Published Opinions

An opinion may be defined as a publicly stated, reasoned elaboration that justifies a conclusion or decision. Its purpose is to set forth an explanation for a decision that adjudicates a live case or controversy that has been presented before a court. To put it another way, a quality opinion will predict how similar factual scenarios will be treated. This explanatory function of the opinion is paramount. In the common law tradition, the court’s ability to develop case law finds legitimacy only because the decision is accompanied by a publicly recorded statement of reasoning available to all future readers.

It is important for a court to decide which cases merit published opinions and which do not. In regard to publication of opinions, Benjamin Cardozo in ‘The Nature of the Judicial Process’ distinguished three categories of cases.

The first category which forms the majority of cases is comprised of those cases which are obvious, clear and easy.

In these cases:

The law and its application alike are plain (and the cases) could not, with semblance of reason, be decided in any way but one. Such cases are predestined, so to speak, to affirmance without opinion.

To publish an opinion in such cases would contribute nothing new to the body of law or to the reader. These cases do not merit even a non-precedential opinion. Instead, a plain judgment order or citation to the court opinion in the appendix is sufficient.

Cardozo’s second categories of cases form a considerable percentage in court rulings. In such cases:

the rule of law is certain, and the application alone doubtful (in such cases) [a] complicated record must be dissected, the narratives of witnesses, more or less incoherent and unintelligible, must be analysed, to determine whether a given situation comes within one district or another upon the chart of rights and wrongs... Often these cases... provoke difference of opinion among judges. Jurisprudence remains untouched, however, regardless of the outcome.

In this second category a non-precedential opinion is legitimate. The rule of law is settled, and the only question is whether the facts come within the rule. Such fact-oriented opinions do not add to jurisprudence and thus do not require publication.

It is only in Cardozo’s third and final category where an opinion for publication should be written. The cases comprise of ‘(a) percentage, not large indeed, and yet not so small as to be negligible’, this are cases where:

A decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law. (These are the cases where) The creative element in the judicial process finds its opportunity and power.

From such cases, each modestly articulating a narrow rule, emerge the principles that form the backbone of a court’s jurisprudence and warrant the full-length, signed published opinions. Great lawyers know how to distinguish between these three categories.