Academic journal article Albany Law Review

Institutional Conservatism and Its Impact on Appellate Decision-Making: An Empirical Study of the United States Court of Appeals for the Second Circuit

Academic journal article Albany Law Review

Institutional Conservatism and Its Impact on Appellate Decision-Making: An Empirical Study of the United States Court of Appeals for the Second Circuit

Article excerpt

When there's a dissent, I do not have to wonder. I may still think the majority is right, but I understand, in a way I often do not when the opinion is unanimous, what the majority really decided, and what it rejected--what it would have decided had it gone the other way. (1)

I. INTRODUCTION

While dissenting opinions are often overlooked, in many instances dissenting opinions represent crucial viewpoints on a wide array of legal issues. Dissenting opinions shed light on competing considerations which a court must consider in reaching a well-reasoned result. (2) Dissents not only raise alternate viewpoints, but allow those reading a court decision to truly understand "what the majority really decided." (3) Further, dissents provide an opportunity for the reader of a decision to appreciate what the majority rejected, and what a court would have decided if the case had an alternate outcome. (4)

The dissenting opinion also serves a safeguard in the judicial decision-making process. (5) Proponents argue that the dissenting opinion "keep[s] the majority accountable for the rationale and consequences of its decision," (6) and "forc[es] the prevailing party to deal with the most difficult questions offered by its opponent." (7) On the other hand, however, dissenting opinions may undermine the judicial decision-making process--dissenting opinions "can do [real] harm." (8) An author of a dissenting opinion can damage the law, undermining the jurisprudence set forth in the majority opinion. (9) However, despite arguments raised by critics, dissenting opinions will always play a critical role in the judicial system, refining the breadth and scope of majority opinions. (10)

An empirical study of a court, through an analysis of majority and dissenting opinions, and the judges by whom they were rendered, can be especially revealing when attempting to understand the jurisprudence developed by a particular court over time. (11) Judges, like all of us, have within them "a stream of tendency ... which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals." (12)

The following study examines dissenting opinions as they may be affected by notions of institutional conservatism, authored by judges sitting on the United States Court of Appeals for the Second Circuit during a period beginning August 1, 2006 and ending October 1, 2011. This article seeks to impart a practical and useful perspective to practitioners and academicians, which may prove helpful to those seeking to understand the motivations underlying dissenting opinions at the Second Circuit.

Part II of this article will present an overview of institutional conservatism, and its interface with the decision-making practices of judges sitting on the Second Circuit. Parts III and IV will specifically analyze the dissents of Chief Judge Dennis Jacobs and Judge Richard C. Wesley, respectively. Both Parts III and IV will also provide a brief biography of each judge, and the impact which their backgrounds may have on their dissents. Finally, Part V concludes by offering a summary of institutional conservatism at the Second Circuit and makes predictions regarding future decision-making trends at the Second Circuit.

It should be noted that this study does not purport to be one hundred percent accurate in either its data or analysis thereof. This study does, however, purport to provide a useful analysis of institutional conservatism, as it may exist at the Second Circuit. This article will also identify trends, as they may exist, in the decision-making and authoring of dissenting opinions by Chief Judge Jacobs and Judge Wesley.

II. INSTITUTIONAL CONSERVATISM AT THE SECOND CIRCUIT

The examination of Second Circuit decisions illuminates the priorities of judges which underlie their decisions, and allows for readily identifiable voting patterns on the court to be ascertained. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.