More on Signed Appellate Opinions

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.

 

 

 

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12 Responses

  1. Curmudgeonly Ex-Clerk says:

    I disagree with your rationales for why opinions attributed to individual judges are important. But more fundamentally, your posts on this subject assume that an unattributed opinion departs from well-accepted American judicial norms. I am not necessarily sure this is so under the circumstances in which you raised this issue. Yes, opinions usually are attributed to a single author. But there are exceptions (other than inconsequential unpublished opinions). The Federal Judicial Center’s Judicial Writing Manual (1991) notes that:

    “In some circuits, the complexity and number of issues involved in a single case have resulted in jointly written opinions. Sometimes the opinion is designated a per curiam, at other times the authors of the different sections are identified.”

    (page 27; available via the Internet).

    The opinion that kicked off this discussion—Whole Woman’s Health v. Cole—is just over 55 pages long. According to the 2012–2013 Clerk’s Annual Report for the Fifth Circuit, the average length of published opinions for the period 2008–2013 varied from 7.9 to 14.4 pages. The report says this change is not due to an actual increase in opinion length, but rather to a change in the metric for measuring length occasioned by the fact that the circuit no longer receives slip opinions from West. But no matter how measured, the Whole Woman’s Health opinion is much longer than average.

    In addition, the Whole Woman’s Health opinion was issued on June 9, 2015—approximately 5 months after the January 7, 2015 oral argument in the case. That is a reasonably quick turn-around for a busy court in a complicated case requiring an opinion several times lengthier than usual. According to the Practitioner’s Guide to the United States Court of Appeals for the Fifth Circuit (Oct. 2014), the median time from filing a notice to appeal to the issuance of an opinion is 8.9 months (page 6; based on Administrative Office of the U.S. Courts statistics). According to the appellee’s brief in the Whole Woman’s Health case, it appears that a notice of appeal was filed on August 29, 2014, a notice of cross-appeal was filed on September 10, 2014, and the court granted expedited consideration of the case based on the request of the parties on October 13, 2014. So the court managed to dispose of this case in close to the median time, despite its complexity.

    And it is not as if these judges were doing nothing else in the interim. Setting aside their responsibilities in other cases, the court also issued a 38-page opinion in the Whole Woman’s Health case on October 2, 2014 in which it granted in part and denied in part the state’s request for an emergency stay of the district court’s injunction.

    It seems to me that joint authorship in a desire to timely decide a case involving complicated issues of public importance is responsible for the designation of Whole Woman’s Health as a per curiam opinion. And that seems in keeping with judicial norms. Or at least I think that’s the most likely explanation, given the facts.

  2. Gerard Magliocca says:

    The problem is that we have no idea if the Fifth Circuit’s opinion was jointly written or whether nobody wanted his or her name on a decision upholding abortion restrictions.

  3. Shag from Brookline says:

    This: “Of course, that argument [favoring anonymous publication] could apply just as well to law review articles as it does to opinions.” can be extended to comments on blog posts.

  4. Joe says:

    The fact that certain complex opinions are per curiams is interesting but without someone aware of 5CA norms, it is far from clear that this opinion fits into that category in respect to 5CA practice.

    The length of this opinion is not really notable to be aside from this. Looking at various same sex marriage opinions, e.g., which I cite since I have read them from various circuits, various issues, even before getting to the merits can be over twenty pages. This is true with other lower court opinions I have read on various issues. This case also was heavily fact heavy, which took some time too. Opinions are so long these days that some use table of contents.

    As to the timely issue, the last comment is on point there. Also, it is really unclear to me if the speed was so significant as compared to many other opinions where time restraints were present. And, it is well known that these opinions are generally drawn up largely by clerks, not written by individual judges. Finally, it is unclear the way this opinion was sped along was because it was some sort of joint effort.

    Anyway, the concerns cited here (comparable to Prof. Kerr’s suggestion for the practice over at PrawfsBlawg) hold.

    • Curmudgeonly Ex-Clerk says:

      Here’s the thing though, Joe. My argument may be under-substantiated, but for a blog comment I am dubious that this is the case and I have yet to see anyone else marshal any evidence on the subject of judicial norms. I at least cite reasons and evidence to fashion a plausible counter-hypothesis. And that’s my point really–that there is a plausible alternative explanation for why this opinion was rendered per curiam. What exactly supports Magliocca’s suggestion that this was all an effort to avoid accountability and criticism other than an assumption that it is so? I see nothing but assertion on his part. And if you are going to lay Magliocca’s criticism on three federal judges and make it stick, don’t you really need something better than an uncorroborated assumption that their conduct transgresses a judicial norm?

      I’m all for more evidence as to what the norm is, but it seems like the folks interested in criticizing these judges ought to be more interested in providing evidence to support their assumptions than they appear to be. I suspect that biases of various sorts animate some of these judges’ detractors (i.e., it was an abortion opinion that went the “wrong” way rendered by three GOP-nominated judges, so we just know their motives are scurrilous). And Magliocca’s arguments about the importance of signed appellate opinions principally seem animated by political and academic concerns (e.g., the ability of legislators to assess judges for further nominations and the ability of academics to study their jurisprudence) without any regard for institutional concerns like deciding appeals in an efficient and timely fashion, which is one of the chief concerns of the federal judiciary and the litigants who appear before it.

      • Joe says:

        I am agnostic about this specific case — I have said so more than once.

        GM here to me is overall speaking on general principle. Are per curiams as a matter of general principle a good or bad idea. I don’t think he is just concerned with one case, which for his purposes isn’t that interesting. It is not because they are “Republican” — GM has in fact noted in the past he himself is Republican or at the very least leans in that direction. So, this isn’t just some sort of ad hominen attack.

        I also would note that “political and academic concerns” isn’t the only reason cited at Paul Horwitz’s blog, in part by those who were former clerks and are active lawyers. So, I don’t think that is the only reason for labeled opinions. Finally, again, I’d like more evidence this specific opinion was not labeled to for efficiency reasons. I have seen lots of cases of some length and fact laden and they all were labeled with the author. It remains unclear to me how not labeling the authorship does much there to save time as a general matter though I guess it might.

        Anyway, GM is right — even if that is the reason, we simply don’t know from the evidence available. So, as I have said already, it would be useful to me if someone familiar with 5CA practice would speak out. After all, other abortion litigation, including fact laden ones, did not result in per curiams. But, GM isn’t concerned with just this one to my reading. He’s speaking IN GENERAL. You seem to infer something personal not really there.

        • Curmudgeonly Ex-Clerk says:

          Magliocca may well be more interested in general principles, but discussion of general principles really only began in earnest after his initial post received push-back in the comments. It is pretty clear that he intended to criticize the Fifth Circuit panel in question. His original post opens with: “The decision of the Fifth Circuit–sure to be before the Supreme Court next Term–upholding the new Texas abortion regulations raises the question of whether per curiam opinions should still exist.” And less than a hundred words later, he concludes that, absent a “rare circumstance” obviously not applicable to that opinion: “More often what they probably fear is public scrutiny and accountability.”

          The Fifth Circuit decision is the only concrete example of this ostensibly undesirable phenomenon that Magliocca cites. So I think it is perfectly reasonable to observe that, if that opinion is explicable on other plausible ground, it weakens his thesis. What other evidence for his thesis does he cite? None as near as I can tell. There’s just this free-floating assertion that what per curiam opinions really are about most often is dodging scrutiny and accountably. (The remainder of his arguments in the comments and this post seem directed toward justifying a different position, specifically that signed opinions are preferable as a matter of policy, rather than supporting his initial suggestion that per curiam opinions are employed to avoid “public scrutiny and accountability.”)

          Even if one accepts that this discussion is about general principles, Magliocca’s overall position appears to be premised on the assumption that there is a strong American judicial norm in favor of signed appellate opinions. And from an armchair perspective, that seems like a reasonable enough supposition. After all, we all read a good deal of opinions and they generally do seem to be signed. The problem is that our perceptions here may be somewhat mistaken. Per Gizzi & Wasby, published per curiam opinions appear to be more common than one might think–7.6 percent of published opinions across the federal courts of appeal (excluding the Federal Circuit) and 15.9 percent in the Fifth Circuit during the 2010–11 timeframe–roughly one in 13 and one in 6 published opinions respectively.

          It’s possible that I could be mistaken in my surmise that biases of one sort or another account for some of the opposition to per curiam opinions. But it’s hard not to think that there is something going on under the surface here. The conclusion to Magliocca’s original post is worth repeating: “More often what they probably fear is public scrutiny and accountability.” As I read it, that’s an assertion that when the judiciary uses per curiam opinions, it generally is operating in bad faith or unprofessionally. That’s a remarkable accusation, given that no evidence has been put forward to substantiate it. (Again, arguments about which policy might be preferable say nothing about the motives of judges who use per curiam opinions. Reasonable people operating in good faith sometimes disagree about what’s preferable after all. But it seems to me like Magliocca finds it so inconceivable that one could not share his policy preferences on this issue that he simply assumes bad faith.)

  5. Joe says:

    The “last comment” was an allusion to Gerard Magliocca’s comment. As to the blog/law review comment, opinions of the court are a tad bit different. For one thing, many times they are read less often.

  6. Paul Horwitz says:

    Thanks for this response, Gerard. I haven’t read all the comments on my post yet, so I there might yet be other criticisms that would strike me as sound. (One such criticism was that regardless of what the overall norm should be, given that norm the Fifth Circuit should have been a per curiam.) Let me just add the following:

    1) Doubtless I spoke too strongly in that post. I’m not terribly insistent upon getting rid of signed opinions. I *am* interested in not taking the American judicial culture for granted, or assuming it is largely all for the best simply because I’m accustomed to it and it reflects some of my own values and desires. And I’m interested in thinking about the ways our current culture and norms link up with larger American, or American lawyers’, cultural norms and values, many of which I think of as rather mixed bags with good and bad features and consequences. If I could sum up the view behind my post, it would be this: Upon reflection, it’s not clear to me that it’s *obvious* that signed opinions are a good thing, or that a culture that emphasized per curiams would be a bad thing. And, without suggesting that they are therefore all bad, I suspect that our current culture reinforces many of the things that many people believe (at least some of the time) are worrisome about American judicial culture and the politics surrounding it. In short, I was convinced that a norm of signed opinions is not *obviously* all for the best, and that it’s worth exploring the point rather than remaining unduly attached to the current system.

    2) It seems to me that in reaching any conclusions about this question, it’s not enough to point to pluses in the signed opinion regime; one has to tote up and compare all the costs and benefits of both systems, including, as best as one is able, the incidental or unforeseen consequences. One also has to consider how much weight to give to particular costs or benefits. Your “reasons for promotion” point is fair, for instance, but in structuring the whole system I doubt that it makes much sense to give a lot of weight to the question of promotion of appellate court judges to the Supreme Court.

    3) As for Judge Friendly, people remember his opinions (if they do; doubtless Friendly merits it, but it is also a cultural norm in American judicial opinion writing to cite to particular famous and authoritative judges; once canonization has occurred, it’s not clear that every additional citation really represents a considered view of the merits of that judge or opinion on the part of the citer), and those of a few others, precisely because those are exceptional judges–and, as I suggested at in my post, it seems to me that American (legal) culture often focuses unduly on exceptional cases and not enough on structuring the system in a way that best reflects the main run of judges, who are unexceptional. Friendly, of course, wrote his own opinions; that is rare today. And I would note that some famous modern judges are not famous because their opinions are terrific, but because they are beloved or despised political figures. Their opinions themselves, which are largely staff work, are not necessarily better than average, just more politically salient than average.

  7. Gerard Magliocca says:

    Part of my problem is that there is no definition of a per curiam. If a circuit said that a per curiam opinion means X, then we could argue about whether such opinions should issue. But I don’t think there is any consensus about that. A per curiam is simply what a panel wants to call a per curiam.

  8. Orin Kerr says:

    Gerard writes: “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.”

    If I’m not mistaken, this assumes that when the White House thinks about possible Supreme Court candidates, their best possible source of information that they rely on is reading the signed opinions of potential nominees. Is this true, though? Several recent nominees had very little in the way of such opinions — Kagan and Miers had zero, and Roberts, Thomas, and Souter had little. Given that most nominees these days are well known personally to the folks in the executive branch, I suspect that they’re not relying as much as you suggest on reading published opinions to learn about potential SCOTUS nominees.

  9. Curmudgeonly Ex-Clerk says:

    I have done some additional digging on this subject, and located an article that may be of interest: Michael C. Gizzi & Stephen L. Wasby, Per Curiams Revisited: Assessing the Unsigned Opinion, Judicature (Vol. 96 No. 3; Nov./Dec. 2012), pages 110–18. I found it via Google, so hopefully you’ll be able to locate it without trouble. It has a lot a data and observations to ponder.

    Joe: Regarding the Fifth Circuit, it indicates that the Fifth Circuit uses per curiam opinions to dispose of published appeals more than average. Using 2010–11 data and excluding the Federal Circuit (for whatever reason–perhaps due to its docket), the average across circuits was 7.6 percent of published opinions disposed of by per curiam opinion. In the Fifth Circuit, the figure was 15.9 percent of published opinions.

    I practice in Texas, usually am involved in cases in federal court here, and clerked for a district judge in Texas before that. So I read and cite a lot of Fifth Circuit opinions in the course of my work and have done so for more than a decade now. I would not have guessed that the percentage was so high. I would have placed it at something like 5 to 10 percent of published opinions in the Fifth Circuit if I had been asked to guess.

    I presume that those who think there is a strong judicial norm against unsigned published opinions probably would not have guessed that the percentage is so high in the Fifth Circuit either (or even as high as the average is across the circuits). The fact that something like one in six or one is seven published opinions in the Fifth Circuit (in the 2010–11 time period at least) were handed down per curiam suggest that any such a norm is weaker—in that circuit anyway.

    That does not tell us then when and why regarding the use of per curiams. That would take a great deal of study, I think (though the Gizzi & Wasby article notes some circumstances in which they have been used; and the FJC’s Writing Manual notes another). As Magliocca indicates in the comments above, there is no rule or definition of per curiam. So I suspect a proper study would find they are used in a variety of circumstances for a variety of reasons. (Unlike others, I don’t think that’s a problem.)