Paul Horwitz has written a characteristically thoughtful post over at PrawfsBlawg on the issue that I raised the other day about whether we should still permit per curiam opinions. I have a couple of additional observations on my end:
1. Without signed opinions, outsiders would find it hard to assess the quality of individual appellate judges. This matters when you want to think about possible candidates for promotion. Instead, you’d have to rely on insider information that would be less reliable (“I heard from so-and-so’s law clerk that Judge X wrote that opinion.”).
2. There is an exception to Point #1. When judges sit on panels of three, the dissenter would always be named. Thus, what we’d know about appellate judges would come largely from their dissents. Or one could imagine more separate concurring opinions if that was the only way to get one’s name out for public consumption. I’m not sure that this be a great system for assessing judges.
3. Why do people care that a given opinion was written by Henry J. Friendly? I think the answer is that they think that opinion will just be better. While all panel opinions are formally equal, that does not mean that they are equally useful. Knowing the judge’s reputation (good or bad) reduces search costs for attorneys and scholars, and that matters in the real world.
One last thought–there is a strong argument in favor of anonymous publication as a way of forcing people to focus on the arguments and not on the personalities. (Hello, Publius.) Of course, that argument could apply just as well to law review articles as it does to opinions.