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

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) I. 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. II. 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. …