The Power of Badly Written Judicial Opinions
posted by Nate Oman
Last week I taught Justice Traynor’s opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co.. The opinion is a classic example – perhaps caricature would be a better word – of neoclassical contract law. The issue in the case was the admissibility of parole evidence to construe the terms of a written contract. The traditional rule is that such evidence is not admissible if the terms of the contract are clear on their face. Traynor ruled, however, that parole evidence was admissible so long as the language of the contract is “reasonably susceptible” to the interpretation offered by the party seeking to introduce the evidence. The holding in Pacific Gas is a major relaxation of the parole evidence rule, to be sure, but that is not why Traynor’s opinion makes it into virtually every published contracts case book. Rather, the case is there for the dicta.
Traynor begins his analysis of the question with an anthropological and philosophical aria attacking the very notion of plain meaning. Those who believe in it, we are informed, are the victims of a primitive faith in the totem power of words. (He drops a footnote at this point discussing Egyptian mythology.) Words, he tells us, do not have absolute referents, a fact that he takes to be fatal to the notion of plain meaning. You can have a lot of fun in class with this language. If one is inclined, I suppose that you can follow Traynor down the wooded path to the Golden Bough, or, if you are less anthropologically ambitious, talk about the meaning of meaning. You can also have a great deal of fun comparing the soaring linguistic theorizing of Traynor’s dicta with the much more modest holding in the case. If we really believe that the absence of absolute referents drives a stake through the primitive totem of plain meaning, how exactly do we engage in the inquiry about whether written terms are “reasonably susceptible” of a particular interpretation? I have a sneaking suspicion that it involves judges – perhaps even Justice Traynor – reading the words of the contract and deciding what they mean.
Pacific Gas is a godsend to contract professors, and I can’t help but think that Traynor really wrote the opinion for us. I am grateful. Still, at the risk of looking the gift horse in the mouth, I do wonder if it is good judging. My understanding is that contrary to the doomsayers (including Alex Kozinski) who insist that Pacific Gas is the end of the parole evidence rule in California, Golden State judges continue to exclude extrinsic evidence in the face of clear written terms. Pacific Gas didn’t result in revolution, simply confusion. Given the wild whipsawing between dicta, rule, and holding in the opinion, this is not really all that surprising. My judge always insisted, “We’re not writing for the ages here; we’re writing for the parties.” The craft-oriented modesty of this approach appeals to me. I also suspect that it generally makes for much better law. And yet, I can’t help but note that Traynor’s opinion has been intellectually influential precisely because it is so poorly written. Getting into the case books is another way of influencing the law, and I suspect that the results of Traynor’s thoughts on totem and absolute referents wouldn’t have had nearly the currency that they do had he written a law review article instead.
February 24, 2007 at 10:42 pm
Posted in: Contract Law & Beyond
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Responses (18)
Archit - February 25, 2007 at 1:12 am
All that dicta is supposed to reassure you that the judge decided impartially and to provide ground for its eventual reversal when the underlying reasons change. As Justice Traynor once wrote:
Michael Risch - February 25, 2007 at 9:50 am
I can assure you from experience that California judges routinely exclude parol evidence if the contract terms are clear. Even if they hear the evidence, they often ignore it and go with the clear meaning anyway.
Jeff Lipshaw - February 25, 2007 at 10:14 am
I’ve not taught the case, but it sounds like the classic misreading of Wittgenstein – which is not that words cannot have plain meaning, but that the meaning does not emanate from the words themselves. That is to say: language is a shared construct, and not wholly indeterminate. The post-modernists like to take this to question whether there is any meaning to anything; the better view, I think, is that there are shared bedrock beliefs and mutual understandings that indeed support the idea of plain meaning. The general discussion of this issue is Christian Zapf & Eben Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. J. 485 (1996). Dennis Patterson has written extensively on it as well. And my humble effort in the context of contract interpretation was The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention, 78 Temple L. Rev. 99 (2005).
john - February 25, 2007 at 10:51 am
There’s “poorly written” and there’s poorly written. A case can be confusing and not useful to the parties or future lawyers and yet be a delight to read.
James Grimmelmann - February 25, 2007 at 11:07 am
Bryan Garner writes, of “parole evidence” (as opposed to “parol evidence”):
Fortunately, I don’t think we need extrinsic evidence to decide what you meant by “parole.”
Patrick S. O'Donnell - February 25, 2007 at 3:37 pm
Thanks Jeff. Although I don’t have an article on the topic (and glad to learn of yours), I second your comment re: Wittgenstein and, I too, would have cited Patterson. There’s also a nice discussion of Wittgenstein on meaning (among other things and outside of legal theory) in Michael P. Lynch’s Truth in Context: An Essay on Pluralism and Objectivity, 1998. The idea of the ‘open texture’ or ‘fluidity’ of concepts has proven bewitching to many. Incidentally, even the ’shared bedrock beliefs and mutual understandings,’ or what Wittgenstein himself called a ‘river-bed’ of ‘hardened propositions’ (or ‘grammatical propositions’) is subject to some drift: ‘The river-bed of thoughts may shift. But I distinguish between the movement of the waters on the river bed and the shift of the bed itself; although there is not a sharp division between one or the other’ (On Certainty, 1969). Lynch elaborates: ‘In the course of our conceputal lives, we must, at any particular time, make a distinction between those parts of our conceptual scheme that are relatively unchanging and firm and act to guide the beliefs we form on a day-to-day basis and those beliefs themselves. But we need not think that the difference between these parts–between propositions that we take to be true in virtue of their concepts alone and propositions that are true or false in the light of experience–as being a sharp and absolute difference. Just as the sides of a river determine its course, so the rushing waters of the river slowly alter the course of the river over time. Just as our beliefs change and alter, so do our concepts, and just as our concepts alter, so do our beliefs.’
Jeff Lipshaw - February 25, 2007 at 4:01 pm
And indeed, Patrick, that last pit of the Lynch quote touches on the paradox of sharp lines and gray areas. One of my favorite pieces of the Jewish liturgy is the prayer said at the end of the Havdalah (literally “separation”) service that ends the Sabbath – it acknowledges the transcendence and it seems to me, fragility, of very concept of separation, between the sacred and the ordinary, between light and dark, between the workaday week and the day of rest.
Patrick S. O'Donnell - February 25, 2007 at 4:29 pm
That was exquisite: something I can speak to in my ‘comparative world religions’ course when discussing Judaism!
Jason - February 25, 2007 at 5:50 pm
“We’re not writing for the ages” is certainly one view, but I’m not sure it’s the best one. In a system where everything judges write is recorded forever (even in the age of unpublished opinions, there’s Westlaw) and relied on, I think it’s very short-sighted to have a “this is just for the parties” approach. Like it or not, judges are writing for the ages.
Which is not to say that every opinion should be like Traynor’s here (or even to say that any opinion should be like it), but rather just that the historical perspective must be kept in mind. To deny it exists is to deny some inherent features of our legal structure.
Orin Kerr - February 25, 2007 at 8:40 pm
Jason,
Why is it “short sighted” and a “denial” of “inherent features” to write for the parties? Many judges say this, and generally their point is normative rather than descriptive: I take the point to be that a judge’s role is to resolve cases and controversies rather than play philosopher-king.
Rick Swedloff - February 26, 2007 at 6:55 pm
I too find myself attracted to the modest approach of simply resolving the parties’ conflict — at least in theory. That said, when judges fail to give an adequate look behind the curtain of decision-making, the practice and study of law suffers.
Certainly I don’t take Nate or Orin to be arguing for judges to simply say “yay” or “nay” as to any given motion without writing anything. I assume that they want some amount of pontificating from the court. The question is: where is it appropriate for the court to stop pontificating? Do practicioners and parties want easy-to-follow and easy-to-apply multi-prong tests? Do academics want more than a list of precedent upon which the courts rely (that is, a peak at the judge’s theory of judging)? I say yes. Maybe Traynor is way off base about Wittgenstein and maybe he muddled the parol waters for years to come, but at least he gave practicioners and academics something to grasp onto as they debate the rationale of his argument.
Consider how frustrating it is to read an opinion that has interesting facts, lays out the arguments of both parties, then simply holds in a conclusory fashion for one party or another. In that way, the court could be writing to the parties, “I’ve heard you, I understand the facts and your arguments, and I am going to rule in X’s favor.” Although this might satisfy the modest approach by speaking directly to the parties, I say I’d rather have Traynor.
Daniel Goldberg - February 27, 2007 at 12:58 am
While I certainly agree with Jeff that one should be careful in reading any endorsement of indeterminacy into Wittgenstein’s later philosophy, I also think the issue is not nearly so cut and dried as many seem to think (even anti-skeptics acknowledge that whether Wittgenstein’s grounding of the determinacy of language in practice translates well to the legal language game is a matter of considerable dispute).
Though his argument is generally denigrated as Kripgenstein, I think far too many critics of Kripke’s analysis of a skeptical paradox focus on whether Wittgenstein endorsed semantic skepticism — unlikely — to the detriment of focusing on whether Kripke’s argument stands or falls on its own merits (Professor Leiter mentions the importance of the latter in one of his articles). I am much less persuaded than most that the skeptical paradox Kripke identifies is not both real and quite serious, though I certainly agree it does not imply nihilism (as does Kripke himself).
Shameless plug: I’ve recently written on this issue in the context of constitutional interpretation. (And I address the Zapf-Moglen article, which I find unpersuasive on rule skepticism in general).
Linda Goes - September 6, 2007 at 12:05 am
My husband and I took out a construction loan for protection of lien waivers. My husband and I had a meeting with a loan officer solely to discuss lien waivers and jobsite inspection before they released funds from a construction loan. We talked for 45 minutes with this officer regarding the importance of protecting both the bank and ourselves. Mr. Saxton assured us the band does collect lien waiver and does jobsite inspection before releasing any funds. We did take out the construction loan and at the signing we asked before signing again if lien waivers were collecting and jobsite inspections don before releasing funds. Again they said they take care of everything and we had nothing to worry about. We left feeling very confident we made the right decision. The contract was used to finish off our attic. The contract was for 148,000.00. Many times I went into the bank to make sure the lien waivers were being collected. I was told they are being collected. Mr. Saxton telephoned my husband to say the contractor said the job was much bigger then expected and asked if we needed to increase our loan. My husband asked if lien waivers were collected and if they had inspected the jobsite. He said yes. We increased the loan. We were living in another state and were not on the property. The loan portion for our attic turned out to be 241,000.00. The bank did Not collect any lien waivers. It turns out Mr. Saxton was the contractors primary loan officer. We were thrown into a 3rd party law suit. The bank would not turn over disbursement checking account. I finally got the checks to see why the dry waller was not paid, and the other subs. The contractor spent 71,000.00 on our attic. I filed a suit against this bank and it was dismissed on Parol Law rule. I feel “contingency” should have been brought in meaning, “The dependence apon a stated event which must occur before a contract is binding.” In court I said to our lawyer to ask the judge if our social security #s could be covered. The judge denied covering our ss#s. I want to file a compaint to the Judicial branch of Wi. This is crazy!!
frank - October 17, 2007 at 2:51 pm
I believe that the article and the debate concerning the article miss the point entirely, by presupposing that the reference by Traynor was to Wittgenstein (a linguistic structuralist and analytical philosopher). This is clearly a post-structuralist construction of language that is predominant now in the social sciences in the United States largely due to the incredible respective impacts of Foucault and Derrida on these fields.
g - January 23, 2008 at 1:59 pm
Didn’t Trident (847 F.2d 564) set the stage for subsequent California decisions against Pacific Gas? I actually like the opinion but I was taught that it’s no longer good law.
Linda - April 19, 2009 at 10:48 pm
I am very upset with the legal system in Walworth County Wi. I am a victim in a white colar crime. While working at the DA office the DA and assistant DA said the State of Wisconsin could only pay 5,000.00 toward the forensic accounting expert witness. I said that my accounting was complete due to the Bank case,and I would match what the State was paying. The other 2 parties also said they would match what the State was paying. The bill came in and was much higher than what we were told the Forensic Accounting would cost. I said is this the final bill. The DA said nothing. I said this is my final payment and I will not pay another penney. The judge ruled the defendants are to pay the forensic accounting bills. Walworth Couny DA has now filed a lawsuit against me for 12,000.00 dollars. I have been abused by this county so much I cant stand it. What is the Law on Victims paying for expert witnesses? I paid 6,400.00 dollars. This is abuse! linda Goes
Linda - April 19, 2009 at 10:48 pm
I am very upset with the legal system in Walworth County Wi. I am a victim in a white colar crime. While working at the DA office the DA and assistant DA said the State of Wisconsin could only pay 5,000.00 toward the forensic accounting expert witness. I said that my accounting was complete due to the Bank case,and I would match what the State was paying. The other 2 parties also said they would match what the State was paying. The bill came in and was much higher than what we were told the Forensic Accounting would cost. I said is this the final bill. The DA said nothing. I said this is my final payment and I will not pay another penney. The judge ruled the defendants are to pay the forensic accounting bills. Walworth Couny DA has now filed a lawsuit against me for 12,000.00 dollars. I have been abused by this county so much I cant stand it. What is the Law on Victims paying for expert witnesses? I paid 6,400.00 dollars. This is abuse! linda Goes
Linda - April 19, 2009 at 10:48 pm
I am very upset with the legal system in Walworth County Wi. I am a victim in a white colar crime. While working at the DA office the DA and assistant DA said the State of Wisconsin could only pay 5,000.00 toward the forensic accounting expert witness. I said that my accounting was complete due to the Bank case,and I would match what the State was paying. The other 2 parties also said they would match what the State was paying. The bill came in and was much higher than what we were told the Forensic Accounting would cost. I said is this the final bill. The DA said nothing. I said this is my final payment and I will not pay another penney. The judge ruled the defendants are to pay the forensic accounting bills. Walworth Couny DA has now filed a lawsuit against me for 12,000.00 dollars. I have been abused by this county so much I cant stand it. What is the Law on Victims paying for expert witnesses? I paid 6,400.00 dollars. This is abuse! linda Goes
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