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Federal Appellate Judge Dissents Without Reading Majority Opinion,

because "this is not a case that should occupy the mind of a person who has anything consequential to do."

I kid you not; the opinion, dissenting from a 44-page majority opinion that finds a university president's actions violated the First Amendment rights of a student newspaper, is here.

It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.

Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Strange First Amendment Decision:
  2. Federal Appellate Judge Dissents Without Reading Majority Opinion,
The Ghost of Xmas Past (mail):
Justice Thomas is moonlighting?
7.13.2007 5:07pm
Eugene Volokh (www):
The Ghost of Xmas Past: Huh? Why Justice Thomas?
7.13.2007 5:10pm
rarango (mail):
Because professor Volokh, we all KNOW Justice Thomas is the AA judge who never speaks during oral arguments and therefor must not read as well. /sarcasm off
7.13.2007 5:12pm
Joe Blow:
I beg to differ, Eugene. The dissent does speak to the merits: it concludes that whatever violation of the First Amendment that may have occurred was not clearly established at the time. It seems that it is you that is guilty of not reading what you are criticizing, not the Chief Judge...
7.13.2007 5:12pm
Ubertrout (mail) (www):
A slight correction - Chief Judge Jacobs is not dissenting - he's concurring in part and dissenting in part. I'd assert that doing so without reading the majority opinion is even more impressive.

As an aside, I do think that the Chief Judge makes some good points, and it's a lively 4-page read (less if you don't bother with the lengthy footnote mocking the left-wing student newspaper, but why would you want to miss that?). That said, it would probably have been more productive to argue that the case should have been dismissed on standing or mootness grounds than to engage in theatrics.
7.13.2007 5:22pm
OrinKerr:
Bizarre. Particularly so for the Chief Judge of the United States Court of Appeals for the Second Circuit, commenting on the opinion written and joined by two highly respected and long-serving Circuit Judges.

(Joe Blow -- No, it seems that it is you that is guilty of not reading what you are criticizing, because Eugene never said that the dissent did not speak to the merits. So clearly I cannot take the cup in front of me.)
7.13.2007 5:27pm
Dave N (mail):
I find this no stranger than a Ninth Circuit amended opinion issued today, in which Judge Reinhardt wrote the court's decision; Judge Noonan wrote a concurring opinion; Judge Reinhard wrote a concurring opinion agreeing completely with Judge Noonan's opinion; and Judge Fernandez wrote a concurring opinion to state that even though two judges on the panel agreed on something (in this case, the unconstitutionality of 28 U.S.C. 2254(d)), no one should treat Judge Noonan's opinion as a holding of the court.

I kid you not, the case is available here.
7.13.2007 5:28pm
Greedy Clerk (mail):
This is called judicial activism. Judge Jacobs apparently thinks cases over nominal damages are a waste of time. Yet Congress has never said that 1983 cases cannot be tried when only nominal damages are at issue, and (I assume) that when 1983 was enacted nominal damages for tort actions was generally accepted. If Judge Jacobs thinks the law should not be as it is, he should resign. At least that's what I would hear from a bunch of conservatives if a "liberal" judge were to write such an outrageous and mocking opinion that moreover apparently believes that the Court should just ignore the law because only nominal damages are at stake, despite the fact that this is a remedy presumably authorized by the legislature and no doubt consistent with the Constitution.
7.13.2007 5:29pm
Greedy Clerk (mail):
Dave N -- that opinion was issued a long time ago with that same bizarre show. Whatever the amendments were, the same little thing happened then.
7.13.2007 5:30pm
Joe Blow:
Kerr-
Not sure what's so bizarre about the dissent. A lot of regular folks (i.e. those who haven't had the privilege of ascending to the ivory tower) would find it "bizarre" that two highly-competent (and highly-paid) federal judges took months of their time (and 44 pages of text) to deal with a case about nothing; certainly there are more pressing issues, aren't there? If you don't want to ask the regular folks, ask the prisoners whose appeals are piling up on the circuit's docket while the judges decide cases like this one. I think Judge Jacobs got it exactly right.
JB
7.13.2007 5:36pm
Rhode Island Lawyer:
Orin,

While Eugene did not expressly say that the dissent "did not speak to the mertis", that is certainly the import of his post:


It's too bad that the dissenting judge didn't take the case more seriously



It seems to me that the matter deserved his time and attention.


What else are we to assume from those statements other than the judge didn't deal with the issues at hand and merely dismissed the entire matter as "this silly thing." We may not have direct evidence, in the form of specific comments, that EV felt the judge did not "speak to the merits"; however, the circumstantial evidence is pretty clear.
7.13.2007 5:38pm
contrarian:
This case is now getting far more scrutiny, and from First Amendment experts to boot, than it ever would have had the dissent begun with the usual boilerplate.
7.13.2007 5:43pm
OrinKerr:
Joe Blow,

I realize that you have responded to me in your comment above. However, I have not read your response, so I cannot comment on it. Indeed, no person with any consequential things to do should read your response.

Orin
7.13.2007 5:59pm
John (mail):
I thought the opinion was excellent. The Chief judge stated his view, gave his reasons, and went home. More judges should do the same.

I agree that the slap in the face to the majority was a bit over the top, but it was entirely deserved--if not from the Chief Judge, then from some commentator.

I'd be interested in what people think is both correct as a matter of law and of any importance in the majority opinion.
7.13.2007 6:22pm
Constitutional Crisis (mail):
How could Judge Jacobs sign his name to that? Grounds for impeachment, frankly, even if he's just trying to make a point.

And as far as it goes in trying to belittle and diminish the plaintiffs, his dissent does just the opposite.
7.13.2007 6:27pm
Anderson (mail) (www):
While Eugene did not expressly say that the dissent "did not speak to the merits", that is certainly the import of his post:

Well, yeah ... I am bewildered how the judge could be said to have spoken to the merits without having read to learn what those merits were, in the majority's view.

Judge Jacobs should save the snark for his pseudonymous comments at the VC.
7.13.2007 7:05pm
MikeC&F (mail):
Greedy Clerk: You make good points. But you missed the talking points memo: Only liberal judges may engage in judicial activism.
7.13.2007 7:09pm
interesting:
Anderson, and I am bewildered by your bewilderment.
7.13.2007 7:15pm
OrinKerr:
Greedy Clerk, Mike,

I realize that the conservative activist thing is a fun accusation, and it is sometimes justified. But affter the unfortunate passage Eugene posts about above, Judge Jacobs settles down and then turns to the merits of the case. It's worth checking out, at least insofar as you are really interested in knowing how Judge Jacobs would have decided the case.

Orin
7.13.2007 7:20pm
Eugene Volokh (www):
I'm puzzled by the defenses of Judge Jacobs. Maybe he's entirely right on the merits. But how is it professional behavior for an appellate judge to reach a decision without even bothering to read the arguments of two colleagues who reached the contrary decision?

Those two judges seem to think that Judge Jacobs is mistaken. Maybe they are the ones who are mistaken, but shouldn't he read their arguments reaching their position before publishing his own arguments rejecting their position? And isn't his failure to read the arguments pretty good evidence that he is not "tak[ing] the case ... seriously" enough?

Sure, he did briefly discuss half the substantive question -- the qualified immunity inquiry. And he incorporated by reference the lower court judge's opinion as to the rest of the question. But that doesn't explain why he thought it proper not even to bother reading his colleagues' contrary views.
7.13.2007 7:22pm
interesting:
I agree. I thought Judge Jacobs was a respected Judge? This was an unfortunate lapse that makes him look bad. When I clerked, my judge was noted for his restraint and respect for the lower (or as he would say "district") court's opinion, but I think he viewed it as his responsibility to address the majority's opinion. If the majority is right, then it's a terrible mistake not to read the opinion. If the majority is wrong (especially in a 44 page opinion), you should tell them (as well as judges/justices everywhere) why.
7.13.2007 7:32pm
David Muellenhoff (mail):
I disagree. There are times when the most effective argument is not a detailed discourse on the merits but simply a derisive backhanded slap.
7.13.2007 7:47pm
interesting:
Does disagreeing with the majority without even knowing what they say qualify as an "argument." If so, do you really find such an "argument" "effective"?

Further, is it ever "one of those times" when your opponents are two well-respected federal judges?

Finally, why is this case "one of those times"?
7.13.2007 8:03pm
Bill Dyer (mail) (www):
It's abundantly clear to me that the dissenting judge did indeed take his duties very seriously, and the point he is making — in a very vivid, deliberate fashion — is that those duties require that this appeal, on its merits, ought not be taken seriously, and that the appeal instead should have ended with a simple affirmance on the basis of the district court's opinion (emphasis his):
On the merits, I would affirm for the reasons given in Judge Gershon's careful and thorough opinion (which I have read).

How can you not quote that sentence, or at least paraphrase it, in describing the subject matter of this post, Prof. V? You're painting Chief Judge Jacobs as, at a minimum, un-serious, and quite possibly as also having been lazy. I don't think that's at all a fair characterization of his opinion. Instead, it's obvious to me that he deliberately, and very provocatively, set about making a point — and you have indeed been provoked, but somehow you've missed that point!

Or do you want to take a position (contra Chief Judge Jacobs) that, on its merits, this was indeed a serious case entirely worthy of the courts' and litigants' time and efforts? Do you want to argue that it's inappropriate for a judge to speak out strongly, or ever engage in a symbolic act of disgust, when he finds that the system's resources have been abused? If so, you might want to explain why that is so, lest your readers draw adverse and unfair conclusions about you from this post.
7.13.2007 8:23pm
Bill Dyer (mail) (www):
Let me try to say this another way. I read Chief Judge Jacobs as saying this is a case of de minimis non curat lex, and that whether his colleagues' discussion of refined First Amendment concepts are right or wrong, the case isn't worth their time, and he's not going to encourage people to waste the federal courts' time by participating in the charade that this case actually matters.

Prof V, do you think there can never be instances of de minimis non curat lex whenever someone fervently breathes the words, "First Amendment"?

Or are you saying that even when he's firmly convinced that this appeal isn't worth his or his fellow judges' time, he nevertheless ought to fly-speck and, as appropriate, quibble with his fellows simply as a matter of politeness — even if that runs contrary to his own view that his duty requires him to "call BS" on the entire appeal?
7.13.2007 8:32pm
interesting:
Mr. Dyer: perhaps your post is actually a good candidate for Mr. Muellenhoff's brand of argumentation. But I'll bite. As Prof. Volokh pointed out in his short post, the majority's opinion is precedent. Even if the case before the court was silly, the holding will presumably apply to future cases. If the majority's opinion was wrong, Judge Jacobs should have explained why. Failing to do so is not a serious approach to law. It is also arrogant because it assumes that the majority is wrong and had nothing worthwhile to say.
7.13.2007 8:36pm
PDXLawyer (mail):
On the one hand, I agree with EV. Even is the case wasn't important, the opinion is important because it will be published and read by others in other cases (including many that never get to court). On the other hand, there is nothing wrong with a dissent focusing on a threshhold issue and simply never expressing an opinion on issues past the threshhold. The second part of the dissent does the proper judicial work. The first part is simply a printed judicial temper tantrum.

I have two problems with the dissent. First, this judge got sidetracked from the issues by reciting the plaintiffs' stupid politics. While I share the judge's political sentiment in my capacity as a private person, I deplore his apparent display of poor judical temper. Venting and humiliating a party by bringing up irrelevant and embarrassing matters is bad form. A gentleman does not gratuitously humiliate those over whom he has authority. It also undermines his judicial authority by suggesting that his judicial decision was based on the facts he recites, even though he says they're irrelevant. If they don't really matter to him, why is he telling us about them?

Second, I agree with EV that refusing to read an opinion which a colleague has publicly signed is gratuitously uncollegial and comes close to an abdication of his role. Two judges thought it was important enough to be printed in the reports and fill libraries thorughout the US. Deciding they were wrong without even knowing what they wrote is arrogant. I understand the impulse to avoid subjecting himself to the stress of wading through a bunch of nonsense, but ultimately that is what he signed up for in becoming a judge. His job is to consider the arguments *before* making a final decision. It is understood that it is OK to delegate some judicial scut work (like drafting opinions in part or in whole or reading insiginficant briefs) to clerks, but one must be willing to stand behind that work - not disclaim it.
7.13.2007 8:54pm
Guest-poster (mail):
What Judge Jacobs said was over the top. But it all seems more reasonable if you think of the path of judicial work. Imagine the following scenario (for which I have not the slightest factual support--it is purely hypothetical). The case came in, the judges read the briefs and the opinion below, and Judge Jacobs thought the case was pointless and had no merit. (He cites a previous opinion of his about nominal damages--this is not the first time he's considered the issue.) Let's guess that Judge Jacobs suggested that the court didn't need oral argument and should write a two-page opinion. The other judges disagreed; oral argument was held; it confirmed all of Judge Jacob's thoughts that the case was frivolous. At this point, he might even be thinking of Rule 11. The other judges think there's an issue, they argue it out in conference--so he knows what their position is--and they eventually agree to disagree. Judge Jacobs will write an effective and pointed criticism of the futility of the case--made more effective, or at least more memorable by the over-the-top line--and the other judges will write up their extensive opinion. It's clear from conference and subsequent conversations that no one's mind will be changed; for Judge Jacobs, minimizing the waste from the case is a point of principle. One of his clerks reads the opinion to make sure there are no surprises. Now at this point you might disagree with Judge Jacobs's decision not to read the majority opinion, but it's hardly lazy. The work is done; the views are set. Why give up the kind of statement he can make by not reading the opinion?
7.13.2007 8:56pm
Eugene Volokh (www):
(1) Interesting is exactly right.

(2) On top of that, even if this had been an unpublished nonprecedential opinion, a judge on a multi-member court ought to take seriously his colleagues' arguments at least to the extent of reading them. After reading the arguments, he may well conclude that the case is not important enough to justify a detailed dissenting opinion. But it strikes me as unprofessional for a judge to vote against his colleagues' views without even bothering to read the colleagues' explanation for their views.
7.13.2007 8:56pm
David Muellenhoff (mail):
I am assuming that Judge Jacobs wrote as he did because a) he knew very well, either from oral discussion with his colleagues or with staff, the kind of argument they were going to waste 44 pages making, and b) he didn't want to waste his time plowing through it when his point could be made without reference to those arguments, whatever they might be.

More importantly, he obviously wished to c) express his disgust with his colleagues' approach in a memorable and stinging manner. I suspect he thought that this approach would be more effective in curbing his colleagues' behavior than if he had legitimized their approach by engaging in detailed rebuttals.

If a judge truly believes the majority had nothing worthwhile to say, I think he is perfectly right to say so.
7.13.2007 8:59pm
Bill Dyer (mail) (www):
It's entirely common for dissenting judges to simply say, "I believe the majority should not have reached the merits of Issue X because ...," and then to say nothing further. In their view, in fact, they damn well ought not say anything further because it would amount to an advisory opinion.

The two judges who were in the majority did indeed create precedent binding upon the Second Circuit (unless undone by the SCOTUS or the en banc court). But that was presumably going to happen whether Chief Judge Jacobs did or didn't fly-speck the majority opinion, and it will be clear to any later courts looking at this opinion that on the merits of the First Amendment issues (as slightly distinct from the qualified immunity shadow-versions thereof), it reflects the views of only two of the three judges on the panel.

Chief Judge Jacobs expressly declined to "assume that the majority is wrong"; instead, he very pointedly established that he doesn't know what they said because he didn't read it. And he explained why he didn't read it, very vividly. You want him to say: "This isn't worth my time, or any federal appellate judge's time, but here's what I'd say if it were worth my time." He (and I) think that's silly.

A few additional points:

None of the judges could properly affirm or reverse the district court's judgment on grounds that weren't briefed and argued in the trial court. And the case was briefed and argued, on one side, by the New York Attorney General's office, and on the other by Akin Gump. There was even an amicus listed among counsel. Chief Judge Jacobs presumably read and considered, in the ordinary fashion (which means, perhaps through clerks) the entire record from the district court and all the briefs. He was at the arguments. He was at the post-argument conference. Nothing stopped Judges Walker or Calabresi from picking up the phone and saying, "Dennis! I really do wish you'd look at the majority opinion closely, at pages xx-yy!" If none of that could convince him that there was something about this case important enough to justify his consideration of it on its merits beyond all that, then there's simply not much reason to think that parsing Judge Calabresi's 44-page opinion would change his mind about the importance (or lack thereof) of this case.

Look, this is the Chief Judge of a federal court of appeals. He's probably participated in tens of thousands of appeals. He has executive responsibilities as Chief, and an obligation to see the big picture. He took this case as an example in which to say, "In the big picture, we have better things to do than to referee every twist and turn of a college pissing match -- especially when the only people who even much care any more are the lawyers who'll be arguing over legal fees (which are going to continue to multiply because the majority has found a genuine issue of disputed fact requiring a trial)."

Maybe he's wrong. But he's not just sluffing off on the job, which is how Prof. V's post makes him look.
7.13.2007 9:09pm
Bill Dyer (mail) (www):
Prof. V: Lemme ask you this:

Suppose Judge Walker had agreed with Chief Judge Jacobs, and as a result, they'd written a per curiam opinion affirming on the basis of the district judge's opinion. Assume further that Judge Calabrezi had written what's now the opinion of the court, but instead as a dissent from that hypothetical per curiam. And suppose as an addendum to the per curiam, Chief Judge Jacobs had written: "My vote to affirm the judgment below should not be read to agree or disagree with anything Judge Calabrezi has written in his dissent, because I believe that the case doesn't justify any further scrutiny, and it would be a misuse of judicial resources to invest them in further scrutiny. In fact, I haven't even read Judge Calabrezi's dissenting opinion — not out of lack of respect for him, but to demonstrate instead the vigor with which I hold to my belief that this appeal isn't worth that commitment of resources."

Has he abused his discretion? Could the unsuccessful plaintiffs-appellants have mandamused Chief Judge Jacobs to force him to read Judge Calabrezi's dissent? Would the en banc Second Circuit, or Justice Ginsberg as Circuit Justice for the Second Circuit, order him to read it? Could they order him to respond, either in depth or at all?
7.13.2007 9:48pm
Gideon Kanner (mail):
That dissenting judge is on to something. As I understand the newspapering game, a paper is owned by people who hire a publisher to manage it and an editor to control the contents. While it is the custom of that business (and it is a business) that owners give freedom to editors to make such decisions, I know of no law that requires them to do so, as the folks working for the Santa Barbara paper found out the hard way recently. Therefore, the owner (in this case the university) is free to to tell a college paper's editor what not to publish, without thereby colliding with the First Amendment. There is nothing in that amendment, to the best of my knowledge, that authorizes an editor to hijack the paper and print stuff against the will of the paper's owners.

If you know any such law, please call it to my attention.
7.13.2007 10:00pm
Guest-poster (mail):
Another hypo: a SCOTUS opinion relies heavily on foreign law for the moral content of some provision of the U.S. Constitution. The majority includes an appendix with 75 pages of citations to foreign legal sources. In dissenting, Justice Scalia has a rhetorical choice: he can comb the 75 pages and dispute their relevance in detail, he can cherrypick the citations to Zimbabwe and Iran, or he can denounce it as so irrelevant that he didn't read it and can only imagine using it to start a campfire. Something is lost with each rhetorical approach. The last one is not gentle and may not even be charitable (cf. the Webster dissent?) but it should be judged rhetorically. It's not abdication, delinquency, or judges playing hooky.
7.13.2007 10:01pm
Peter Young:
The partial dissent is the tantrum of a judge who felt strongly about a position that did not prevail. In reaching this conclusion, I have read the partial dissent but not the majority opinion. Not fair perhaps, but I'm not a judge.
7.14.2007 12:12am
Henry679 (mail):
The contortions some people will go through here to defend a "conservative" jurist are just breathtaking.
7.14.2007 2:02am
Bill Dyer (mail) (www):
This isn't about "conservative versus liberal" politics, or "judicial conservatism versus judicial activism." It's about serious versus silly. A 44-page opinion about a 10-year-old squabble about whether a student editorial board was "chilled," as reflected in its "diminished emphasis" in later endorsements of other candidates, after a postponed student government election at a Staten Island community college is ... silly.

If one can't see that this is at least mostly driven by the desire to squeeze legal fees out of the taxpayers of New York State, one must be uncommonly naive or uncommonly idealistic.

I won't burden the VC's bandwidth further, but I have published a long war story from my own judicial clerkship days, along with my further screed, over on my own blog: Second Circuit Chief Judge Jacobs' dissent in Husain v. Springer: An opinion worth occupying the minds of people with consequential things to do, albeit arising from an appeal that otherwise shouldn't. Thanks, as always, for the opportunity to comment here.
7.14.2007 4:21am
RPS (mail):
My suspicion is that Judge Jacobs included that line mostly to get a rise out of people in a hope that they would go around saying stuff like, "But it strikes me as unprofessional for a judge to vote against his colleagues' views without even bothering to read the colleagues' explanation for their views." Or how about, "Grounds for impeachment, frankly, even if he's just trying to make a point." Settle down guys.


He said he didn't read the opinion; he did not say he was not familiar with majority's arguments or that he has not read any of their written product. Maybe one of the other judges circulated a memo laying out his thoughts, Judge Jacobs read it, concluded it was wrong, and felt no need to read the official version. Maybe they discussed it on the phone for an hour. Or as someone else said, one of his clerks likely read it. I don't see much of a difference between his reading it and a clerk explaining to him what was in there. At the very least, we don't have nearly enough information to go tossing around words like "impeachment" and "unprofessional." His opinion may have been unprofessional, but not having read the majority opinion is not per se unprofessional, in my opinion of course.
7.14.2007 12:48pm
OrinKerr:
Bill Dyer,

You say that it's entirely common for dissenting judges not to reach the merits of cases, and you question the need to "fly speck" the majority's opinion. But I gather you agree that it is unheard of for a dissenting judge to a) not even read the majority's opinion and b) broadcast that fact in his dissent? Can you point to other dissents in which a judge has said that?
7.14.2007 1:13pm
OrinKerr:
David Muellenhoff,

Actually, there are a lot of memorable and stinging ways to express disgust with an argument. I can think of ways that are much more memorable and stinging than that.

But what you seem to be missing is that a judicial opinion is not a street fight. The goal is not to "diss" the other side or to bully them. Rather, the goal is to persuade them and readers that the majority's reasoning is incorrect. And refusing to read an opinion is not a very effective way to persuade someone its reasoning is incorrect..
7.14.2007 2:13pm
David Muellenhoff (mail):
I don't think Judge Jacobs intended to persuade at all. He intended to insult. His motives are his own, but they seem pretty clear to me: he's announcing that if the majority does this again, their Chief Judge will ridicule them, publicly.

Has this happened before? Probably not. But we were a much more polite society in the past, and attorneys and judges alike were more respected than they are today. I suspect we will see more opinions like this in the future from other courts. I don't have a problem with that.
7.14.2007 8:03pm
OrinKerr:
David,

I don't think your response makes any sense for at least five reasons.

First, I don't know of any evidence that judges are any less respected today than they were in the past.

Second, I don't understand how changing attitudes about judges among the public would make one judge more inclined to insult another.

Third, an opinion like this is the *cause* of judges losing the respect of the public, not the resut of it.

Fourth, it is obviously Judge Jacobs' opinion that suffers as a result of this opinion. He looks intemperate and obnoxious. In contrast, Judges Calabresi and Walker actually come out of this looking quite good: they were the subject of a bizarre insult and they simpy turned the other cheek. If Judge Jacobs wants to threaten to further hurt his own reputation in the legal community, I'm not sure why that is supposed to intimidate Judges Calebresi and Walker into deciding cases differently. (I'm assuming you don't think Judge Jacobs is like someone threatening to commit suicide, and Judges Calabresi and Walker are supposed to be the rescuers trying to keep him from another self-inflicted wound.)

Fifth, your normative conclusion that you personally "don't have a problem" with opinions like those of Jacobs' is not actually an argument: it is a statement of your personal preference. But very few people share your preference, and fortunately they don't become judges.
7.15.2007 4:00am
Constitutional Crisis (mail):
Since when do the seriousness, or lack thereof, of the facts of a case reflect the seriousness or lack thereof of the legal issues presented? Isn't it often the case that precedent is set based on unusual, or even trifling, facts, if they clearly present an issue worth discussing?
7.15.2007 12:14pm
Moneyrunner43 (www):
Orin,

I have no wish to interfere with lawyers and law professors engaging in an intramural fight. Let me tell you what it look like to a non lawyer.

Judge Jacobs looks like a serious adult, with a wicked sense of humor. He does not suffer fools gladly. He demonstrates that by referencing the plaintiff's case. He ridicules the excessive Jesuetical nitpicking of many members of the bar. You folks are trained to do that and -- in fact --take great pride in that. You may not be aware of how that is perceived by people looking in from the outside. Trust me; it is not always and everywhere admired.

And yes, the Judging and legal business has fallen a bit in public estimation. Remembering the dinosaur eating the lawyer in Jurassic Park? Audiences cheered. The situation has not improved.
7.15.2007 1:45pm
Gideon Kanner (mail):
"I don't know of any evidence that judges are any less respected today than they were in the past."

You are putting us on. Right? Have you been following the polls on that subject?
7.15.2007 5:54pm
Eugene Volokh (www):
Gideon: I actually hadn't heard much about polls on how respected judges are. I vaguely remember hearing polls about public attitudes towards the Supreme Court, which I vaguely recall haven't changed much in recent years, though they do sometimes spike down in the wake of unpopular decisions and then move right back up. But that's just vague recollection, and recollection that's about just the Supreme Court, not about the judiciary generally. It sounds, though, like you have been following the polls more closely -- could you point me to some, please? Thanks,

Eugene
7.15.2007 6:56pm
Moneyrunner43 (www):
Eugene,

I don't want to spend a lot of time searching the Internet for Americans' attitude toward judges and the court, but this is a statistic that should concern everyone in the legal field:

When asked whether the partisan backgrounds of judges influences their decisions, 42 % say a lot, 44 % say some, and only 10 % say not much at all. When asked if "in many cases judges are really basing their decisions on their own personal beliefs" 56 % agree and only 36 % disagree.

I the survey does not tell us how much the numbers have changed, but I am in my sixties and I remember a time when judges were significantly more revered than they are now.

That is an anecdote, not a statistic but people who disagree are not facing reality. The courts can't re-make American society as much as they have without people understanding that many judges are legislators in dresses.
7.15.2007 8:36pm
Bill Dyer (mail) (www):
Prof. Kerr wrote, in response to one of my comments above:
I gather you agree that it is unheard of for a dissenting judge to a) not even read the majority's opinion and b) broadcast that fact in his dissent? Can you point to other dissents in which a judge has said that?

You and I (and, I think, Prof. V) do indeed all agree about that. I do not know of any previous example in which a judge has stated that he hasn't read a colleague's majority opinion (or concurring or dissenting opinion, for that matter). I agree that that is extremely unusual and probably unprecedented. And given that it's from the Chief Judge of the Second Circuit, who's been on the bench since 1992 and has participated in thousands of appellate decisions, I think we can all be absolutely certain that he was being deliberately provocative.

I still think, with due respect, that you are entirely missing Chief Judge Jacobs' point, which he could have made less provocatively, but no more plainly.

Indeed, to say "This isn't worth our time," but then to have proceeded to treat the case as being worth their time by dissecting the majority opinion, would have diluted his message, and would have done nothing to change whatever precedential value the majority opinion may have in the future, nor likely its precedential impact (which is slightly different).

Arguably, by leaving unspoken whatever substantive criticisms he might have about the majority opinion, he's lowered the likelihood of it having future impact. If, for example, he'd written something like Prof. V's critique as part of a dissent, and a future case comes up in which someone asks, "Well, did Husain really expand the law on what can be an adequate 'chilling effect,'" then no one can say, "Chief Judge Jacobs made your exact point in his dissent, but the majority rejected it and went ahead anyway, so of course it expanded the law."

Judge Calabresi's opinion doesn't claim to have made any new law, and quite arguably those of us who think he was wrong would prefer to see the scope of what his opinion actually did do remain thoroughly muddy.

How much more would Chief Judge Jacobs have diluted his point — that this case isn't worth the time of federal judges — if he not only dissented, but led a charge to have Judge Calabresi's majority opinion overturned en banc? Or should he thunder, "I hope the Supreme Court takes this case, just so they can reverse and render a judgment of dismissal (and scold Judge Calabresi for being frivolous in the process)"?

With apologies for link-whoring, here's a link to my further discussion of the case, in response to a question asked by Patterico, about whether the majority opinion is likely to have important precedential effect. I agree with what I understand to be Prof. V's opinion that the majority decision is odd and quite probably wrong; I disagree that it's likely to have much future impact. And I think that's probably exactly why Chief Judge Jacobs chose this particular case to make this particular point in the very provocative fashion that he chose.
7.15.2007 10:29pm
OrinKerr:
Bill,

Your theory, as I understand it, is that Judge jacobs was being deliberately provocative. Specifically, he was trying to be shocking to draw attention to his argument. My response: I don't doubt that for a second. In fact, I doubt anyone disagrees with that.

But as I see it, Judge Jacobs' subjective intent isn't the issue. Unfortunately, Judge Jacobs chose his words poorly: instead of shocking in a way that drew attention to his argument he shocked in a way that drew attention away from it. Had Judge Jacobs chosen different language, it might have achieved the result he had in mind. But he didn't, and we're stuck with the language that he actually used.
7.16.2007 9:57am
Ed Unneland (mail):
My reaction to Judge Jacobs's opinion is like my reaction to the literary device used in _Dutch_ ... Edmund Morris had established a good enough track record to try the device of a fictional character in a biography. Unfortunately, it doesn't work as intended.

In the same way, Judge Jacobs has a good enough track record to use that kind of rhetorical device ... unfortunately, it too did not work as intended.
7.16.2007 11:19am
Bill Dyer (mail) (www):
Prof. Kerr, thanks for the reply comment here (as well as the gracious one you left on my blog).

Are you saying it would have been fine by you that he didn't read the majority opinion, provided only he'd been more polite (or somehow otherwise less shocking) in how he explained that fact?

When you say "shocking in a way that drew attention away from [his argument]," I don't know what that means. The only way I can make sense of that is if you're suggesting that people are so "shocked" when they find out that he didn't read the majority opinion that they, in turn, shut down and can process nothing more than that fact -- i.e., they can't proceed to ask the question, "Well, why'd he say he was doing that?" And the answer to <i>that</i> question isn't hard to find. It's in the title of Prof. V's post here, for example.

Do you mean this is now <i>exclusively</i>an argument over good and bad judicial manners, rather than an argument about whether the appeal is from a silly case? I just don't buy that. I think even most lay readers can grasp the nature of the argument, even if they also conclude that he's been rude.
7.16.2007 11:46am
BruceM (mail) (www):
I figured they were seeking punitive damages on top of the $1 nominal damages. But reading the opinion, they stipulated to $1 in punitive damages! So it really is a suit over $1, or possibly $2 if the jury finds punitives. what the heck are they trying to accomplish? I'm sure any of the judges on the panel would have paid $2 to make the case go away and get it off their docket.
7.16.2007 3:40pm