July 20, 2006

posted by Dave Hoffman

I agree that judges should have reasons. This isn't the same as writing an opinion all the time -- note that Kozinski would have been happy with an oral explanation from Real in response to the lawyer's question. This has nothing to do with writtenness, and also nothing to do with precedentialness -- which is why non-precedential opinions in the Ninth Circuit are no problem for this view.

It's also no problem for this view that most decisions are unexplained -- due process doesn't necessarily require giving an explanation for everything (there's simply too much to explain, on that view), but it may require having an explanation in case a litigant in an appropriate position decides to ask, which is what happened in the Real case.

As for the cert practice at the Supreme Court, I actually think due process requires reasons even there -- though there's no higher authority to review this particular exercise of discretion. This is one due process value that can only be enforced on the honor system, and it is, (publicly) using the moral power of dissents from denial of cert and by having actual standards for the exercise of cert-granting discretion stated in the Supreme Court, and (privately) by operationalizing those standards in cert memos that state reasons.

This sort of thing would more or less scandalize the philosophical forefathers of our present-day system. Someone may correct me if I'm wrong, but the publicity condition is more or less a stock demand in the positive strain of enlightenment writings.

Thomas Hobbes, who was ever the sort to err on the side of the powers that be, gave room for unwritten laws only insomuch as they were universal self-evident facts which arose from the powers of reason: i.e., what we'd think of as common sense. Written laws were by far the wider category, though, and Hobbes insisted that their rulings be a) disseminated to the people with the stamp of approval of the sovereign to show their authenticity (though Hobbes seemed fairly lax about this at some points, basically saying the onus is upon the public to research the law); b) the rulings of subordinate judges must always be in line with reason; c) and their rulings must be in line with the intents of the sovereign.

Along the same lines, he might say that any ruling crucial to a case which has no explicit reasoning, and which relies upon reasons which are neither obvious nor patent to an informed participant, has no hope of legitimacy. For there is obviously nothing reasonable about a lack of reasons; and without evidence of an interpretation of the sovereign's intent, the subordinate judge cannot hope to indicate their judgment is consistent with the will of the sovereign.

The consequences to the system would be interesting if the Kozinskian line were actually followed. Judges would have to be ready to be more encyclopedic.

Sasha's comment obviously correct to me. The issue isn't so much pedantically giving reasons wherever requested, but in having some justification for the decision to supply on demand. "Stop wasting the court's time with this silly discovery dispute and split the difference," for example, would be a perfectly reasonable justification to give on request in resolving the discovery disputes Dave cites as a counterexample to the "explain everything" position.

In addition to the due process values noted by Sasha and the Hobbesian claim, lets not forget the point briefly noted by Kozinski about the appearance of legitimacy. The difference between a presumptively reasoned decision where the reasons aren't explained (as in a summary affirmance) and a decision where the reasoning is challenged and not defended is that the latter creates the appearance of arbitrary decisonmaking, while the former does not. To the extent we care about a legal system that, e.g., commands the respect of the public, we should worry about that. (In a related vein -- Dave, did you ever have the privilege of taking Charlie Nesson's winter evidence @ HLS?)

Dave,

Really interesting project. I'd like to discuss this with you more, but a few thoughts occur to me for a short comment.

First, rule of law is exactly the right question to ask here. This case looks like an illustration of the classic rule-of-law versus rule-of-men problem -- I can point you to a nice article that discusses that topic, published a few years ago in the Wisconsin Law Review -- and should be a godo vehicle for discussion of that issue.

Second, at least based on my own observation from a year clerking in the EDNY, publication practice varies widely by judge. Some judges publish everything; others publish nothing; many fall somewhere in between.

Paul,

The justice earns their position through certain competencies, one of which is their ability to display opinions which are consistent with law. Ability is little more than the possibility of performance, which make the suggestions of yourself and Sasha seem valid.

But the counterargument is that the burden of proof is saddled upon the citizens inappropriately.

I'm not sure that the burden of proof is saddled on the citizens inappropriately. The citizen need not refute the judicial claim that they are making decisions consistent with law. They merely need demand the demonstration, at which point the responsibility to meet the challenge kicks in -- at least on my intuition, and, I think, Sasha's and Kozinski's.

Paul et al.,

Perhaps my use of the word "proof" was unhappy. It would be more like they have the burden of inquiry.

Upon reflection, the difference between your view and mine is quite slender, and doesn't seem to feature many morally motivating aspects which compel one or the other, since both seem to capture (in their different ways) the publicity condition. It's surely true that the justice has an obligation to give reasoning when asked. But the difference appears to be that I think the justice has a duty to offer their reasoning behind non-trivial and non-obvious rulings. The justice is being paid by the citizen, and not vice-versa, so it is at minimum a courtesy.

This doesn't weigh one way or the other, but the implication of a view like mine would be that non-undercover plainclothes police officers would have to present their badges to anyone they wanted to speak to on official business. For in a crucial Hobbesian sense, lawful reasoning is to the judge what the badge is to the cop.

It would also seem to imply, in a very non-Hobbesian way, that any justice who fails in a duty to offer reasoning in nonobvious nontrivial rulings, does not legitimately deserve to be protected from the contempt of the citizen. For contempt is illegitimate (in the political sense) only when the sigils of legitimate authority have been presented.

Admittedly, I suppose that your view has more benefits, and my view more costs. Your view doesn't have to worry about things like how to operationalize "nontrivial" and "nonobvious", while mine does; and your view saves time, while mine takes time. But at the very least, I would say, there's an element of courtesy involved.

In any case, it will be interesting to learn from Dave's study how many judges engage in behavior like Real's.

I don't want to sidetrack the interesting Benjamin/Paul discussion, but I'm curious as to why it satisfies due process simply to have a reason if you don't say it. I would have thought that the reasons for reasons (awk.) are (1) notice for future conduct; (2) increasing legitimacy and compliance; and (3) reducing the likelihood of targeting "we're going to get you" justice. Justifications produced only when demanded satisfy these reasons not at all.

As for Kozinski and this particular case, I don't really agree that he would have been satisfied with just any reason - indeed, Judge Real's exprssed reasons ex post in his briefing didn't satisfy the Judge. He wanted some basis in law, treatise, article, or blawg. A nod to the legal basis for his order. If he'd said "stop wasting the court's time", it clearly wouldn't have been enough [contra Paul].

Here's the question. Is it legitimate for a court to say, as so many of them do, that "D's motion to dismiss is denied"; or "P's motion to compel is granted in part;" or "D's motion to remand is granted" (the classic unappealable order). Is most of district court practice undermining the rule of law?

As for practice in the appellate courts, are summary affirmances similarly problematic? (Sasha's point on cert. practice is interesting, although I don't see how reasons known only to clerks satisfy the public rule of law values that other commentators have been developing).

Dave,

I think you've got to ask a threshold question, which is -- how _much_ explanation and support needs to be given to sustain the rule of law?

I think the answer is going to be very context dependent. For many cases, the response is going to be relatively uncontroversial. Denial of a motion for reconsideration, for instance. "I think my prior reasons are fine" is going to be enough in 99% of the cases.

On the other hand, the more novel or controversial or close the decision, the more that a reason is going to be needed.

Dave,

I think your three reasons for reasons are satisfied to the extent that reasons are demanded and given when they're non-obvious or seriously contested. In order, (1) is satisfied for obvious rulings (the parties and the public are already on adequate notice), (2) is satiafied if the rulings aren't challenged, and (3) is satisfied because a party who is targeted can always demand reasons and reveal the targeting.

WRT Kozinski and this particular case, I think he'd have been satisfied with any generally acceptable legal reason. Here, "stop wasting the court's time" wouldn't be sufficient, because this wasn't a procedural issue. In, for example, discovery issues that are committed to the court's discretion, "stop wasting the court's time" is not only sufficiently commonly offered that it probably does count as a legitimate legal reason, but it's actually written into the rules in any number issues. (For example, many court rules on discovery motions require the parties to consult and try to work it out informally first for just this reason. Many other procedural issues explicitly reference judicial efficiency as the major decision standard.)

We may have a problem with summary affirmances that we don't have with, say, seat-of-the-pants discovery rulings. There isn't such a direct opportunity to demand an explanation from an appellate panel who you don't even appear in person before, especially if they flat-reject the motion for reconsideration. In practice, I've seen several summary appellate dispositions that just seemed utterly unprincipled and unreasoned, with no opportunity to appear and make the judges explain themselves. This would, I think, violate the KOZINSKI-VOLOKH-gowder intuition.

(I have nothing to add to Ben's comment.)

n.b. -- Judge Real is currently presiding over the Bar / Bri class action.

With any luck, he was a BarBri customer.

Real: "Sorry, BarBri, you lose. Judgment for the plaintiffs for 20 billion dollars."

BarBri Counsel: "What? This is the discovery conference! Why? How?"

Real: "Just because I said so, counsel."

Dave,

Judges should provide to the litigants their reasoning on serious or dispositve issues. The litigant who is subjected to binding dispute resolution must walk down the courthouse steps knowing the reasons so that he can go on from there with his lot improved, otherwise he goes out no better than when he came in.

I'm a pro-se with a rather nasty, and interesting, case in NY. I came to this site because I am researching this issue in contemplation of an Article 78 proceeding against a judge who only denies without explanation, particularly when the issue is quite serious. I would like to force the judge to put his thoughts on paper which should be nothing more than a ministerial act. Anyone have any caselaw?