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65 Wash. L. Rev. 133 (1990)
Remarks on Writing Separately

handle is hein.journals/washlr65 and id is 147 raw text is: Copynght @ 1990 by Washington Law Review Association REMARKS ON WRITING SEPARATELY Ruth Bader Ginsburg* Abstract: Judge Ginsburg compares the styles of appellate opinion writing in United States courts and in those of Great Britain and the civil law countries. She describes as a middle way the United States practice of opinions for the court, sometimes accompa- rmed by separate concurrences and dissents. This practice, she observes, contrasts with the British tradition of seriatim opinions by each member of the bench, and with the single, anonymous judgment characteristic of civil law systems. While noting that the Anglo- United States practice of writing separately has gained adherents in the civil law world, she concludes that judges in the United States might profitably consider the styles of jurists abroad and exercise greater restraint before writing separately. Last summer I had the good fortune to be part of a small delegation to Pans, led by Supreme Court Justices Sandra Day O'Connor and Antonm Scalia. We assembled to exchange views with representatives of the Conseil d'Etat. The Conseil d'Etat is a marvelous, multi-func- tion institution established in Napoleon's time;' one of its main sec- tions serves as the Supreme Court of France for admimstrative law cases.2 Early in our second session, Justice O'Connor described the doctrine current in the Umted States concerning the respect or defer- ence courts owe to decisions or rules made by expert admimstrative agencies or officials. Courts are bound to accept an admimstrative agency's construction of the statute the agency is charged to enforce, Justice O'Connor reported, so long as the agency's reading is a plausi- ble one, even if not the only plausible reading or, in the judge's view, the more or most plausible reading.' How can that be, a French colleague asked. How can the law have more than one plausible meaning? Or, more accurately, how can a court judgment openly so acknowledge? The law is the law There can be but one officially correct reading. Shouldn't judges, at least in their official pronouncements, make it appear so to the public? Isn't it the court's responsibility to identify by judgment the (one and only) correct interpretation? Both sides of the exchange immediately recognized that we had broached one of the fundamental differences in our systems and the * U.S. Circuit Judge, U.S. Court of Appeals, D.C. Circuit. The Author acknowledges with appreciation the assistance of her 1988-89 law clerk, Jess Velona. This Article is the manuscript of the Jurisprudential Lecture delivered on May 11, 1989 at the University at Washington School of Law. 1. See L. BROWN & J. GARNER, FRENCH ADMINISTRATIVE LAW 18-19, 30-40 (1967). 2. See id. at 19-21, 34-35. 3. See Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-45 (1984).

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