Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S. Supreme Court: Boon or Bane? (A Response to Professors Penrose and Sherry)

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices\u27 assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process. In this piece, I offer my thoughts in response to these proposals. I argue several reasons to doubt that a prohibition on publication of concurring and dissenting opinions (or a requirement that any publication of such opinions be separate in time and place from the Court\u27s opinion or naked decision) would result in the Court deciding more cases than it currently decides or would lead to more agreement among the Justices. I explain why I believe the concerns about ill effects of separate opinions are not empirically well grounded, and why concurrences and dissents have significant salutary effects that their critics do not sufficiently appreciate. My article also argues that Professor Sherry\u27s proposal, requiring action by Congress, would violate the First Amendment rights of the citizenry and the Justices, and would likely affect the processes by which the Court makes, as well as explains and justifies, its substantive decisions, thereby violating separation of powers. Professor Orentlicher\u27s proposal to require unanimous decisions would moot a number of the problems with Professor Penrose\u27s and Professor Sherry\u27s proposals. But the degree to which unanimous decisions would be attainable, and at what costs, remain very open questions. Open debates do far more for the Court\u27s legitimacy than purportedly univocal utterances and silenced disagreements (even if feasible) ever could do. Separate opinions demonstrate that the process of decision making is legitimate, and thereby both help to insulate the Court from political attacks and give hope to those who oppose particular results that those results someday may be reversed. Thus, the respectful airing of differing, even opposing, views is far more desirable than hiding Justices\u27 differences of opinions

Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts\u27 Resolving Issues in the First Instance

The article discusses the constitutionality and propriety of appellate courts of the U.S. that are the primary responders to take decisions regarding any filed lawsuits. It further discusses the shifting of focus to judicial discretion from power in the Supreme Court and in the federal intermediate appellate courts of the U.S. It informs about the division of function between trial and appellate courts on functional and institutional grounds

Crosscurrents: Supplemental Jurisdiction, Removal, and the ALI Revision Project

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367

Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts\u27 Resolving Issues in the First Instance

The article discusses the constitutionality and propriety of appellate courts of the U.S. that are the primary responders to take decisions regarding any filed lawsuits. It further discusses the shifting of focus to judicial discretion from power in the Supreme Court and in the federal intermediate appellate courts of the U.S. It informs about the division of function between trial and appellate courts on functional and institutional grounds

Removal, Remand, and Review in Pendent Claim and Pendent Party Cases

This Article examines the removability of civil actions that include either pendent claims or pendent parties joined in addition to parties against whom federal questions are alleged. It discusses the remandability of those civil actions or segments of them, and comments on the law governing appellate review of district court remands to state court.\u27 In an effort to reach the wisest resolutions of the various issues posed, it confronts issues of statutory construction, interprets Supreme Court cases, especially Thermtron Products, Inc. v. Hermansdorfer,\u27and wades in the murky waters of federalism. In the course of this enterprise, the Article analyzes and strongly takes issue with the recent decision of the Supreme Court in Carnegie-Mellon University v. Cohill. The implications of Carnegie-Mellon also are explored. The Article focuses on the problems that have arisen and can arise in federal question cases removable, if at all, under 28 U.S.C. sections 1441(a) and (b).\u27 It is noteworthy that these issues arise frequently, as evidenced by the number of pertinent decisions, and promise to continue to plague the federal courts in view of the substantial number of cases removed to federal court. The issues of removal jurisdiction, remandability, and reviewability tackled here are questions of federal court jurisdiction, powers, and discretion, that broadly implicate our federalism

Waiving Removal, Waiving Remand–The Hidden and Unequal Dangers of Participating in Litigation

The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of cases between state and federal courts. Moreover, it disadvantages plaintiffs for no good reason, and without providing adequate notice. The absence of statutory provisions governing conduct-based waivers raises the question whether courts unilaterally should be recognizing such waivers at all, as a matter of separation of powers, and if so, under what circumstances waiver should be found. This Article addresses those questions. It surveys the case law, and takes on the underlying policy questions. The doctrines that the courts have molded in these domains are not even close to even-handed. Under them, defendants are held to have waived their right to remove far less frequently than plaintiffs are held to have waived their right to remand. The need for litigants to clearly know in advance what conduct will constitute a waiver, the realities of litigation, and the policy reasons for equalizing treatment of the parties and bringing symmetry to the law, all argue for substantial changes in the common law, especially with respect to waiver of the right to remand. Because the courts are unlikely to change what they have been doing without a push from Congress, this Article proposes statutory language and advisory notes to indicate Congressional intent. Such additions to the law would illuminate the very existence of judge-made waiver doctrines concerning removal and the right to remand, and should spur the development of case law that will be more coherent, defensible, and fair than that which now exists. The proposed statute and advisory notes crystallize how the law of conduct-based waiver should be improved for the many lawyers and litigants who find themselves seeking to avoid a waiver and for the judges who must confront whether a waiver should be held to have occurred