• July 5, 2017

All litigators know that judges often write their opinions as if they are not issuing from the judges but from “the court.” This makes sense because we believe our system to be guided by laws, not by people. Thus, it might seem inconsistent and inappropriate for a judge to write something like: “I don’t believe Defendant. I think he is a liar. Accordingly, I grant judgment to Plaintiff.” Rather, judges write things like this: “the court finds [Defendant’s] testimony to be unbelievable in its entirety,” maintaining the illusion that decisions in legal matters are not personal decisions but are impersonal juridical pronouncements.

On the other hand, we all know that our court system is run by people and there is a difference between “the court” and “the judge.” Judges exercise judgment. Courts do not.

We get a glimpse of the distinction when we note the difference between the administrative work of courts versus the decision-making work of judges.

Court personnel do not decide cases. In fact, an important sense, they don’t decide anything. They simply and blindly follow directions. They have no discretion.

Scene from 1939 Wizard of Oz

For example, if a judge erroneously instructs the clerk of court to do something, the clerk of court will simply do it.

Linked here is an order from Chief Judge John R. Tunheim instructing that “judgment be entered” upon the denial of a motion to dismiss.

Linked here is the clerk of court’s corresponding entry of judgment.

How can “judgment” be entered as a result of a denial of a motion to dismiss? It seems to us that it cannot be. But the clerk of court simply and mechanically performs the clerk’s duty on direction from the judge. If we are right, this error will likely be corrected by “the court” eventually, by which we mean Judge Tunheim.

[Any reader think we’re missing something here? Could this be a legitimate “judgment”???]


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