Dissent & vindication in the departments: an empirical study.

• Author: Lewis, Caitlain Devereaux
• Position: New York

Last year's inaugural issue of New York Appeals featured a section devoted to the New York State Court of Appeals. Beginning with a comparison between the Chief Judge Kaye and the Chief Judge Lippman courts, (1) the section then profiled each judge of the Court by examining particular aspects of their decision-making processes and jurisprudence. (2) As a follow-up, this year we thought it would be fitting to delve deeper into the New York State Supreme Court, Appellate Division, and each of its four departments. Realizing the magnitude of such a task, we determined that we would have to limit our examination to a particular aspect of the Appellate Division. To this end, in the fall of 2010, the Albany Law Review conducted a study of the dissents produced by each department from 2000 to 2010. (3) Dissenting opinions may seem like an unusual lens through which to gather observations about a court, however we found that dissenting opinions served as an interesting conduit into each of the departments. Our dissection of dissents unveiled an interesting viewpoint of each department, revealing perspectives which would not have surfaced through examining other trends.

We are delighted to have Judge Robert S. Smith of the New York Court of Appeals begin this special section by sharing his thoughts on why he dissents, and detailing the importance and value of dissenting opinions. (4) As Judge Smith avers, dissents are important because, for judges, "[t]here is a moral obligation to say what you think--not an absolute obligation, of course; certainly, there are times when the right thing to do is keep silent. But the duty to say what you think is, itself, entitled to some weight." (5) Through its dissenting opinions, we found that the personality and character of each department really surfaces.

This special section includes four student-authored research studies, one for each department, which provide a profile of each department and a brief analysis of the data we collected. Together, these articles also provide a detailed examination of the concept of "vindication"--situations where a dissenting opinion issued at the appellate level is later affirmed on appeal, in outcome and reasoning, by the Court of Appeals. (6) The study also examines how the departments differ in their dissent rates, and identifies patterns that emerge regarding dissent vindication and the tendencies of individual judges.

METHODOLOGY

The time period under investigation was...