U.S. Court of Appeals for the Eight Circuit holds that nonprecede ntial decisions are *unconstitutional*

[Lederman, Marty]

It's certainly not a "holding" of the Judge Arnold opinion, but . . . I think, fairly read, the rationale of the opinion suggests that there is a constitutional obligation of courts to give reasons for their decisions (even if it's only to "affirm for the reasons stated below"), or, at the very least, to articulate the facts and the legal questions presented with sufficient specificity that a future judge or litigant could discern the "precedent" or the "legal principles necessary to support the decision" (fn.9).

That's not to say that I agree that the Constitution requires opinion-writing; but it's hard to see why the Arnold opinion wouldn't lead to that result.

Marty Lederman

-----Original Message-----
From: Leslie F Goldstein [mailto:lesl at UDEL.EDU]
Sent: Thursday, August 24, 2000 11:14 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: U.S. Court of Appeals for the Eight Circuit holds that
nonprecede ntial decisions are *unconstitutional*


I am wondering if the Arnold pronouncement will have the unintended
consequence of causing judges to stop giving reasons in the decisions that
they know will be unpublished and do not want to have serve as
precedents--if they don't give their reason the decision remains more or
less an inkblot and cannot very usefully be used as a precedent.
LFG



On Tue, 22 Aug 2000, Tom Grey wrote:

> It wouldn't be unconstitutional for a circuit court to decide some appeals
> without giving any reasons at all. Trial judges rule on questions of law
> (admissiblility, motions to dismiss etc) during trial, and sometimes give
> reasons, sometimes not. I take it the idea is that context makes dispatch
> more important than getting it exactly right, and we all know deciding plus
> explaining takes longer than just deciding -- even deciding fairly well.
> But no reasons, no precedential force, right? (In reviewing unexplained
> rulings of law for correctness, an appellate court attributes "the best
> argument" for the ruling as the basis for it.)
>
> As a courtesy to the parties, the trial judge might give reasons, but make
> clear that the only authoritative part is the ruling  -- the judge has more
> confidence in the result than in the reasons for it, given the need to
> decide fairly fast.
>
> Why not the same for courts of appeals? Congress apparently thinks it
> useful, given budgetary priorities, to have them decide lots of appeals,
> more than they can decide with fully considered opinions. They could rule
> from the bench without reasons, as appellate courts sometimes do, or at
> least have in the past. But instead they give reasons (write opinions), as
> a courtesy to the parties. However they haven't spent enough time on
> formulating the reasons that they want them to serve as binding precedent
> -- particularly in a court that lets a single panel bind the circuit,
> absent reconsideration en banc. So, the decisions aren't precedential.
> What's unjudicial about that?
>
> Another reason for limiting the number of authoritative precedents is to
> simplify the law in the circuit. Other things equal, the more citable
> precedents, the more conflicting arguments available to counsel -- and the
> greater the advantage held by parties who can spend more on quantity and
> quality of lawyering.
>
> The decision has a bit of a mandarin air. Something like, "As federal court
> of appeals judges we are very scarce and valuable resources, and should not
> be enlisted in the routine administration of justice -- as for instance
> just deciding appeals as of right in more cases than we can write scholarly
> opinions about."
>
> Hey, how about those old guys way back then who had to ride circuit over
> muddy roads and try cases as well as hear appeals? They had to really
> suffer to find time to write the occasional opinion for the lawbooks. Why
> didn't that violate Article 3?
>
> -- Tom Grey     Stanford Law School    tgrey at law.stanford.edu
>