|
| |
Affirmance Without Opinion
 |
"My own guiding principle is
that virtually every appellate decision requires some statement of reasons.
The discipline of writing even a few sentences or paragraphs explaining the
basis for the judgment insures a level of thought and scrutiny by the court
that a bare signal of affirmance, dismissal, or reversal does not."
Patricia Wald, The Problem with the Courts: Black-Robed Bureaucracy or
Collegiality Under Challenge, 42 MD. L. REV. 766, 782
(1983). Wald was Chief Justice of the D. C. Circuit Court of Appeals
from 1986-1991, serving as Justice on that Court from 1979-1986. She
retired from the bench in 1999 to serve as judge on the International
Criminal Tribunal for the former Yugoslavia.
|
| "It is our view that our court owes the public a candid explanation of
our respective positions" Justice Edith Jones,
dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002).
Joined by Justices Jolly, Smith, DeMoss, and Clement. |
| "[T]here is no better precaution against
judicial mistakes than setting out accurately and adequately the material
facts as well as the points to be decided." Charles
Evans Hughes, The Supreme Court of the United States, 1928, p.
64. Sourced from Bryan A. Garner, Style of Opinions, The
Oxford Companion to the Supreme Court of the United States, ed. by
Kermit L. Hall (1992), p. 608. Hughes was Supreme Court Chief Justice
from 1930 to 1941 and Supreme Court Justice from 1910 to 1916. |
| "The third duty of the court is to write an
opinion which is intelligible, which explains the result, and which we hope,
is acceptable to the losing side. I think about the losing litigants a
lot. Those are the people who need to understand that they have been
heard - that a reasoning creature of some kind has evaluated their argument
and comes to some sort of conclusion about it. They won't like
it; they won't enjoy losing, but I hope that they will have a sense
that they have been heard." Justice Richard S. Arnold,
The Future of the Federal Courts, 60 Mo. L. Rev. 533, 536
(1995). Richard Arnold is currently a Senior Circuit Judge on the
Eighth Circuit, serving on that Court since 1980. |
| Discussing the decision of the Third Circuit to drastically reduce the
number of cases resolved without comment (from 52.9% in 1997 to 12.6% in
1999, later to 2.8% in 2002), "We realized
that this [the large number of cases without comment] was a mistake, that we
owed the bar more." Chief Judge Edward Becker.
Quoted by William C. Smith in the ABA Journal, Big Objections to Brief
Decisions, August 1999, p. 34. Smith's article says on p. 36, "According
to Judge Becker, the court has so far managed to keep current on its work,
defying fears that decreasing judgment orders would necessarily increase the
circuit's backlog." Judge Becker is quoted as
saying about the policy of providing rationale, "It
was the right thing to do, so we just did it." |
|
"Federal
appellate courts' twin duties are to decide appeals and to articulate the
law. Writing reasoned opinions, especially in important cases, is critical
to the responsible performance of these duties." Justice
Edith Jones, dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002).
Joined by Justices Jolly, Smith, DeMoss, and Clement. |
| "The judges [in former times]
were guided by few written laws, but developed a meaningful set of rules by
the process of case-by-case adjudication. Their explanations of why they
decided cases as they did provided guideposts for future decisions and an
assurance to litigants that like cases were being decided in a similar way.
Many of us believe that those statements of reasons provided a better
guarantee of justice than could possibly have been described in a code
written in sufficient detail to be fit for Napoleon." Connecticut
Board of Pardons v. Dumschat, 452 U.S. 458, 472 (1981) (Justice John
Paul Stevens, dissenting) Justice Stevens, began his tenure as a
Supreme Court Justice in 1975 and remains on the bench, today. |
|
"Every judge should be
required to give his reasons for a decision, and those reasons should be
sufficient to explain the result to the litigants but also to enable other
litigants to comprehend its precedential value and limits to its
authority." Alvin Rubin, Bureaucratization of the
Federal Courts: The Tension Between Justice and Efficiency, 55 NOTRE
DAME LAW. 648, 655 (1980) Alvin B. Rubin started his tenure as Circuit
Judge of the Fifth Circuit in 1977. |
|
"When reasons are announced and can be weighed,
the public can have assurance that the correcting process is working. Announcing
reasons can also provide public understanding of how the numerous decisions
of the system are integrated. In a busy court, the reasons are an
essential demonstration that the court did in fact fix its mind on the case at
hand. An unreasoned decision has very little claim to acceptance by
the defeated party, and is difficult or impossible to accept as an act
reflecting systematic application of legal principles. Moreover, the
necessity of stating reasons not infrequently changes the results by forcing the
judges to come to grips with nettlesome facts or issues which their normal
instincts would otherwise cause them to avoid." Paul D.
Carrington, Daniel J. Meador and Maurice Rosenburg, Justice on Appeal 10
(West 1976). Emphasis added when quoted by Fifth Circuit dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002) |
|
"[T]he real accountability of
the courts of appeals is to the bench, the bar, the scholars, and the
public. Unpublished opinions, especially ones that cannot be cited, will
generally not receive critical commentary from those groups for the obvious
reason that they will go unnoticed." William Reynolds
& William Richman, The Non-Precedential Precedent -- Limited
Publication and No-Citation Rules in the United States Courts of Appeals,
78 Columbia Law Review, 1167, 1203 (1978) |
|
"The
benefits of issuing reasoned opinions - fostering public understanding of the
law, accountability and transparancy, and imposing self-discipline on the
judges - are not limited to majority opinions."
Justice Edith Jones, dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002).
Joined by Justices Jolly, Smith, DeMoss, and Clement. |
|
"[A] remarkably effective
device for detecting fissures in accuracy and logic is the reduction to
writing of the results of one's thought processes . . . . Somehow, a
decision mulled over in one's head or talked about in conference looks
different when dressed up in written words and sent out into the sunlight .
. . . [W]e may be in the very middle of an opinion, struggling to reflect
the reasoning all judges have agreed on, only to realize that it simply
"won't write." The act of writing tells us what was wrong with the act of
thinking." Justice Frank M. Coffin, The Ways of a
Judge: Reflections From the Federal Appellate Bench, Houghton Mifflin, 1980,
p. 57. (Coffin is currently Senior Circuit Judge on the First Circuit,
and Chief Judge on that Circuit from 1972-1983.) |
|
"[T]he basic purpose for
stating reasons within an opinion or order must never be forgotten -- that
the decision must be able to withstand the scrutiny of analysis, against the
record evidence, as to soundness under the Constitution and the statutory
and decisional law we must follow, as to its consistency with our
precedents. Our orders and judgments, like our published opinions, should
never be shielded from searching examination." In
re Rules of the United States Court of Appeals for the Tenth Circuit,
Adopted Nov. 18, 1986, 955 F.2d 36, 38 (10th Cir. 1992) (Chief Justice
William J. Holloway, Jr., dissenting) Justice Holloway is currently a
Senior Circuit Judge on the Tenth Circuit. |
|
"In this
court ... , silence is not our custom." Justice Edith
Jones, dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002).
Joined by Justices Jolly, Smith, DeMoss, and Clement. |
|
"This court
is an institution defined by the reasoned exercise of power. It
[silence] signals disregard for the public - the federal prosecutors
and defense attorneys - who remain unenlightened over how to avert, or
precipitate, serious discussion of the limits now imposed by the commerce clause
on federalization of local crime. Silence exhibits a unique unconcern for
appellant McFarland ... [who was] entitled to know how the power of the federal
government consitutionally bore down on [him]." Justice
Edith Jones, dissent in United
States of America v. Mcfarland, 00-10569 (5th Cir. 2002).
Joined by Justices Jolly, Smith, DeMoss, and Clement. |
|
"[W]e believe
that there should be an option to issue [opinions] . This is especially so
because the views of this court of intermediate appeal might be useful to the
Supreme Court in the event of an application for certiorari."
Baker
v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en banc) |
| "I
personally favor giving reasons for what we do, because we have an
accountability issue. I am troubled by the fact that we are using
summary dispositions." Justice Carolyn D. King,
reported by Nathan Koppel, "Counsel Claims Significant 5th Circuit
Cases Get Short Shrift", Texas Lawyer April 27, 1998.
Carolyn King is currently Chief Justice of the Fifth Circuit, serving on
that Court since 1979. |
|
"[T]he
imposition of a sanction often is a serious deprivation of property and
liberty. For litigant and counsel alike, it might be a loss of money
or of reputation. Legislatures should participate in deciding the
general rules that govern the kind of sanctions imposed and the methods by
which they are imposed upon litigants and counsel; and until legislatures
act, courts should employ due process principles in developing
sanctions. Due process principles are principles of fundamental
fairness; they are principles of long acceptance and wide
acceptability" Nathan H. Cogan, The Inherent Power and Due Process Model in Conflict:
Sanctions in the Fifth Circuit, 42 SW. L.J., 1020 (1989). Written
while Cogan was professor at Southern Methodist University School of
Law. Later, Cogan became Dean of Quinnipiac College of Law. |
|
"
I believe that deciding cases by judgment orders is an unacceptable practice that
should not be considered among the alternatives available to the courts of
appeals. More than a quarter of a century ago, the Hruska Commission
endorsed the “basic proposition” that in every appellate case the court
should provide “some record, however brief, and whatever the form, of the
reasoning which impelled the decision.” Although time has outdistanced some of the Hruska Commission’s recommendations, this
one remains as cogent and compelling as it was in 1975. The reason is simple.
We
pride ourselves in having a government of laws, not of men. When an appellate
court decides a case, the court’s explanation – a “record [of the
court’s] reasoning” – provides tangible evidence that the decision is the
product of the law, not simply the preferences of the judges who happened to sit
on the panel." . . . "The Federal Rules of Appellate Procedure
should be amended, as the Hruska Commission recommended, to require that in
every appellate case the court should provide “some record, however brief,
and whatever the form, of the reasoning which impelled the decision.” Arthur
D. Hellman, Witness testimony to House Judicary Subcommittee on Courts, the
Internet, and Intellectual Property in Oversight Hearings on Unpublished
Judicial Opinions, June 27, 2002. Hellman is a Professor of Law
and Distinguished Faculty Scholar at the University of Pittsburgh Law
School. Professor Hellman also participated in the Hruska Commission.
|
| "LOCAL
RULE 47.6 This rule permits a case to be decided by a simple
"Affirmed." The statistics regarding the utilization of Local
Rule 47.6 are deceiving however. Most judges think that it
is more politic to prepare a per curiam opinion of one-half to one and one-half
pages saying in effect no more than "finding no error, the judgment is
Affirmed." The difference is one of form instead of substance."
(emphasis added) and "What is
more likely is that the Fifth Circuit with 10,000 filings will not operate
as it does today. Instead we will witness an incremental corruption
of case management techniques. Discretionary review will take
the form of one word or one paragraph dispositions on the
summary calendar. The conference calendar will dispose of more cases with
less conference. It is a small step for the jurisdictional defect calendar
to be expanded to encompass cases that have merit defects (as determined by
central staff attorneys); and all the while, we will be holding ourselves
out as providing plenary review for all appeals. With good intentions
driven by the need to dispose of our docket, we will compromise the
integrity of the court by providing a level of review that is in fact not
plenary. It matters not that we may not realize it or that we may
have no other choice, the result will be the same. The difference between
what we say we are doing and what we will actually be doing will not go
unnoticed by pundits, the academy, and the bar. We will erode
confidence of the public in the federal courts. Discretionary review
in the guise of case management techniques will not play in Peoria or New
Orleans or anywhere else."
(emphasis added) Robert M. Parker, "Speech
before the Commission on Structural Alternatives for the Federal Courts of
Appeals", March 25, 1998. Robert Parker served as
Fifth Circuit Justice from 1994-2002 and District Judge of the Eastern
District of Texas from 1979-1994. |
| "The integrity of the process requires that
courts state reasons for their decisions. Conclusions easily reached
without setting down the reasons sometimes undergo revision when the decider
sets out to justify the decision. Furthermore, litigants and the
public are reassured when they can see that the determination emerged at the
end of a reasoning process that is explicitly stated, rather than as an
imperious ukase
without a nod to law or a need to justify." Paul D.
Carrington, Daniel J. Meador and Maurice Rosenburg, Justice on Appeal 31
(West 1976). Professor Carrington currently teaches at Duke Law
School, where he was Dean from 1978 to 1988. Daniel Meador is
Professor Emeritus at University of Virginia Law School and former Dean of
University of Alabama Law School. Maurice Rosenburg, now deceased, was
Professor at Columbia University School of Law. |
| "The pressures of heavy workloads have led
some appellate courts to overreact by curtailing too sharply the explanation
that accompanies the decision. Some have adopted the practice of
issuing curt or perfunctory rulings that say nothing more than
"Judgment affirmed." These and other cryptic styles of
judgment orders tend to give an impression of an imperious judiciary that
acts without the need to justify its judgments. They should not be
used." Paul D.
Carrington, Daniel J. Meador and Maurice Rosenburg, Justice on Appeal 32
(West 1976). |
| "The federal appellate system has had and
ever increasing workload to the point of disfunctionality. There are a
number of proposed solutions. One is to create new courts, which has
its own set of problems. Another is to keep adding judges to circuits,
but having more than 12 judges on a circuit is hard to manage. Over
the years, at the Fifth Circuit, we developed 47.6, which is a form of discretionary
review. It is a type of certiorari arrangement. I
don't think it is utilized to the point needed."
(emphasis added) Robert M. Parker, phone conversation, February 14,
2003 |
| "The solidity of a state is very largely
bound up with its judicial decisions." Marcus Tullius
Cicero, (106-43 B.C.) Cicero, a Roman attorney, was widely
admired and read by the Founding Fathers. |
| "There is not, in my opinion, in the whole
compass of human affairs, so noble a spectacle as that which is displayed in
the progress of jurisprudence. Where we may contemplate the cautious
and unwearied exertions of wise men through a long course of ages,
withdrawing every case as it arises from the dangerous power of discretion
and subjecting it to inflexible rule, extending the dominion of justice and
reason, and gradually contacting within the narrowest possible limits, the
domain of brutal force and arbitrary will." Sir James
Macintosh, Scottish Enlightenment philosopher. |
| "Although there are many forms of high treason,
none is of them so serious as that which is executed against the body of
justice itself. Tyranny is, therefore, not only a public crime, but if
this can happen, it is more than public. For if all prosecutors may be
allowed in the case of high treason, how much more are they allowed when
there is oppression of laws which themselves command emperors?"
John of Salisbury (1115 - 1180), English bishop and author of
Policraticus, the most influential work of political philosophy in the
12th century. |
| "In a government which is emphatically stiled a
government of laws, the least possible range ought to be left for the
discretion of the judge. Whatever tends to render the laws certain, equally
tends to limit that discretion; and perhaps nothing conduces more to that
object than the publication of reports. Every case decided is a check upon
the judge. He can not decide a similar case differently, without strong
reasons, which, for his own justification, he will wish to make public. The
avenues to corruption are thus obstructed, and the sources of litigation
closed." U.S. Circuit Court of D.C. Judge William Cranch,
1 Cranch iii (1804). This is the statement of Judge Cranch of
why he took it upon himself, while a sitting Circuit Judge, to report the
United States Supreme Court cases, even though he had no appointment to do
so. He did it because no one else was, and he saw the pressing need. |
Last saved on:
04/02/2006
|
