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Solum on the Need for Opinions

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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3 Responses

  1. Sasha says:

    In my experience as a district court clerk, there were several cases in which litigants who knew their way around the courthouse would cite slip opinions, or even attach pages of transcripts, of other judges in the building. This was most common in sentencing, where there is very little published law compared with all the law made in open court every day. My sense is that litigants will/would not hesitate to cite these materials to the extent they’re easily available, and judges and their clerks will at least take a look and be persuaded to the extent that the reasoning is persuasive. However, I agree with you that it doesn’t feel as “disagreeable” to part ways with a stray comment a fellow judge made in court as it is to reject a more considered statement that learned jurist has intentionally contributed to the doctrine.

  2. Susan Franck says:

    Dave

    I’m going to push you on this, because your analysis assumes a US and/or common law litigation focus. What about civil law and/or shari’a law? Those decisions do not have the same precedential effect, but they nevertheless contain reasoning and analysis and generally an explanation of how code or shari’a principles must be interpreted in accordance with this particular case. (I leave it to civil law scholars to correct any misunderstandings I may have.)

    Or perhaps more importantly, what happens if we go beyond a pure litigation focus? There is a massive debate in the dispute resolution literature, particularly in the context of arbitration, that suggests having reasons matters. Particularly in the context of investment arbitration (i.e. claims arising under NAFTA or CAFTA or other bilateral investment treaties), having a public record of the history of a dispute and the tribunal’s reasoning and analysis is imperative to these disputes, which typically involve matters of sovereignty and public policy. I have seen arbitrators (for example in Methanex v. United States) write 300+ page decisions because the issues are of significant public interest and (as Veeder wrote) because the parties had essentially paid for the arbitrators to resolve the dispute.

    But likewise, other arbitration advocates suggest that including reasoning can be detrimental to the efficacy of the dispute resolution process. For example, in the context of labor arbitration, having an unreasoned decision can be the trade off that get’s made in balancing the social utility of lost productivity from strikes/lock-outs that are caused by labor unrest. Likewise, what about expert determination, where experts issue quick and dirty decisions that may significantly effect a parties rights but may have little (if any) reasoning.

    One wonders if it is simply a question of managing party expectations about what to expect out of the dispute resolution process.

  3. My book is titled Dirty Decisions! The Supreme Court judges issued a memorandum of decision… sneaky little thing. The case they cite supports MY position, not theirs. In Alley v. Alley (a Maine case), they say if a transcript is required on appeal to prove the case, and none is provided, they affirm the lower court decision. We had ten exhibits which would have clearly proved our case. They didn’t look at them and ruled against us… saying that our statement in lieu had failed. I’m nearly done my book. It exposes Maine officials who refuse to take action. No transcript meant no justice for us… the judges calling documentation that lacked price, description of work, and mutual consent an express contract worth $4000. The decisions can be read on my website http://www.dirtydecisions.blogsource.com

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