Academic journal article Albany Law Review

An Empirical Study of Dissent at the Supreme Court, Appellate Division, Third Department

Academic journal article Albany Law Review

An Empirical Study of Dissent at the Supreme Court, Appellate Division, Third Department

Article excerpt


An empirical study of a court can reveal a great deal. Courts must decide the cases before them and, in doing so, the judges who comprise those courts cannot possibly avoid weighing several, often competing, considerations in order to reach a result. (1) In other words, judges have no choice but to make choices. Through analysis of the choices made over time, as recorded in written decisions, an observer can identify a "stream of tendency" flowing from both a court and its individual judges. (2) As Justice Cardozo recognized nearly a century ago, "the considerations and motives determining the choice, even if obscure, do not utterly resist analysis." (3)

The study of a court's divided opinions can be especially revealing. (4) For example, studying the divided opinions of an appellate court can tell an observer a great deal about not only the tendencies of the court itself, but also those of its individual justices. Because the decision to formally dissent means entering into public disagreement with their colleagues, and due to the fact that dissent can "weaken" the authority of a decision, it is logical to assume that justices will only dissent if they feel particularly strongly about the issue at hand. (5) Thus, a justice's pattern of dissent--his or her "stream of tendency"--reveals not only his or her tendency to vote a certain way in certain cases, but also what legal issues matter most in their mind.

Additionally, a comparative analysis of the subsequent history of intermediate appellate courts' divided cases that reach a higher court can prove equally useful. By looking at how the higher court decided the exact same issues addressed below, and comparing the high court's resolution of those issues to those reached by the court below, an observer can gain insight concerning the tendencies of both courts involved.

Finally, an awareness of the vindication rates of the individual justices at an intermediate appellate court can also be of assistance to practitioners. Knowledge of those rates can allow attorneys whose clients suffer a loss at an intermediate appellate court to feel more (or potentially less) confident about the chances of a subsequent appeal if they have a certain justice, or group of justices, choosing to take their side in dissent.

With the hope of offering precisely the type of insight summarized above, this study takes an empirical look at the divided opinions of the New York State Supreme Court, Appellate Division, Third Department over the last ten years. Focusing on comparative analysis, this article will highlight identifiable differences between the institutional tendencies of the Third Department as compared to those of the Court of Appeals in similar cases. With respect to the specific tendencies of the individual justices of the Third Department, this study will provide raw data but will, for the most part, leave speculation about varying ideologies to the reader and to future studies.

Part I presents the "raw numbers," summarizing the data compiled from a study of the Third Department over the last ten years. It will offer some general observations concerning what the numbers reveal about the Third Department as a whole, and will also set forth a year-by-year summary of dissent at the Third Department for the years 2000 through 2010.

Part II will examine the subsequent handling of some illustrative divided Third Department opinions on review by the Court of Appeals. In doing so, it will offer some analytical insight into the Third Department's institutional tendencies in both criminal and civil cases. It will also compare and contrast the tendencies of these two courts with respect to the types of cases analyzed, drawing some conclusions about each court in the process.

Part III will examine the individual dissent and "vindication rates" (6) of each justice of the Third Department, and will call attention to some general patterns. …

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