is a good example of this; written by one person but always uses “we.” But I only read that for the articles.