Quality in Numbers? the Dynamics of Decision-Making in the Second Department

The utility of dissenting opinions has long been the subject of debate amongst the bench and bar. Proponents urge that the dissenting opinion safeguards the integrity of the judicial decision-making process, both keeping the majority accountable for the rationale and consequences of its decision, and by forcing the prevailing party to deal with the most difficult questions offered by its opponent. (1) Unlike the judge authoring the majority opinion, judge writing for unanimous court has the choice of selecting which of the losing side's arguments it wishes to refute, with the added luxury of framing the arguments in whatever manner he or she sees fit. (2) In contrast, critics of dissenting opinions argue that they create uncertainty as to the finality of opinions and the infallibility of the judges who author them. (3) For them, dissenting opinions are merely self-aggrandizing nullities, a sort of undesirable self-exploitation that often leave open legal issues that should otherwise be resolved conclusively. (4) Undoubtedly, dissenting opinions can serve useful role in sharpening the issues for the majority by forcing them to omit arguments most vulnerable to objections, while acknowledging important limitations on the scope of the holding. (5) This role is diminished where such opinions originate in the courts of last resort, due primarily to the well-established legal doctrine of stare decisis. (6) Thus, critics argue, the benefit of dissenting opinions disappears well before they are within the public domain because by then the majority has already had ample time to address the dissenter's arguments and account for them in their opinions. However, this argument carries less weight when applied to dissenting opinions arising out of intermediate appellate courts. To be sure, the usefulness of dissenting opinions as benchmark[s] against which the majority's reasoning can continue to be evaluated, (7) is an inescapable trait when such opinions arise out of an intermediate appellate court. Provided that the losing party chooses to appeal and the court of last resort decides to hear the appeal, the dissenting opinion is almost certain to become valuable tool to the high-court judges in formulating their own opinions of the case. Therefore, many of the criticisms that are directed at dissenting opinions, insofar as they relate to their utility for deciding future cases, are not applicable in the intermediate appellate courts. The following study examines the divided decisions of the New York State Appellate Division, Second Department (Second Department), over the ten-year period beginning January 1, 2000 and ending October 1, 2010. (8) In so doing, this paper seeks to impart practical and useful perspective to practitioners and academicians alike through the empirical analysis of the dissenting opinions of the Second Department. By focusing specifically on opinions that are later reversed by the Court of Appeals and, more specifically, dissenting opinions that are later vindicated by the Court, this study seeks to provide better perspective into the decision-making tendencies of the New York State appellate courts. It should be noted however, that this study does not purport to provide 100% accuracy in either its data or the analysis thereof. Indeed, in the time it would take to thoroughly and adequately analyze and dissect the tens of thousands of opinions required to accomplish such feat, it is entirely probable that the utility of such study would have all but disappeared--the judges having long since retired. For that reason, and for the reasons stated below, this study avoids characterizing the individual justices of the Second Department according to any preconceived judicial ideology (e.g., pro-plaintiff vs. pro-defendant). Part I of this paper provides an introduction to the Second Department, briefly outlining the bounds of its jurisdiction and the composition of its bench. …