High court studies: the United States Court of Appeals for the Second Circuit: dissenting at New York's Federal Appeals Court: an empirical study of Second Circuit dissents and the frequent dissenter, Judge Rosemary Pooler.

• Author: Clemente, Jessica N.

I feel intuitively that there is another good reason for dissenting--in a way, maybe the best of all. If you think that you are right and the other judges are wrong, it is right to say so and explain why--no other justification is needed. There 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. (1)

1. INTRODUCTION

   While those in the legal profession spend much time focusing on courts' majority decisions, exploring how those opinions explain and evolve the law, the dissenting opinions of a court are unfortunately often overlooked. (2) Dissents not only show the dissenter's own view of the issue, but also force the majority to redefine and clarify their ultimate decision. (3) Thus, dissents play a useful role by forcing the majority to craft a more definite decision in an effort to clearly distinguish the majority from the dissent. (4)

   Analysis of dissenting decisions is also relevant for legal scholars and practitioners interested in how a judge rules. A dissent is a clear indication of where a judge "felt strongly enough ... [to] use his staff and resources to compose a personal statement to say that his colleagues are wrong." (5) Agreeing with a majority opinion is undoubtedly the easiest choice--one that will appease the majority of the court and result in the judge being on the winning side--but a dissenter must take the time to draft a separate opinion knowing that the effort will have no immediate effect on the outcome of a case. (6)

   This paper presents an empirical study of dissents at the Second Circuit Court of Appeals, with a focus on the one judge, Judge Pooler, who has dissented most in the time period studied. Part II begins by presenting an overview of the Second Circuit Court of Appeals, including the composition and procedure of the court. Part Ill overviews dissents at the Second Circuit, noting the number of times each Judge has dissented. Part IV discusses Judge Pooler, currently the court's biggest dissenter, and analyzes the types of cases in which she dissents. Finally, Part V will conclude with an overview of the meaning of Judge Pooler's dissents and the practical results of this study.

   It is important to note that this study is simply a study. It does not purport to be perfect. Many Second Circuit dissents have come down before and after the time frame of this study. Thus, the numbers of cases and dissents have surely changed from the dates used. The study does, however, present an overview of how Second Circuit judges have dissented in the time period examined in the hopes that the findings are representative of a trend. More specifically, this paper develops an apparent pattern in the dissents of the frequent dissenter, Judge Fooler.

2. COMPOSITION AND PROCEDURE OF THE SECOND CIRCUIT

   The United States Court of Appeals for the Second Circuit is one of twelve United States Circuit Courts. (7) Like other circuit courts, the Second Circuit can hear cases from any of the district courts in the circuit or directly from an administrative agency. (8) The states comprising the jurisdiction of the Second Circuit are New York, Connecticut, and Vermont. (9) Thus, appeals generally come from the District of Connecticut, the District of Vermont, and the Northern, Southern, Eastern, and Western Districts of New York. (10) There are currently twelve active judges (11) and eleven senior judges on the court. (12) Each case is initially heard by one panel, consisting of three judges. (13) Occasionally, if a judge has a particularly heavy caseload, another judge may be temporarily placed on a panel of the court. (14)

   The Chief Judge of the court, Dennis Jacobs, also serves as the court's administrative head. (15) In this capacity, the Chief Judge prepares the calendar and assigns each judge the period he or she must sit for. (16) The Chief Judge is selected in order of seniority from those who satisfy the following criteria: under the age of sixty-five, tenure as a circuit judge for at least one year, and never having previously served as Chief Judge. (17) Once selected, the Chief Judge may serve for seven years or until reaching the age of seventy, whichever is sooner. (18) After serving as Chief Judge, the judge resigns, becoming a member of the court. (19) Judges also have the option of taking senior status after satisfying the "Rule of Eighty," or when a judge's age plus time served equals eighty. (20) Although senior judges are able to hear fewer cases than their active counterparts, senior status is not retirement and many continue to be equally as active. (21)

   In a four to six week time frame each judge will generally sit for approximately one week. (22) Since each three-judge panel is necessarily comprised of different judges each time, in order to remain consistent, judges will often discuss important issues amongst themselves. (23) If there is a particularly important case which would either clarify a circuit decision or resolve a conflict among the circuits, the court may hear that case en banc or with the entire court sitting. (24) Although often requested, the court will very rarely grant a rehearing en banc unless it deals with an issue of "exceptional importance." (25)

   Finally, the Second Circuit may certify a question to a state's highest court for a determination of an unsettled state law issue that would control the outcome of the case at the Second Circuit. (26) Certification can be brought up either by a party or by the court sua sponte. (27) Certification happens quite frequently at the court but is completely discretionary for both the state's highest court and the Second Circuit. (28)

3. DISSENTS AT THE SECOND CIRCUIT

   In the time period studied, approximately five years, the Second Circuit averaged around two to three thousand cases each year, totaling almost twelve thousand cases. (29) Of course many of these cases are in fact court orders or routine decisions. Out of these cases only 117 were split decisions, meaning at least one judge dissented. Including cases where multiple judges dissented, there were a total of 122 dissenting opinions. Split decisions more effectively show the cases that actually caused conflict within the court, not just the "easy cases." To get a better idea of how the Second Circuit judges dissent on important issues, this article mainly examines the split decisions within the court.

   Table 1 outlines which judges dissent the most, including the number of split cases they sat on. An initial observation is that active judges dissent more in raw numbers, but if percentages are considered, Judge Straub and Judge Kearse, both senior judges, have a higher rate of dissent. This is instructive because, although Judge Pooler has the largest number of dissents, Judge Straub has dissented at a higher percentage, notable especially because he is a senior judge. (37) Judge Livingston has the next highest number of dissents and also a high percentage. (38) Chief Judge Dennis Jacobs is ranked next in pure number but slightly lower in percentage; interesting because of his role as Chief Judge. (39) Other judges, such as Judge Parker, have fewer dissenting opinions, however, these are equally important because these limited cases show exactly what issues entice that judge enough to decide to write a dissent. (40)

4. JUDGE POOLER AND HER DISSENTING OPINIONS

   Judge Pooler, who has dissented the most during the period of this study, has a variety of interesting dissents. As discussed above, dissents say a lot about how a judge makes decisions. Further, analysis of a judge's dissenting opinions gives a clearer insight into what values, classes of people, and issues a judge strives to protect. Often, by the time a case gets to an appellate level court like the Second Circuit, it is one of the cases where Justice Cardozo would say there is no decisive law or precedent for the judge to simply apply to the case. (41) In this type of case, a judge has the ability to actually create precedent. (42) To accomplish this, a judge must "deal with such considerations ... [by leaving] the very ground and foundation of judgments inarticulate, and often unconscious...." (43) Thus, not only do dissenting opinions show what a judge's conscious decisions are, but also give a view into a judge's subconscious views or inclinations.

   1. Judge Rosemary S. Pooler

      Before analyzing Judge Pooler's dissents, it is important to observe her biography, including how she rose to the bench and what impact her personal history might have on her decisions at the Second Circuit. Judge Pooler began her career at a small general practitioners firm. (44) After taking time off to have children, Judge Pooler became involved in local politics where she was eventually appointed the consumer lawyer for the citizens of Syracuse. (45) After Judge Pooler was asked to be the enforcer of a consumer ordinance in Syracuse, she subsequently became the consumer advocate for New York State. (46)

      Pooler was next appointed a Commissioner of the New York Public Service Commission. (47) Judge Pooler subsequently shifted her attention to state politics, running for Congress. (48) Although she lost her campaign, Judge Pooler, noted that these races allowed her to "learn[] something about public skills that lawyers sometimes do not learn in the private practice of law." (49)

      Finally, Judge Pooler ran for and won a seat on the Supreme Court in the Fifth Judicial District. (50) Judge Pooler was appointed to the Northern District of New York as a District Judge in 1994. (51) She served as a district court judge until her appointment to the Second Circuit in 1998. (52) Both appointments were by then-President William J. Clinton. (53)

   2. Judge Pooler's Dissenting Opinions

      Although Judge Pooler has dissented the most in the time period studied and certainly...