Doing the Math on Dissenting Opinions
As a former appellate court clerk with a soft spot for dissenters, a new paper published by a University of Chicago Law program is of more than a little interest.
"Why (and When) Judges Dissent: A Theoretical and Empirical Analysis" (h/t How Appealing) gets a little "thinky" at times, combining judges' psychologies and guiding principles into a mathematical formula (seriously), but the conclusion is this: dissents come at a cost to their authors and to their corresponding majorities, both economic and personal. And, according to the authors (among whom is the venerable Judge Richard Posner, first-ballot Hall of Famer from the Seventh Circuit), the closer the personal relationships found at a given court, the less likely a judge is to take out his dissenting pen.
The chief illustration offered by the paper is the severance of the old Fifth Circuit. The writers found that when the humongous Fifth Circuit was divided into two smaller courts, the modern-day Fifth and Eleventh Circuits, the rate of dissents plummeted. At the time of the split, the Fifth Circuit generated a dissent once every 20 cases or so. Today, the Fifth and Eleventh Circuits combine for a dissent rate of less than one per 100.
It's certainly an interesting read if you're in appellate practice or, more generally, if you're just a nerd.
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