Academic journal article Albany Law Review

Decision-Making at the Second Circuit: Judges Barrington D. Parker, Jr. and Robert D. Sack

Academic journal article Albany Law Review

Decision-Making at the Second Circuit: Judges Barrington D. Parker, Jr. and Robert D. Sack

Article excerpt


This article seeks to empirically examine the voting patterns of two judges, Judge Barrington D. Parker, Jr. and Judge Robert D. Sack of the United States Court of Appeals for the Second Circuit. These judges were selected for inclusion in this issue of New York Appeals because their opinions evidenced a clear pattern of protecting a defendant or petitioner against the power of the state. Examining judicial decision-making helps to illuminate the priorities of judges that underlie their decisions. Particularly with regard to appeals, there is often a disagreement about the outcome and there are frequently strong arguments and case law in support of both positions. The way a judge votes can thus be analyzed over time to reveal patterns.

First, this article will examine the background of the judges. (1) Second, the dissenting opinions authored by the judges over the past five years will be examined in detail. (2) Next, this article will examine the voting patterns in the majority opinions the judges authored. (3) Finally, this paper will conclude with a discussion of the themes and patterns which have emerged from the study. (4)


A. Judge Parker Judge Parker was born and raised in Washington, D.C. (5) His father, Barrington D. Parker, Sr., was a federal district court judge for the District of Columbia from 1969 to 1993. (6) Judge Parker attended Yale for both undergraduate and law school. (7) He received his Bachelor of Arts degree in 1965 and his Bachelor of Laws (8) ("LL.B.") in 1969. (9)

After law school, Judge Parker began his legal career clerking for Judge Aubrey E. Robinson, Jr. of the District Court for the District of Columbia. (10) Following his clerkship, Judge Parker worked in private practice for approximately twenty-three years in New York City with Sullivan & Cromwell, Parker Auspitz Neesemann & Delehanty, P.C., and Morrison & Foerster. (11) Judge Parker's practice focused on general commercial litigation. (12)

In 1994, President Clinton appointed Judge Parker to the District Court for the Southern District of New York. (13) He served there until 2001 when President Bush elevated Judge Parker to the Second Circuit Court of Appeals. (14) Judge Parker took senior status in 2009. (15)

B. Judge Sack

Judge Sack's legal career followed much the same path as Judge Parker's. He graduated from the University of Rochester in 1960 and Columbia Law School in 1963. (16) Following law school, Judge Sack clerked for Judge Arthur S. Lane at the District Court for the District of New Jersey. (17)

Judge Sack spent approximately thirty-three years in private practice in New York City as an associate and partner with Patterson, Belknap, Webb & Tyler and a partner with Gibson, Dunn & Crutcher. (18) Judge Sack's practice focused on national and international press law. (19) Judge Sack also "served as a Senior Associate Special Counsel to the United States House of Representatives Impeachment Inquiry Staff' in 1974. (20)

Judge Sack has authored and co-authored a number of texts on press law including Sack on Defamation: Libel, Slander, and Related Problems, (21) Advertising and Commercial Speech: A First Amendment Guide, (22) and Protection of Opinion Under the First Amendment: Reflections on Alfred Hill: "Defamation and Privacy Under the First Amendment." (23)

Judge Sack was appointed to the Second Circuit by President Clinton in 1998. (24) He was "awarded the Federal Bar Council's Learned Hand Medal for excellence in federal jurisprudence" on May 1, 2008. (25) He took senior status on August 6, 2009. (26)


A central focus of this paper is Judge Parker's and Judge Sack's dissents. A dissent is a very illuminating piece of writing in that it is a public proclamation that the judge disagrees with the majority of the courts On the Second Circuit, unless it is an en banc dissent, a written dissent is a lone opinion which shows that the judge disagreed with the other members of the panel. …

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