While waiting for my Starbucks drink this morning, I passed the time by sorting through the various newspaper headlines conveniently located next to the countertop. What drew my attention to a particular article published in The New York Times was an interesting analysis by Mr. Adam Liptak entitled, “Justices are Long on Words but Short on Guidance.” Of particular interest was an opinion on a case that I’ve been following since its inception – City of Ontario v. Quon (case involving whether personal text messages by police officers are private).
The article spoke more about a trend by the U.S. Supreme Court, under Chief Justice John Roberts, wherein the Court issues lengthy “volume” sized opinions that offer little in the way of guidance for attorneys and lower court judges to help them interpret case-law precedence. In substantiating his claim, Mr. Liptak reports that in the Quon case, Justice Anthony M. Kennedy opined that the case “touches issues of far-reaching significance,” but then goes on to explain why the Court should decide none of them (a similar ruling by Judge Jones, District Court Judge for the Western District of Washington, in Microsoft v. Johnson).
Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because ‘it might have implications for future cases that cannot be predicted.’ Justice Antonin Scalia went along with the decision, but he blasted his colleagues for ‘issuing opaque opinions.’ A month later, Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured ‘a marked lack of clarity,’ and was almost aggressively unhelpful to judges and lawyers.
The Court needed less than 4,000 words to determine, in the seminal case Brown v. Board of Education, that having segregated public schools was unconstitutional. By comparison, the Court (in January, 2010) needed 48,000 words (roughly the length of “The Great Gatsby”) to explain its holding in Citizens United v. Federal Elections Commission, that corporations and unions could contribute to candidate elections for public office.
One of the most respected judges in the federal system, Court of Appeals for the Seventh Circuit Judge, Richard A. Posner, weighed in by stating, “[a]lthough today’s Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten…[m]ost of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.”
This thought-provoking article highlights why organizations need to adopt a data governance strategy that is premised more on sound “business practices” and less on “case-law precedence.” I am not advocating that corporate legal counsel should de-emphasize the role case-law plays in advising its clientele, especially when it comes to data/cyber governance policies. Rather, the issues around and related to data privacy and security are enormous, and the stark reality is that the precedence in this area will mandate that corporate lawyers think outside the box when it comes to advising clients on matters arising from technological trends and advancements.
To read Mr. Liptak’s article in full, please click here: http://www.nytimes.com/2010/11/18/us/18rulings.html?pagewanted=2&_r=1&ref=homepage&src=me