Academic journal article Albany Law Review

An Empirical Study of the Vindicated Dissents of the New York Appellate Division, Fourth Department, from 2000 to 2010

Academic journal article Albany Law Review

An Empirical Study of the Vindicated Dissents of the New York Appellate Division, Fourth Department, from 2000 to 2010

Article excerpt

To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views of one's colleagues; to address precisely the points of law that one considers important and no others; to express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes the majority's disposition should engender--that is indeed an unparalleled pleasure. (1)


Dissenting opinions represent a personalized and useful viewpoint of legal issues. In addition to the feeling of personal satisfaction (as noted in Justice Scalia's introductory quotation), there are many benefits to dissenting opinions. First, a dissenting opinion provides an honest illustration of the different feelings of the court toward both the issue and the facts surrounding a case. (2) The dissent "shows exactly who disagrees, with what and why there is a disagreement as well as the extent and depth of that disagreement." (3) A second benefit to dissents is the beneficial competition for the majority opinion. (4) Majority opinions, when presented with a dissenting opinion, need to carefully reinforce their legal analysis by admitting the limitations of their rationale, omitting unpersuasive arguments, and removing lackadaisical language. (5) Third, a dissent is the best place to unearth a judge's true beliefs, preferences, and personal philosophy. (6) "In short, a dissenting opinion is usually the authoring Justice's personal tongue-lashing (pen-lashing?) of his colleagues. And it's one that is so ardently felt that the Justice feels compelled to go public." (7)

Finally, authoring a dissent gives a justice, or justices, the ability to influence the holdings of other courts, and may occasionally become vindicated by a higher court. (8) Dissenting opinions can serve as templates to a later court's opinion, outlining a legal analysis that may mark a more persuasive, or well-founded rationale for the outcome of a particular future case. It is this last benefit that this article concerns itself with: dissenting opinions that were ultimately found, on appeal, to present a better founded rationale for a particular case. More specifically, this article is an empirical study of the dissenting opinions of the New York State Appellate Division of the Supreme Court, Fourth Department, over the past ten years, focusing specifically on those dissenting opinions that were ultimately vindicated (9) by the Court of Appeals.

It is important to realize at the outset that the data presented within this article is merely a "niche" in the total caseload that the Fourth Department hears. This study is only concerned with cases that resulted in a divided panel (10) of the Fourth Department within the last ten years. To put this in perspective for the reader, this study specifically deals with 350 of the approximately 20,490 cases heard by the Fourth Department over the past ten years, which is less than two percent of the total cases heard by the Fourth Department since January 1, 2000. (11) Additionally, this article in no way holds itself out as a perfect empirical study. Despite thorough research efforts, it is entirely possible--and likely--that a few dissenting opinions remain at large.

It is also important to emphasize that this is an empirical study, meaning that this article is only concerned with the statistics. The statistics and data presented herein should not suggest to the reader that one justice is superior to another, nor should they suggest that certain justices feel more strongly or less objectively about certain issues than other justices. The data in this study is intended only to present an empirical point of view with respect to the voting behavior of the justices of the Fourth Department, specifically in those cases where a dissent was issued and that dissent's rationale was ultimately vindicated by the Court of Appeals. …

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