10 décembre, 2007 13:16
This reminds me of, Judge Pointer's bias ruling that favored the corrupt implant corporations, after they admitted to collusion with
The ignorant science panel! Then Judge Pointer, went to work for, an Implant corporation.. doesn't that seem fishy to you also? IMHOKaren
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Howard J. Bashman
Special to Law.com
12-10-2007
As someone who looks at far too many appellate court rulings, I've often wondered what causes appellate judges to designate an opinion as "per curiam" -- a Latin phrase meaning "by the court" -- instead of identifying by name the particular judge who wrote the decision.
Perhaps with the notable exception of Bush v. Gore, the U.S. Supreme Court's practice of using per curiam opinions is both straightforward and sensible. After a case has been orally argued, the Supreme Court ordinarily will decide the case by means of an opinion or opinions that identify their authors, except when a judgment is affirmed by an evenly divided court or the Court decides that certiorari had been improvidently granted.
On the other hand, if the U.S. Supreme Court summarily reverses or affirms without oral argument based solely on the certiorari stage briefing, the Court's disposition will ordinarily be by means of an unsigned per curiam opinion. Sometimes these per curiam decisions garner dissents, and thus it is possible to rule out some potential authors of the majority opinion. Nevertheless, the reader is left to guess who the author of the per curiam decision is based on what the opinion says and how it is written.
By contrast, at the federal appellate level, no established rules seem to exist concerning when an opinion will be designated per curiam in place of identifying the judge who has written the decision. It doesn't trouble me when a federal appellate court's non-precedential decisions are issued as per curiam opinions. Because non-precedential rulings often cannot receive the same time and attention as for-publication precedential decisions, I can understand a given judge not wanting to be named as the author. Moreover, at least in the 9th Circuit, we know that some non-precedential per curiam opinions were written by staff counsel and merely approved by judges.
However, when it comes to precedential rulings that are designated as per curiam, the judges' rationale becomes more difficult to understand. Frequently, a precedential decision designated as per curiam will be shorter, and perhaps not as difficult to prepare, as a decision to which a judge's name is affixed. But there are certainly exceptions to this rule, as the 9th Circuit's nearly 50-page per curiam majority opinion in the most recent Exxon Valdez appeal demonstrates.
Another possibility is that judges opt to designate a precedential opinion as per curiam when the drafting of the decision was a shared endeavor with other judges. On occasion, some majority opinions carry the name of more than a single judge as the authors, but this practice remains uncommon. A judge who doesn't think it fair to identify himself as the author when colleagues have made substantial contributions to an opinion may feel more comfortable designating the decision as per curiam.
There are potentially more questionable reasons for why a judge might choose to issue an opinion as per curiam. These reasons can range from federal appellate judges' personal disagreements with the results they have reached to concerns about their personal safety in an increasingly contentious and politicized landscape. In the latter instance, the identities of the judges who participated in an especially fraught ruling will still be known, but at least the identity of the judge who wrote the decision will remain a mystery.
On the other hand, if the point of using a per curiam opinion is to mask the identity of the opinion's author, you might expect that the author would take care to omit his or her own unique phraseologies or telltale typeface choices. Thus, per curiam opinions issued by a panel on which Senior 1st Circuit Judge Bruce M. Selya served would omit from their concluding paragraph the unique Selya closing "We need go no further." Similarly, for per curiam opinions issued by a panel on which 9th Circuit Judge Alex Kozinski served, Kozinski and his staff would be sure to italicize the "v." in cited case names -- as all 9th Circuit judges except for Kozinski seem to do. (See here and here for examples of per curiam opinions bearing the Kozinski case citation style.)
My final criticism of precedential federal appellate court decisions issued as per curiam rulings is that some people believe that those decisions are entitled to less weight than signed opinions. That observation holds true at the U.S. Supreme Court level -- but at the intermediate federal appellate level, it does not.
As the headline of this essay suggests, I would prefer if federal appellate judges stopped issuing precedential decisions as per curiam opinions and instead identified the author or authors of decisions by name. That would enable me to focus more of my attention on wondering why some federal appellate judges have started to note that they "concur in the result" or "concur in the judgment" only, without any further explanation of how or why they disagree with the majority's decision.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
