Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

I ask as a facet of the work I’m doing on when district judges write opinions (versus orders). The large-scale empirical project I’ve undertaken to answer that question is still ongoing, but my preliminary findings highlight the relative scarcity of opinions as a proportion of judicial workproduct (3% of judicial actions taken in my study, around 10% of non-ministerial/scheduling actions). Previous work on this subject has suggested that judges provide long-form explanations, complete with citations to “cases . . . statutes[s] . . . treatise[s] . . . article[s] . .. note[s] . . . [and] blawg[s]” when the issues are hard. When the issues are “easy” they write orders. When the issues are really easy, and time is crunched, they simply rule. “Just because I said it.” But I think that this story is wrong.

My hypothesis, which I hope the data will prove out, is that judges explain themselves to maximize certain ends: (1) avoiding reversal; (2) gaining reputation with certain members of the bar; (3) intellectual satisfaction (i.e., more opinions in con law cases than social security cases); (4) free time (i.e., less opinions as workload increases); (5) reputation as a function of race and gender;etc. That is, the universe of opinions (what we call doctrine) is likely to be significantly different from the universe of what judges do in contested matters, in ways that we can predict. This isn’t necessarily bad, although I am looking to see if certain classes of litigant – those represented by AMLaw 100 firms; corporate parties – are more likely to get gold-standard justice instead of “because I said it” justice.

But Kozinski offers a different view. In his view, Judges should presumptively give reasons. It isn’t a matter of weighing cognitive and other costs against rule-of-law benefits, it is a command. But can this be right? That is, when appellate courts like Judge Kozinski’s own Ninth Circuit affirm on the briefs without reasons, is that presumptively illegitimate? (If so, the Judge’s well-known support for non-precendential opinions is surprising). Is the cert. pool practice up in SCOTUS a rule-of-law problem? More generally, under what circumstances does due process require explanation?

In my view, this is a very hard problem. It simply isn’t true that current practice gives explanation in the large majority of contested matters where explanation is due. Take discovery practice. It was my experience while a litigation associate that district judges make many, many discovery related decisions by unexplained order, usually splitting the difference between what was requested in discovery and what was sought to be quashed. My study has confirmed that discovery decisions almost never make it into westlaw. But the issues in such decisions are hard, requiring courts to balance privacy interests against truth-seeking, against a very complex and mutable doctrinal context, see, e.g., the privilege-abandonment rules.

I’m also not sure that it is true that courts gain legitimacy by providing reasons. At least as I understand the procedural justice literature, voice effects arise when you get to participate in the process, regardless of whether the judge gives a reason for her decision or not. Do folks aggrieved by Kelo, Lawrence, Lopez, McClesky, etc. feel better because the Court explained itself? I doubt it. Indeed, I bet in some of those cases the explanation was part of the outrage. What due process arguably requires is simply an open mind and a willingness to be persuaded. Doctrine, on the other hand, requires explanation.

But even if due process doesn’t require district courts to give reasons, Judge Kozinski’s position feels right. (Indeed, his entire dissent is powerful.) My study seems to be finding that unreasoned disposition is the norm, even though it is normatively problematic. I’m not sure that this is a problem that can be solved by more judges, or less lawyers. Perhaps the problem is that lawyers have too many opportunities to raise potentially meritorious issues over the life of a lawsuit. Hmm. If we think that every hard problem deserves a reasoned answer, perhaps judges should increasingly (as some do already) limit the number of motions lawyers can make in one action.

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13 Responses

  1. Sasha Volokh says:

    I agree that judges should have reasons. This isn’t the same as writing an opinion all the time — note that Kozinski would have been happy with an oral explanation from Real in response to the lawyer’s question. This has nothing to do with writtenness, and also nothing to do with precedentialness — which is why non-precedential opinions in the Ninth Circuit are no problem for this view.

    It’s also no problem for this view that most decisions are unexplained — due process doesn’t necessarily require giving an explanation for everything (there’s simply too much to explain, on that view), but it may require having an explanation in case a litigant in an appropriate position decides to ask, which is what happened in the Real case.

    As for the cert practice at the Supreme Court, I actually think due process requires reasons even there — though there’s no higher authority to review this particular exercise of discretion. This is one due process value that can only be enforced on the honor system, and it is, (publicly) using the moral power of dissents from denial of cert and by having actual standards for the exercise of cert-granting discretion stated in the Supreme Court, and (privately) by operationalizing those standards in cert memos that state reasons.

  2. This sort of thing would more or less scandalize the philosophical forefathers of our present-day system. Someone may correct me if I’m wrong, but the publicity condition is more or less a stock demand in the positive strain of enlightenment writings.

    Thomas Hobbes, who was ever the sort to err on the side of the powers that be, gave room for unwritten laws only insomuch as they were universal self-evident facts which arose from the powers of reason: i.e., what we’d think of as common sense. Written laws were by far the wider category, though, and Hobbes insisted that their rulings be a) disseminated to the people with the stamp of approval of the sovereign to show their authenticity (though Hobbes seemed fairly lax about this at some points, basically saying the onus is upon the public to research the law); b) the rulings of subordinate judges must always be in line with reason; c) and their rulings must be in line with the intents of the sovereign.

    Along the same lines, he might say that any ruling crucial to a case which has no explicit reasoning, and which relies upon reasons which are neither obvious nor patent to an informed participant, has no hope of legitimacy. For there is obviously nothing reasonable about a lack of reasons; and without evidence of an interpretation of the sovereign’s intent, the subordinate judge cannot hope to indicate their judgment is consistent with the will of the sovereign.

    The consequences to the system would be interesting if the Kozinskian line were actually followed. Judges would have to be ready to be more encyclopedic.

  3. Paul Gowder says:

    Sasha’s comment obviously correct to me. The issue isn’t so much pedantically giving reasons wherever requested, but in having some justification for the decision to supply on demand. “Stop wasting the court’s time with this silly discovery dispute and split the difference,” for example, would be a perfectly reasonable justification to give on request in resolving the discovery disputes Dave cites as a counterexample to the “explain everything” position.

    In addition to the due process values noted by Sasha and the Hobbesian claim, lets not forget the point briefly noted by Kozinski about the appearance of legitimacy. The difference between a presumptively reasoned decision where the reasons aren’t explained (as in a summary affirmance) and a decision where the reasoning is challenged and not defended is that the latter creates the appearance of arbitrary decisonmaking, while the former does not. To the extent we care about a legal system that, e.g., commands the respect of the public, we should worry about that. (In a related vein — Dave, did you ever have the privilege of taking Charlie Nesson’s winter evidence @ HLS?)

  4. Kaimi says:


    Really interesting project. I’d like to discuss this with you more, but a few thoughts occur to me for a short comment.

    First, rule of law is exactly the right question to ask here. This case looks like an illustration of the classic rule-of-law versus rule-of-men problem — I can point you to a nice article that discusses that topic, published a few years ago in the Wisconsin Law Review — and should be a godo vehicle for discussion of that issue.

    Second, at least based on my own observation from a year clerking in the EDNY, publication practice varies widely by judge. Some judges publish everything; others publish nothing; many fall somewhere in between.

  5. Paul,

    The justice earns their position through certain competencies, one of which is their ability to display opinions which are consistent with law. Ability is little more than the possibility of performance, which make the suggestions of yourself and Sasha seem valid.

    But the counterargument is that the burden of proof is saddled upon the citizens inappropriately.

  6. Paul Gowder says:

    I’m not sure that the burden of proof is saddled on the citizens inappropriately. The citizen need not refute the judicial claim that they are making decisions consistent with law. They merely need demand the demonstration, at which point the responsibility to meet the challenge kicks in — at least on my intuition, and, I think, Sasha’s and Kozinski’s.

  7. Paul et al.,

    Perhaps my use of the word “proof” was unhappy. It would be more like they have the burden of inquiry.

    Upon reflection, the difference between your view and mine is quite slender, and doesn’t seem to feature many morally motivating aspects which compel one or the other, since both seem to capture (in their different ways) the publicity condition. It’s surely true that the justice has an obligation to give reasoning when asked. But the difference appears to be that I think the justice has a duty to offer their reasoning behind non-trivial and non-obvious rulings. The justice is being paid by the citizen, and not vice-versa, so it is at minimum a courtesy.

    This doesn’t weigh one way or the other, but the implication of a view like mine would be that non-undercover plainclothes police officers would have to present their badges to anyone they wanted to speak to on official business. For in a crucial Hobbesian sense, lawful reasoning is to the judge what the badge is to the cop.

    It would also seem to imply, in a very non-Hobbesian way, that any justice who fails in a duty to offer reasoning in nonobvious nontrivial rulings, does not legitimately deserve to be protected from the contempt of the citizen. For contempt is illegitimate (in the political sense) only when the sigils of legitimate authority have been presented.

    Admittedly, I suppose that your view has more benefits, and my view more costs. Your view doesn’t have to worry about things like how to operationalize “nontrivial” and “nonobvious”, while mine does; and your view saves time, while mine takes time. But at the very least, I would say, there’s an element of courtesy involved.

    In any case, it will be interesting to learn from Dave’s study how many judges engage in behavior like Real’s.

  8. Dave Hoffman says:

    I don’t want to sidetrack the interesting Benjamin/Paul discussion, but I’m curious as to why it satisfies due process simply to have a reason if you don’t say it. I would have thought that the reasons for reasons (awk.) are (1) notice for future conduct; (2) increasing legitimacy and compliance; and (3) reducing the likelihood of targeting “we’re going to get you” justice. Justifications produced only when demanded satisfy these reasons not at all.

    As for Kozinski and this particular case, I don’t really agree that he would have been satisfied with just any reason – indeed, Judge Real’s exprssed reasons ex post in his briefing didn’t satisfy the Judge. He wanted some basis in law, treatise, article, or blawg. A nod to the legal basis for his order. If he’d said “stop wasting the court’s time”, it clearly wouldn’t have been enough [contra Paul].

    Here’s the question. Is it legitimate for a court to say, as so many of them do, that “D’s motion to dismiss is denied”; or “P’s motion to compel is granted in part;” or “D’s motion to remand is granted” (the classic unappealable order). Is most of district court practice undermining the rule of law?

    As for practice in the appellate courts, are summary affirmances similarly problematic? (Sasha’s point on cert. practice is interesting, although I don’t see how reasons known only to clerks satisfy the public rule of law values that other commentators have been developing).

  9. Kaimi says:


    I think you’ve got to ask a threshold question, which is — how _much_ explanation and support needs to be given to sustain the rule of law?

    I think the answer is going to be very context dependent. For many cases, the response is going to be relatively uncontroversial. Denial of a motion for reconsideration, for instance. “I think my prior reasons are fine” is going to be enough in 99% of the cases.

    On the other hand, the more novel or controversial or close the decision, the more that a reason is going to be needed.

  10. Paul Gowder says:


    I think your three reasons for reasons are satisfied to the extent that reasons are demanded and given when they’re non-obvious or seriously contested. In order, (1) is satisfied for obvious rulings (the parties and the public are already on adequate notice), (2) is satiafied if the rulings aren’t challenged, and (3) is satisfied because a party who is targeted can always demand reasons and reveal the targeting.

    WRT Kozinski and this particular case, I think he’d have been satisfied with any generally acceptable legal reason. Here, “stop wasting the court’s time” wouldn’t be sufficient, because this wasn’t a procedural issue. In, for example, discovery issues that are committed to the court’s discretion, “stop wasting the court’s time” is not only sufficiently commonly offered that it probably does count as a legitimate legal reason, but it’s actually written into the rules in any number issues. (For example, many court rules on discovery motions require the parties to consult and try to work it out informally first for just this reason. Many other procedural issues explicitly reference judicial efficiency as the major decision standard.)

    We may have a problem with summary affirmances that we don’t have with, say, seat-of-the-pants discovery rulings. There isn’t such a direct opportunity to demand an explanation from an appellate panel who you don’t even appear in person before, especially if they flat-reject the motion for reconsideration. In practice, I’ve seen several summary appellate dispositions that just seemed utterly unprincipled and unreasoned, with no opportunity to appear and make the judges explain themselves. This would, I think, violate the KOZINSKI-VOLOKH-gowder intuition.

    (I have nothing to add to Ben’s comment.)

  11. hermes shamu says:

    n.b. — Judge Real is currently presiding over the Bar / Bri class action.

  12. Paul Gowder says:

    With any luck, he was a BarBri customer.

    Real: “Sorry, BarBri, you lose. Judgment for the plaintiffs for 20 billion dollars.”

    BarBri Counsel: “What? This is the discovery conference! Why? How?”

    Real: “Just because I said so, counsel.”

  13. Stephen DiSalvo says:


    Judges should provide to the litigants their reasoning on serious or dispositve issues. The litigant who is subjected to binding dispute resolution must walk down the courthouse steps knowing the reasons so that he can go on from there with his lot improved, otherwise he goes out no better than when he came in.

    I’m a pro-se with a rather nasty, and interesting, case in NY. I came to this site because I am researching this issue in contemplation of an Article 78 proceeding against a judge who only denies without explanation, particularly when the issue is quite serious. I would like to force the judge to put his thoughts on paper which should be nothing more than a ministerial act. Anyone have any caselaw?