Staying true to the ideals of fundamental fairness: an empirical study of the dissents of Judge Straub.

• Author: Levine, Danielle L.

1. INTRODUCTION

   Just as a judge's background may reveal valuable insights into his or her decision-making process, a glimpse at a judge's opinions may reveal equally as much about a person's belief system. Even though judicial opinions are supposed to be the epitome of objective reasonableness, it is difficult to imagine that anyone is capable of interpreting the law without injecting some of their own personal principles in the process. Even more telling are a judge's dissenting opinions, as they represent one person's unique identification of "should-be" exceptions to the societal norm, legal boundaries aching to be pushed, and arbitrary colloquialisms or stiff expressions in need of clarification, all of which having yet to be identified or fully appreciated by others. (1)

   Because the decision to formally dissent means entering into public disagreement with their colleagues, and due to the fact that dissent can "weaken" the authority of a decision, it is logical to assume that justices will only dissent if they feel particularly strongly about the issue at hand.... [In other words] a justice's pattern of dissent--his or her "stream of tendency"--reveals not only his or her tendency to vote a certain way in certain cases, but also what legal issues matter most in their mind. (2) Judge Straub's dissents are certainly no exception to this view. In order to gain greater insight into his decision-making process, I have given a brief background of Judge Straub, including his career path, in Part II. Part III will theorize why Judge Straub's total number of dissents in this study is less than that of Judge Pooler, and will explore the idea that if not for his senior status, he would perhaps be the "big dissenter" of this study. Part IV takes the individual cases in which Judge Straub has dissented in within the time constraints of this study, summarizes the majority opinion, and describes how Judge Straub's analysis in his dissenting opinions differs from that of his majority opinions. Finally, Part V concludes this study by analyzing how the cases transcend the categories I originally organized them into and create cohesive themes that indicate a jurisprudential trend unique to Judge Straub.

2. JUDGE STRAUB

   In order to fully appreciate the breadth of Judge Straub's judicial opinions, and to recognize significant jurisprudential patterns and the context in which those decisions are made, it is helpful to delve into the background of Judge Chester J. Straub himself. Judge Straub is a Senior Judge (3) in the United States Court of Appeals, Second Circuit. (4) Judge Straub started his trek to the Second Circuit by receiving his B.A. from St. Peter's College in 1958, a Jesuit school in New Jersey, and later receiving his law degree from University of Virginia Law School in 1961. (5) After serving as First Lieutenant in the United States Army Intelligence and Security Command for two years, he joined the law firm of Willkie Farr & Gallagher, and became a partner in 1971; (6) his practice concentrated mostly in litigation, regulatory, and governmental affairs. (7) He stayed there until his appointment to the Second Circuit in 1998. (8) During this time, Judge Straub also served as a New York State Assemblyman, from 1967-1972, and as a New York State Senator from 1973-1975. (9) He is currently a member of the American Bar Association, New York State Bar Association, and The Association of the Bar of the City of New York. (10) He was also "Chair of Gov[ernor] Mario Cuomo's New York Statewide Judicial Screening Committee from 1988 until 1994 and of the First Department Screening Committee from 1983 until 1994" as well as "a member of Senator Daniel Patrick Moynihan's Judicial Selection Committee from 1976 until 1998." (11)

3. JUDGE STRAUB'S DISSENTS

   1. An Examination of Judge Straub's Dissents While Taking into Consideration His Changing Role on the Court Throughout the Course of this Study

      While examining the dissenting opinions of the Second Circuit within the time frame set for this study, (12) Judge Pooler has undoubtedly dissented the most. (13) However, this is not to say that when looking at the dissents both joined and authored by each judge, in respect to the totality of their judicial opinions rendered during their time on the Second Circuit bench, that these results would be the same.

      Even when remaining within the limited time frame of this study, Judge Straub has dissented in a higher percentage of cases when considering the ratio between his dissenting opinions and actual split decision cases heard by each judge on the Second Circuit within the same time period. (14) This is most likely explained by Judge Straub's senior status on the court.

      As indicated by Table 1, it is evident that Judge Straub frequently dissented in cases in which there were split decisions, and the primary reason his total number of dissents decreased throughout his time on the Second Circuit is due to reduced number of cases he heard after obtaining senior status on the court. (17) Even so, after becoming a senior judge, Straub's frequency of dissents actually increased in split decision cases that he did sit for. (18)

      As a judge with senior status, Judge Straub is able "to take on a reduced workload, as little as one-quarter of the work of an active judge." (19) In theory, a judge with senior status can continue "to retain the office ... even while performing exclusively administrative tasks unrelated to the business of the courts." (20) In addition to the option of a lighter workload, senior judges are barred from "voting to reconsider a panel decision en banc or sitting as a member of the en banc court," (21) preventing them from dissenting in cases when they ordinarily might. (22) In order to get a better idea of the impact of a judge's senior status on their workload, it is helpful to look at the amount of cases Judge Straub has heard since he obtained his senior status in July 2008 until the time when this study ends, October 2011, which adds up to 397. (23) This is only a little more than one-third of the cases heard by Judge Pooler, an active judge, who heard 1,059 cases during that same time period. (24)

      Arguably, the dissents of judges with senior status, like Judge Straub, hold even more meaning than those in active status, such as Judge Pooler. (25) This is because judge's with senior status also have the ability to "enjoy considerable control over their dockets and may avoid certain types of cases altogether." (26) In other words, senior judges are able to only hear cases in preferred areas of law, if they choose to do so.

      While this study does not purport that Judge Straub is one of those senior judges to take advantage of this perk, dissenting opinions by senior judges who do choose to tailor their docket to a certain genre of cases are even more valuable and telling than those taken part in by active judges, whether authored by those judges or merely those dissents in which they joined. This is not only because they are more rare, given the lighter case load of these judges, but because they may reveal a judge's attempts to impact a certain area of law that they are passionate about. The dissenting opinion of this judge may also indicate that they have taken the time to hear this case because they truly have something important and groundbreaking to say.

   2. An Examination of Judge's Straub's Dissents in Relation to Dissents of an Active Judge

      Even though Judge Pooler is clearly the judge who has dissented the most in our study, (28) it is interesting to see how the numbers match up between Judge Pooler and Judge Straub once the playing field is evened out. Judge Straub does not have the added benefit of being an active judge for the full duration of his time with the Second Circuit, as Judge Pooler does. (29) In order to compensate for this, Table 2 examines the career decisions of Judge Pooler and Judge Straub, yet also focuses solely Judge Pooler's decisions in relation to Judge Straub's active years on the court. Initially, it is helpful to understand that Judge Straub and Judge Pooler have been on the court for the exact same length of time, both being commissioned on June 3, 1998. (30) And, again, Judge Straub's senior status explains why Judge Pooler's total amount of split decision cases heard exceeds Judge Straub's amount by sixteen. (31)

      However, even though Judge Pooler has heard more cases, Judge Straub has dissented in about 48% of split decision cases he has heard; Judge Pooler dissented in only 41% of those cases. (32) This supports an inference, albeit a weak one, that Judge Straub has dissented more often than Judge Pooler. However, this inference is stronger when we limit the analysis of both judges' decisions to solely the years in which Judge Straub was active, so that they both were assigned and heard roughly a comparable number of split decision cases. For Judge Straub, this would be fifty-two cases, while for Judge Pooler, it was sixty cases. Judge Straub dissented in 38.46% of those cases, while Judge Pooler dissented in 35% of those cases. (33) Keeping in mind that this is still an imperfect analysis, as the two judges did not, in actuality, sit for the same number of cases prior to Judge Straub obtaining senior status, Judge Straub dissented in a greater percentage of cases overall.

4. AN INDIVIDUAL ANALYSIS OF SELECT DISSENTS OF JUDGE STRAUB

   The dissents selected for this study, again, span from August 2006 to October 2011. However, the best approach to reveal jurisprudential trends is to examine the dissents Judge Straub wrote or joined by separating them into different legal categories, not necessarily by the area of law examined, but by the type of party sided with in the dissent. After going through all of the cases, I will then examine the repetitive trends found among the dissents, and attempt to find a common thread between them all. The cases are broken down by the type of...