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Cogitations on Appellate Decision-Making" |
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Footnote 1:In any event I would be foreclosed from discussing any legal question which might come before our Court. Footnote 2:On the transition from lawyer to judge, I have found most interesting the recent article by the Honorable Robert Satter, The Quality of a Judge's Experience (65 A.B.A. J. 325 (June 1979). I detect, however, a note of melancholy to which I would not subscribe. From another perspective, see Alport, Athens and Ziller, Becoming a Judge: the Transition from Advocate to Arbiter, Judicature (Vol 62, No. 7. P 325). Footnote 3:Stephens, The Functions of Concurring and Dissenting Opinions in Courts of Last Resort, 5 U Fla. L. Rev. 394, 401-402. Footnote 4:Fuld, The Voices of Dissent, 62 Col. L. Rev. R 923, 927. Footnote 5:Moorhead, Concurring and Dissenting Opinions, 38 Amer Bar Assn J 281, 823; Stephens, op. cit. 5 U. Fla. L. Rev. 394, 401-404. Footnote 6:Leflar, Appellate Judicial Opinions 203 (1974). Footnote 7:It must be recognized that I write as a judge of a State Court of last resort. Quite different criteria may be applicable in intermediate appellate courts, where, for instance, a dissenting opinion may create a right to further appeal (cf. CPLR 5601 [a] [i]). As to the pertinent considerations in the Supreme Court, see Rehnquist, The Supreme Court: Past and Present, 59 A.B.A. J. 361, Footnote 8:I seek an even broader tolerance from my listeners. I ask for understanding when scrutiny of my own writings over the past seven years reveals discrepancies and deviations from or violations of the standards that I now proffer. My views as to the role of one member of a collegial appellate court are the produce of an evolutionary process; experience and exposure are persuasive instructors. Indeed, certain principles have only now emerged in greater clarity as I have prepared this very paper. Footnote 9:Moorhead, op. cit., A.B.A. J. 821, 884; Stephens, op. cit., 5 U OF Fla L. Rev. 394, 408-409. Footnote 10:Mason City & Fort Dodge R.R. v Boynton, 204 U.S. 570, 578, following Madisonville Traction Co. v St. Bernard Mining Co., 196 U.S. 239, 257. Footnote 11:Hughes, The Supreme Court of the United States 68 (1928). Footnote 12:Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211, 218. Footnote 13:See, e.g., Badigian v Badigian (9 N.Y.2d 472, 474) which became the majority view in Gelbman v Gelbman, 23 NY2d 434); Pleasant Valley Packing Co. v Talarsco (5 N.Y.2d 40, 49) which was followed by the majority in Columbia Broadcasting System, Inc. v McDonough (6 N.Y.2d 962); Matter of International Assn. of Machinists (Cutter-Hammer, Inc.) (297 N.Y. 519, 520) which was given legislative validation by enactment of Civil Practice Act, §1448-a (L 1952, ch 346, § 1). Footnote 14:Fuld, op. cit., 62 Col. L. Rev. 923, 928-929. Mr Justice Holmes himself observed that "... it is useless and undesirable, as a rule, to express dissent" (Northern Securities Co. v United States, 193 U.S. 197. 400 [diss opn]). But see Stephens, op cit., 5 U. Fla. L. Rev. 394, 405-408, 409-410. Footnote 15:Moorhead, op. cit., 38 A.B.A. J. 821, 822; Stephens, op. cit., 5 U. FLA. L. Rev. 394, 395-396. Footnote 16:Stephens, op. cit., 5 U. OF FLA. L. REV. 394, 397. Footnote 17:Moorhead, op. cit., 38 A.B.A. J. 821, 823. Footnote 18:Moorhead, op. cit., 38 A.B.A. J. 821 , 822. As a staunch adherent of the independence of the judiciary I find appalling, of course, the suggestion of Thomas Jefferson (advanced in implementation of is view that the power of the court should be curtailed and that the Congress should be the final arbiter of the meaning of he Constitution) that each member of the Supreme Court of the United should be required to announce his view in a separate opinion in each case; that the Congress should formally denounce such judicial views as it disagreed with; and that, if the justices failed to adopt the conclusion reached by the Congress, impeachment should follow. Warren, the Supreme Court in United States History, vol. 1, p. 655 (1935). Footnote 19:Evans, The Dissenting Opinion-Its Use and Abuse, 3 Mo. L. Rev. This interesting article, written by the Honorable Evan A. Evans of the United States Circuit Court of Appeals, Seventh Circuit, in 1928, contains a good collection of statements disfavoring the publication of dissenting opinions and reports that an informal survey among lawyers then disclosed a near unanimity of opposition to them. Footnote 20:The appeal of a dissent "can properly be only to scholarship, history and reason, and if the business of judging is an intellectual process, as we are entitled to believe that it is, it must be capable of withstanding and surviving these critical tests Stone, op. cit., 26 J. Am. Jud. Soc'y 78. Footnote 21:I do not, however, subscribe to what strikes me as an overdrawn formulation-"Freedom of expression for the appellate court is closely related to the constitutional guarantee of freedom of speech." Stephens op. cit., 5 U. Fla. L. Rev. 394, 400. Footnote 22:I must add, with all respect, that it is difficult to understand what constructive institutional purpose is served by public expressions of no more than doubt See, e.g., Holmes, J. in Richardson v Shaw (209 U.S. 365, 385): "A just deference to the views of my brethren prevents my dissenting from the conclusion reached, although I cannot but feel a lingering doubt." Again, in Bernheimer v Converse (206 U.S. 516, 535), Mr. Justice Holmes wrote, ". . . under the circumstances I shall say no more than that I doubt the result." Footnote 23:Douglas, America Challenged 4 (1960). Footnote 24:See note 2, supra.
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 The Historical Society of the Courts of the State of New York |
