Solum on the Need for Opinions

opinion.jpgLarry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are “reasonable” and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond–offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides “legitimacy” for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of “why and when reasons” is driven by biases built into our legal-DNA by the law school experience. I’ll ramble a bit more on this problem below the jump.

It is not novel to point out that law school overemphasizes the role of judicial opinions as a percentage of what constitutes “law”. The first-year common law method approach is at the root of this bias, and no doubt leads to the heuristic that law = reasoning = legitimacy. But many legal rules are simple commands (statutes; police instructions) unadorned by justifications. Indeed, asking a police officer for the reason behind an order is likely to engender suspicion, at the least. Even as a description of the normative legitimacy of judicial product, the focus on reasons seems to me to be an artifact of appellate thinking. Appeals courts are all about reasons, possibly because they lack the intimate acquaintance with the instruments of force (jailers, marshals) that accompany district court life.

My research focuses on district courts in part because as a clerk for a district judge, I realized that “we” were creating a great deal of law without giving any explanation, let alone full-fledged, blue-booked, opinions.

It bears emphasizing that as a matter of precedent, all district court dispositions are equal. A 75-page opinion taken up into the federal supplement formally binds as little as a one line denial of a motion to dismiss. At the same time, within district court jurisdictions, it is my sense that opinions acquire a degree of precedent-like force. Judges don’t like to disagree with their colleagues on the bench (and from the lunchroom). But they will be more willing to disagree with a mere order. Thus, judges who write opinions may be seeking to advance their policy goals in a way unappreciated by folks who assume that all district courts do is apply higher court directions. Regardless, the decision to write an opinion doesn’t make a disposition formally more important. Instead, the difference may bear on: (1) the procedural justice spectrum that Larry describes; and (2) the degree to which the signal something about the law to lawyers.

Lawyers are interested in when arguments made in briefs work. Within certain communities able to share information about orders (firm-wide communities; networks of plaintiffs or defense counsel working on products liability cases), even unreasoned dispositions create effects for parties outside of the litigation context: they start to look doctrine-like, as they enable lawyers to predict the outcome of legal problems with more certainty.

My docket project (code name: docketology 🙂 has led me to consider what will happen when dockets become easily and cheaply searchable. I wonder if lawyers in the future will routinely cite to orders on analogous briefs as a way to persuade judges of the rightness of their cause. If orders are then cited in opinions, will we see a breakdown of the line between order and opinion, such that all judicial workproduct is fair game? That is, there is a huge universe of unexplained decisions out there currently, which hasn’t mattered because such dispositions were only seen by the parties and only intended to govern them. Parties that objected to the lack of reasons presumably got them most of the time, through mechanisms like motions for reconsideration, or mandamus. Thus, it was safe to exclude the set of unreasoned disposition from the universe of what we think of as “doctrine,” which I think to date has included even nonprecedential district court opinions. (Take a look at a first-year common law casebook and count the many, many district court opinions adopted as part of the fabric of doctrine.) But in a world of digitalized law, that distinction breaks down.

An interesting consequence would be to deepen our understanding of opinions themselves. Recent work (here) on the citation of opinions would be enriched were we to know whether the citation of “important” opinions in other opinions was the same as their citation in orders. Perhaps (and only perhaps) the patterns of importance that we see in opinions-only citation studies would be quite different from that we see in orders. Differences would suggest that the world of opinions is systematically different from the world of dispositions in general, a result with profound implications, most especially for projects that seek to summarize or restate the “law” based on published long-form opinions.

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3 Responses

  1. Sasha says:

    In my experience as a district court clerk, there were several cases in which litigants who knew their way around the courthouse would cite slip opinions, or even attach pages of transcripts, of other judges in the building. This was most common in sentencing, where there is very little published law compared with all the law made in open court every day. My sense is that litigants will/would not hesitate to cite these materials to the extent they’re easily available, and judges and their clerks will at least take a look and be persuaded to the extent that the reasoning is persuasive. However, I agree with you that it doesn’t feel as “disagreeable” to part ways with a stray comment a fellow judge made in court as it is to reject a more considered statement that learned jurist has intentionally contributed to the doctrine.

  2. Susan Franck says:


    I’m going to push you on this, because your analysis assumes a US and/or common law litigation focus. What about civil law and/or shari’a law? Those decisions do not have the same precedential effect, but they nevertheless contain reasoning and analysis and generally an explanation of how code or shari’a principles must be interpreted in accordance with this particular case. (I leave it to civil law scholars to correct any misunderstandings I may have.)

    Or perhaps more importantly, what happens if we go beyond a pure litigation focus? There is a massive debate in the dispute resolution literature, particularly in the context of arbitration, that suggests having reasons matters. Particularly in the context of investment arbitration (i.e. claims arising under NAFTA or CAFTA or other bilateral investment treaties), having a public record of the history of a dispute and the tribunal’s reasoning and analysis is imperative to these disputes, which typically involve matters of sovereignty and public policy. I have seen arbitrators (for example in Methanex v. United States) write 300+ page decisions because the issues are of significant public interest and (as Veeder wrote) because the parties had essentially paid for the arbitrators to resolve the dispute.

    But likewise, other arbitration advocates suggest that including reasoning can be detrimental to the efficacy of the dispute resolution process. For example, in the context of labor arbitration, having an unreasoned decision can be the trade off that get’s made in balancing the social utility of lost productivity from strikes/lock-outs that are caused by labor unrest. Likewise, what about expert determination, where experts issue quick and dirty decisions that may significantly effect a parties rights but may have little (if any) reasoning.

    One wonders if it is simply a question of managing party expectations about what to expect out of the dispute resolution process.

  3. My book is titled Dirty Decisions! The Supreme Court judges issued a memorandum of decision… sneaky little thing. The case they cite supports MY position, not theirs. In Alley v. Alley (a Maine case), they say if a transcript is required on appeal to prove the case, and none is provided, they affirm the lower court decision. We had ten exhibits which would have clearly proved our case. They didn’t look at them and ruled against us… saying that our statement in lieu had failed. I’m nearly done my book. It exposes Maine officials who refuse to take action. No transcript meant no justice for us… the judges calling documentation that lacked price, description of work, and mutual consent an express contract worth $4000. The decisions can be read on my website