Staying True to the Ideals of Fundamental Fairness: An Empirical Study of the Dissents of Judge Straub

I. INTRODUCTION Just as judge's background may reveal valuable insights into his or her decision-making process, glimpse at judge's opinions may reveal equally as much about 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 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 decision, it is logical to assume that justices will only dissent if they feel particularly strongly about the issue at hand.... [In other words] justice's pattern of dissent--his or her stream of tendency--reveals not only his or her tendency to vote 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 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 jurisprudential trend unique to Judge Straub. II. 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 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, 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 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 (8) During this time, Judge Straub also served as New York State Assemblyman, from 1967-1972, and as New York State Senator from 1973-1975. (9) He is currently 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 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) III. JUDGE STRAUB'S DISSENTS A. 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. …