Professor Dennis Crouch at Patently-O has authored an excellent article concerning the rise of Rule 36 Judgments issued by Federal Circuit Judges without an accompanying opinion. The thrust of the article is a federal statute (35 U.S.C. 144) legally requires such judges to issue an opinion and enter it into the record upon disposition of an appellate case.
I would reinforce Professor Crouch's position by further pointing out that lack of transparency in rules often leads to economic uncertainty, which has a chilling effect on investments. That is to say, if society could have a bright-line rule regarding what is legally permissible, and what is not, companies and individuals could proceed with certainty with what would otherwise be considered a questionable transaction or activity. Without that certainty, people and businesses may invariably shy away from engaging in many fully legal, mutually beneficial, wealth-generating transactions out of fear of future litigation. This behavior does not result in economic loss, but it does result in unrealized economic gain.
Also, an attorney's job is rendered much more difficult when the legislature doesn't offer any guidance on the issue at bar (in fact, it is often the case that the legislature created the dispute at issue by leaving ambiguities in the statute or not explaining what legal standard should be employed). When the disupute later comes up in court, the judiciary only issues a one word analysis of the case: "Affirmed." But why was the case affirmed? What factors were weighed in its determination? What standards, elements, or legal tests were employed? We don't know, because the judiciary didn't bother to issue an opinion explaining its ruling. Now trace this into the future. When a client visits an attorney and asks, "I was contemplating X, can I be sued for that?" the attorney's answer is must commensurately be "I don't know" (even though cases with similar facts may have gone on appeal hundreds of times). It seems that both branches of government have left us adrift without an answer.
One thing we do know, however, is that the members of Congress who passed the statute giving rise to the dispute which created the case at bar as well as the Judges on the Federal Circuit who "Affirmed" the case, without issuing an opinion -- they are each drawing a salary from the U.S. taxpayer. So while we don't get certainty in statute, nor do we get certainty in what legal tests were employed in an opinion of the case, there is one thing we can be certain of: Each of these federal employees are cashing their paychecks provided by the U.S. taxpayer -- you can take that one to the bank.
I would reinforce Professor Crouch's position by further pointing out that lack of transparency in rules often leads to economic uncertainty, which has a chilling effect on investments. That is to say, if society could have a bright-line rule regarding what is legally permissible, and what is not, companies and individuals could proceed with certainty with what would otherwise be considered a questionable transaction or activity. Without that certainty, people and businesses may invariably shy away from engaging in many fully legal, mutually beneficial, wealth-generating transactions out of fear of future litigation. This behavior does not result in economic loss, but it does result in unrealized economic gain.
Also, an attorney's job is rendered much more difficult when the legislature doesn't offer any guidance on the issue at bar (in fact, it is often the case that the legislature created the dispute at issue by leaving ambiguities in the statute or not explaining what legal standard should be employed). When the disupute later comes up in court, the judiciary only issues a one word analysis of the case: "Affirmed." But why was the case affirmed? What factors were weighed in its determination? What standards, elements, or legal tests were employed? We don't know, because the judiciary didn't bother to issue an opinion explaining its ruling. Now trace this into the future. When a client visits an attorney and asks, "I was contemplating X, can I be sued for that?" the attorney's answer is must commensurately be "I don't know" (even though cases with similar facts may have gone on appeal hundreds of times). It seems that both branches of government have left us adrift without an answer.
One thing we do know, however, is that the members of Congress who passed the statute giving rise to the dispute which created the case at bar as well as the Judges on the Federal Circuit who "Affirmed" the case, without issuing an opinion -- they are each drawing a salary from the U.S. taxpayer. So while we don't get certainty in statute, nor do we get certainty in what legal tests were employed in an opinion of the case, there is one thing we can be certain of: Each of these federal employees are cashing their paychecks provided by the U.S. taxpayer -- you can take that one to the bank.
RSS Feed