From left, standing: Judges Michael Garcia, Eugene Fahey, Rowan Wilson and Paul Feinman. Sitting: Judge Jenny Garcia, Chief Judge Janet DiFiore and Judge Leslie Stein.
The bursts of discussion in the N Y Law Journal recently about the value of dissenting opinions and any appellate jurist’s right or passion to issue them seems to miss an essential consideration – institutional purpose. Their common theme and tenor concentrate on and elevate the tail to the greater importance of the dog. By that metaphor, I mean that the focus is skewed away from the tribunal’s majority ruling itself and the objective to chart and settle the law through a guiding precedent of the court, not through diffusion of multiple individual voices. None of the recent expressions pay sufficient heed and respect to that key contextual foundation stone, to wit, the raison d’etre of the particular appellate tribunal.
The latter consideration, I respectfully submit, should be front and center as a consideration to the discussion of the value of dissenting opinions. A threshold question to be internally posed is: would a particular additional opinion serve the development of the jurisprudence and how do different kinds and levels of dissenting opinions fit that higher purpose of appellate courts?
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
