Justice Ketanji Brown Jackson issued her first opinion for the Court today, in the case of Delaware v. Pennsylvania. Those of you who closely follow the law of escheatment will be excited to learn that the Court was unanimous in holding that the abandoned proceeds should escheat to the state in which the financial products were purchased.
Before President Biden nominated Jackson to the Supreme Court a year ago, legal-writing guru Ross Guberman unfavorably compared Jackson’s writing to Leondra Kruger’s. I also highlighted some of Jackson’s writing tics.
Undaunted, Jackson again uses “Undaunted” to try to inject verve into her prose:
Undaunted, Delaware attempts to make the differences it identifies seem more material by proffering an alternative vision of the FDA.
Unless Delaware is capable of time travel, I don’t understand how, in briefing and arguing the case, it is supposed to have been daunted by Jackson’s rejection months later of one of its arguments.
In the instant case, Jackson uses the gratuitous term instant twice (much less often than she sometimes did as a lower-court judge). In both instances, as in seemingly every other instance that doesn’t involve instant coffee, “the instant” could have been simply “this”: “the instant dispute,” “the instant situation.”
Fortunately, the issue in the case was evidently not so easy as to be clear beyond cavil.
On a quick skim, the opinion also strikes me as conspicuously verbose in places. I’d bet that Justice Kagan would have written it in eight to twelve pages, rather than the twenty-three that Jackson takes.
Misspellings happen, of course, but I’m surprised to see that this one made it all the way through the process, not only past Jackson and her chambers, but past all eight other justices and their law clerks (at least one of whom in each chambers should have read the opinion with care):
By contrast, escheatment to the State of incorporation of the debtor (our secondary rule) “would too greatly exhalt a minor factor”—i.e., where the debtor chose to incorporate—when the underlying “obligations [were] incurred all over the country.”
(The official United States Reports version of the quoted opinion, Texas v. New Jersey (1965), spells exalt correctly, as do the various online versions I’ve run across. Addendum (3/2): A reader calls to my attention that the Supreme Court Reporter version of Texas v. New Jersey has the mistaken exhalt. Perhaps that means that the error occurred in the opinion that the Court first issued, that the Court corrected its error in time for the United States Reports, but that West, the publisher of the Supreme Court Reporter, didn’t catch the correction. If so, Justice Hugo Black and his chambers, as well as the seven other justices who joined his opinion and their law clerks, deserve the initial blame. In any event, the Court should be quoting the United States Reports version, and if it instead wrongly drew from the Supreme Court Reporter, it should have noticed the misspelling and added [sic] after it.)