Affirmance Without Opinion

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1 Fordh w evie am L aw R | Volume 6 Issue 2 Article 3 1937 m a nce W ithout O pinion A ffir u li a r c p M s hi P Recomme nded Citation ordham , 6 F n io n pi t O ffi u o h it ce W n a m r ev L. R Philip M arcus, A . 212 (1937). Available at: http://ir ol6/iss2/3 .lawnet.fordham.edu/flr/v This Article is brought to you for f ree and ope n access by FLASH: The F en accepted for istory. It has be nd H cholarship a ordham Law Archive of S ordham Law Review by an author ASH: The F ized editor of FL ordham Law Archive of S inclusion in F mation, e infor istory. For mor nd H cholarship a aw.fordham.edu please contact [email protected] .

2 AFFIRMANCE WITHOUT OPINION MARCUSt PHILIP AN attorney p RICK may break and he into The print. genesis, but it is hoped, circumference not the an encounter this of paper, is of a phenomenon with writer the of appellate practice, phenomenon a which or another is an at time one almost every unwelcome visitor in office. law It is "affirmance without called, opinion." 1934 a of New In Surrogate was York called County upon to decide he power whether had trustee to permit a terms of the to modify a trust of under circumstances considerable to importance trustees attorneys and in York. The New decided by the case was Surrogate a briefly re- in ported opinion. appeal was An perfected to Appellate Division the the of First unanimously which Department opinion. affirmed without mo- A tion to to leave for appeal Appeals was made Court the of form the in petition of a which to out endeavored point and importance the novelty question involved. Leave of the was granted.' to appeal It seemed to the that a study writer this aspect of of procedure might appellate reveal that a problem there is deserves which here careful consideration. The results that are embodied of study in this paper. all judges That not equally are capable determining an of of issue law, if not fact, is a of assumption cardinal in our judicial system. Essentially, the theory of an appeal is that is some there or body persons person of better to decision render able a correct to tribunal which than the the litigants have first resorted. Thus, we hierarchy which a judicial have begins prius nisi with and various through ascends of appel- gradations to a court late curiae resort. last of Appellate courts generally enjoy reputation among attorneys a and laymen is difficult which a court first instance for of They acquire. to enjoy degree of insulation a larger exterior from deleterious pressure, political and otherwise. product of their The receives efforts pub- more in licity lay sheets as well as legal journals. Tribunals of first instance are generally the one-man affairs. The Court is one judge. He sits in one imbibes locality, sympathies local and antipathies. other the On hand, the appellate tribunal normally is several members; composed of most of them have to that gravitated bench by of a apprenticeship way judicial which have proved in they their ability. judge of superior One ability may often leaven an other- wise run-of-the-mill court. Time pressure, moreover, has less effect upon t Member the New York Bar. of Matter Irving 1. of Co., as Substituted Trustee, Trust of F. K. Agate, etc., 242 App. Div. 811, 275 N. Y. Supp. 630 Dep't 1934), leave to appeal (Ist granted, 243 App. Dlv. 520, 276 N. Y. Supp. 793 (1934).

3 1937] AFFIRMANCE OPINION 213 WITHOUT nisi prhi, of in the case a than appellate court an of deliberations the board, often, broker's counting a calendar resembles, whose judge daily customers. of hordes of margin place meeting a courtroom, whose to has been appellate court of the function then, the Traditionally, virtue of authority As chief oracle, be. by law should what the expound lower which of thought by furnished a pattern it prestige, and has refining process might guide themselves-a lawyers, and laymen courts, A serious the from gold. been separated dross has which judicial by the practice, com- come about through has function of that undermining opinion. decisions without affirming courts, of appellate in mon several 2 dis- without opinion, appeals are occasion, reversed Decisions, upon 4 3 more. But of certiorari denied without silentio, sub and writs missed any, if little, con- is the fact that there and the first, infrequency of the 5 little them give two the the in action other of of merits the sideration opinion. is affirmed without decision which the to as compared significance decision. a report of of a written knew little law common English Early bench might be remembered from the pronounced judgments Occasional the In last two were uncommon." judge. Opinions lawyer or some by be may opinion the recognized become that has however, it centuries, 7 the under a tendency, contrary But decision. the than important more 617, Y. N. 263 Cohen, v. (1859); Matter Beck of Cal. 24 Williams, v. 13 Houston 2. Reported OiAionrs, in see Slayton, Functional Indications (1935). N. 521 E. 198 And 1, REV. 11. 14 (1935) L. Tax. decisions numerous York Reports contains volume of contemporary New 3. Each the in certiorari of of an application for a writ in a denial the of "As case this of sort. prece- appeal decisive a not is a to leave of denial of States, the Court United Supreme E. N. Y. Co., 252 169 284, N. v. M1fg. Mead-Aforrison Mlarchant Matter dent." of 386 (1929). and in Illinois appel- United States Supreme Court to in the As of certiorari writs 4. 257. REv. 4 Gao. WAsH. L. practice, Comment (1936) see late an rendering without certiorari of appeals or deny writs dismiss It customary is to S. right of appeal, matter a as hear the not to court the asking is appellant The opinion. right tho to has and if the court question involved, decide to the not and necessarily it why reason strong no should first there the is instance, appeal hear to refuse in the its to give doing. reasons for so he required dis- a of conception different a for made might be argument here, Even an however, opinion dis- has said: "A written Court Tennessee Supreme of denial. The missal or Court of Appeals petition for certiorari to the the question presented through of posing of action the review to Denial of the writ of certiorari instance. every in necessary not is memorandum, esxplanatory some or opinion written without Appeals, of a Court the Beard Appeals." of the Court of the opinion of the Court in concurrence emphasizes the (1929). S. 14 W. (2d) 745, 747 437, Beard, 158 Tenn. 442, v. Houston v. Wil- L.w (1932) 234-23S; L,'moDucrnox To EGLISr 6. PorFR, HxsToPRcAL See urged. been has of use opinions oral (1359). frequent more The liams, 13 Cal. 24 316. REv. L. VA. 5 (1918) Reports of Law 2fidtiplication Thze Williams, made he always will and ought new from pursuits, principles of developments "New 7. itI:'t1i civilization progress and to value are of infinite to through reports. They public

4 [Vol. 6 FORDHAM LAW REVIEW of a phrase, "affirmed without opinion," has tended to guise colorless decision to oblivion of the opinion.8 exalt the the often for most The reason adduced an appeal is that this disposal of the pressure judicial duties makes of rendering of expediency. The of each appeal impractical, if opinion in Case crowds upon not impossible. by decision case should not be delayed a reason in The case. the of writing an opinion in necessity caseY of another is that the amount of appeals true by some courts It heard impres- is But this argument for the curtailing of written opinions is sive.' im- not Letzkus Butler, 69 Pa. 277, 281 (1871). The decision is the result of the court's v. The opinion the exposition of the court's reasons for arriving at deliberations. is affects Houston Williams, result. Cal. 24 (1859). The decision v. only the liti- that 13 or a limited gants, of persons whose interests are involved in the facts number the of particular The opinion may, and often does, affect the body politic at large. See case. Observations (1929) Judicial Opinions Higgins, 8 T"mx. L. Rxv. 19; cf. CARDozo, on (2d oF CoURT oF APPEALs THE ed. 1909) § 6. JUMSDirioN 8. Undoubtedly the purpose of almost every legal action is to get a decision in that particular case: would continue to resort persons the courts though they knew to even would rendered, as long as the opinion no be be forthcoming. But the decision would accompany this is that the opinion should paper the decision and that argument of opinion is often of far greater importance than the decision it the supports. 9. Radin, The Requirement of Written Opinions (1930) 18 CAL. L. REv. 486. See The available data in New York was made 10. to the writer through the following and of clerks of the respective Appellate Divisions courtesy in the case of the Court of the Appeals through the State Reporter. Court of Appeals: 195 cases with opinion. 1934: decided decided opinion. cases without 455 cases decided with 1935: 223 opinion. cases decided 461 without opinion. Rezzemini, Mr. State the has stated that there were approximately the same Reporter, number of in the three preceding appeals years. Appellate Division, First Department: Opinions in Disciplinary Year Decided Opinion Appeals Proceedings Appeals 1872 26 1931 323 1773 372 1932 24 1933 316 31 1830 1934 1764 366 74 1935 1724 228 26 Appellate Division, Department: Second Appeals Year Written Opinions 1931 1421 65 1932 1413 81 1933 1475 65 1934 1484 50 1935 1565 58

5 1937] AFFIRMANCE OPINION WITHOUT when analyzed. only in a very few states do decisions posing Seemingly, the appear fait accomplis, with the curt observation of "no reports in as all states are written in opinions reported many full opinion."" In of the states, whatever memorandum decisions." per curiam In most or express explanation of the some arrived at."C appear decisions result a fair supposition that other states than those It which the affirmance is in opinion common have a comparable number of appeals to deal without is 4 It fairly significant that so few of the states have resorted with.' is summary appeal. of an this And in an argument of num- disposition to is a strange bedfellow to New York. Alabama bers, courts of some states The stricken statutes which have required have written opinions, upon an of division of powers. Al- mainly argument other is as to whether courts of doubt states in which there some though of such statutes has not been tested would the a like re- validity reach 15 such odds heavily weighted against judicial sanction the are sult, of Appellate Division, Third Department: 1931-1935 handed down: 3714. Decisions Approximately 530. Opinions: Appellate Fourth Departinent: Division, 1932 1933 1935 1931 1934 appeals heard: of 561 546 48S 542 Number 496 number of opinions written during 1934 and 1935 were: The Total prevailing 62 81 opinions opinions 1 Concurring 1 opinions and memoranda 7 18 Dissenting Per opinions 6 22 curianm Per curiam memoranda 72 95 11. The writer has checked all the official state reports for the past five years and does not vouch the same is true as to prior years. But it is more than likely that such is that case. Alabama, York, and Wisconsin are in this category. Rule 49 of the the New opinion; Rules expressly provides for affirmance without Practice most of Alabama of decisions are such in the Alabama Court of Appeals reports. In Arkansas, some found are opinions omitted the reports by order of the court as having no value as from In Court reports of the Illinois Appellate precedents. some of the reported decisions the the give nature of the action but state merely date of the opinion. In Tennessee, the under a rule of the Court of Appeals, only the opinions of cases in which writs of certiorari are without written opinion or explanatory memorandum are published. denied preface to 14 of the Tennessee volume See The Tennessee Supreme Reports. Appellate decides which opinions are to be Court See Rule No. 31, 167 Tenn. 702 (1933). published. 12. Hawaii, Idaho, Illinois Colorado, Court), Iowa, Kansas, Louisiana, (Supreme Massachusetts, Michigan, New Mexico, Rhode Island, South Dakota, Utah, West Virginia. 13. Connecticut, District of Columbia, Florida, Mfaryland, Pennsylwania. In Delaware, official headnote opinions are often resorted to. Georgia, 14. California, Florida, and Illinois compare with New York in this respect, at as least to the New York Court of Appeals. 15. See Gertner, The Inhterent Power of Courts to Make Rules (1936) 10 U. Cnz. L. REv. 32.

6 6 [Vol. REVIEW FORDHAM LAW 6 of many states have thought But legislation. people the legislatures and given by the appellate courts. be in that important opinions it decisions states have called a of by large and statute, number By constitution 1 opinions.' render to courts appellate their upon example of the a prime has used New York State as Professor Radin 18 Writ- opinions. the work disuse of written by expedition appellate of be appeals can heard Department states the in First he 1930, in ing that two in California the time is from one to whereas a within few months, York Appellate in the New work figures of the to the Reverting years. the the Appellate Division of 1936,19 preceding five the for Courts years other three Divi- of the than appeals more had any First Department less than twice had considerably department although But that sions. had, it rendered Department appeals than the of Second number the opinions annually. Upon Mr. Radin's four times as many more than the other depart- Department should far behind First be the argument said, has appeals are himself the of appeals, but, hearing as he in ments within a month or two. In fact, in all the de- department heard in that for term which they are in the are normally heard appeals partments 20 noticed. New in York lies in well recognized that the jam in litigation It is Constlit- Void are Procedure Judiciary Wigmore, Legislative All See 16. for Rules supra. Gertner, Note 15 L. 276; tionally (1928) 23 ILL. REV. ANN. CooM VI, Cow. CoNs. art. (Court- § 2; CAux. 2; VI, art. CONST. 17. ARz. § & Strozier, 1936) 6-1606; (Park, AN. Skillman GA. CODE right-Mills, 1933) § 475; GEN. 5; 37, §§ 21, 41; c. CoNsT. art. VII, § KXm. IND. (Smith-Hurd, 1935) AsN,. STAT. ILL. art. VII, §§ 1, 6; MD. CoNss. (1935) §§ 20-111, 20-112, 60-3328; LA. ArNN. CONST. STAT. LAWS (1929) § 13556; Mo. Micn. § MicH. Commi. 15; CONST. art. VII, § 7, art. IV, §§ 1067, 1068; N-v. CONST. art. XV, § 8, VI, Mo. REv. STAT.'(1929) art. § CoisT. 15, c. D. H. PUB. LAws (1926) N. 315, § 13; N. (Hillyer, 8381; 1929) Coan'. NEv. LAws § (Page, 1926) [cf. IV, § 6 CONsT. Onto ANN. CoDE art. OnHo 7343; Co:n'. LAws (1913) § 1931) 13557; § § 5, OKLA. STAT. ANN. (Harlow,) art. VII, OxrA. 14841; 1483, §§ CONST. WAsH. 25; § VIII, S. C. CONST. art. V, § 8; UTA CONS?. art. 7; ORE. VII art. CON ST. § 5. VIII, § Co Nsr. art. § VA. W. CoNsT. art. IV, 2; limits the of implication that written opinions or required, are an there states In some is (Williams, [TEN. CODE ANN. 1934) §§ In expressly stated. are discretion Tennessee no is there defense. where all cases except in required opinions written 99241, 1334, are c. CoD 1-205; MASS. GEN. LAWS (1932) § 211, §§ 8, 9; Miss. IDAHo see CODE And (1932) N. 1416. (1929) § 27-208; STAT. C. CODE (1935) § Coin'. 3379; (1930) § NE. note supra. Radin, 18. See 9, 10, supra. 19. See note New in York keep their calen- Appellate Divisions the the four Departments All 20. of JusrIon or TRAmIox ADm TE IN CommnssoN ON or RPORT See. date. to up ,dars ax or Juoix-nAL COUNCIL or THE STATE or NEIW YOtic STAM REPORT (1934), NEW YORK and Departments of the First and Second consist of seven Divisions Appellate 18. (1936) The Divisions Appellate five sit on any one case. The other of judges respectively; a maximum when judges Additional judges may be assigned to an each. Division Appellate five ,have necessary. of business .the such augmentation pressure makes

7 19371 AFFIRMANCE OPINION WITHOUT the courts of instance. first in Yet courts those most decisions are un- adorned with opinions. The work legal of secretaries, most whom of are honor graduates of law schools, in easing the burdens preparing of opinions, should not be overlooked. is essential It remember to that an opinion by is means no necessarily an essay legal in jurisprudence, although a well-written opinion is some- 21 thing to be cherished. The length judicial of opinions has been fre- 22 quently condemned, and memorandum opinions might well be more frequently employed. Unquestionably it is burdensome for a judge to have write to full length opinions upon each case appealed to court, the but extra the time space and would be infinitesimal the if when court not desirous writing of a comprehensive opinion would affirm because: "we think there was a proper question for jury"; the "the doctrine of ipse res loquitur"; "the exceptions disclose no prejudicial in error the rulings of the trial court"; "affirmed authority upon of .. .";2 "affirmed upon '2 4 opinion below." comprehensive A statement of appears fact the in decisions of the Court of Appeals which are reported without opinion. It would seem too not much to ask to have a brief resum6 of the reasons for decisions the appended thereto. reports The of Appellate the Divi- sions in New York of cases decided without opinion often omit even a statement of the facts. in But least at one department an attempt has been made to cut down the court's labors without extirpating the opinion.'5 21. The reputation and veneration earned our by great judges rest largely upon their written opinions and not their upon decisions. 22. Kingsley, The Length Judicial of Opinions (1932) 10 L. NEB. BuL.. 393; Leach, The Length of Jvdial Opinions 21 (1911) YArx L. J. 141; Winslow, The and Courts the Paper .fills (1915) IL.. 10 R L. 157; v. The Output of the Courts (1915) Doc=rr 2 1443; of Report the Sped Committee on Reports and Digests (1916) . 2 B. 618; A. J. Frank- furter Landis, and The Judciary Act 1925 of (1928) 42 HAv. L. Rav. 14. 1, The of causes wordy opinions are many. See Slayton, note 2, supra. Ironically enough dictation to a stenographer is often most blamed. 23. Court's The own rules in states some so provide. Rule See VIII in Preface to 130 Ohio Reports State (1935). 24. These and other instances of succinct memoranda opinions have been employed by many in courts United the States. The Appellate Divisions New in York sometimes state their reasons for decision a in a few short sentences end but statement the with the observation of opinion." "no This practice may be applauded even though accuracy the of the court's appellation of its own efforts be doubted. Mr. 25. Herrick, Clerk Appellate of the Division, Department, Third in a to letter the writer stated that the court adopted a form of decision, several years ago, which to a large extent eliminated writing the of lengthy opinions. A sample decision follows: In the Matter of the Claim P~Acr- of DoDD, Respondent, V. THE ATLANTIc GPm4T AND PAcIIC CoPANY T&- AD A-zornu, Appelarlns.

8 6 [Vol. FORDHAM LAW REVIEW take "We announce to occasion this referred that causes in to the Commis- Appeals, of sion of our approval the recommended judgment Commis- the by sion to having is as understood be further than no effect adopt the simply to of view the Commission the determination as to made be to the cause. of is It not to be construed as approval by the an Supreme Court of the of opinion the Commission the particular case, in reasons the or given the Commission's in 20 conclusion.1 its for opinion the This is attitude practically by taken of the all appellate courts 2 7 adopted have which use the the of without affirmance opinion. What, then, is the effect of an opinion? without affirmance only are attor- Not STATE BoARD, Respondent. Iusmix by This is an appeal insurance and employer the from decision the carrier the of State Board. Industrial The claimant the by was employed Great Atlantic & Pacific Tea Company as a is store manager. There as raised question to no either claimed, disability the the disability, of period such award. of amount the or the an was As he employee a member the of system employer's benefit paid and standing in good 75c a month which entitled week in to $10.00 him per to case of disability, this amount the added company $30.00 week so that he a week was paid $40.00 a by company the during his disability. This was employees belonging to paid all association to the In good were sick standing who whether to regard without an had suffered they or accident industrial not. The claimant filed a claim for awards two and compensation were made, a check for $50.00 covering a weeks two and check covering for $250.00 ten The weeks. check for $50.00 was claimant who sent to the check it, $250.00 cashed the for was the employer sent to the claimant who induced it to them. They endorse to also the claimant required them to the return to $50.00, check the representing which had he cashed, claimant the so that none the compensation of received had which awarded to him, been it the employer received all. employer The any made never claim the under Section 25 of Compensation Law payment for advance of paid sums compensation or for wages. The employer as a demand having failed to file provided as for reimbursement in Section 25 was not entitled reimbursement. to unanimously and Decision award costs with affirmed the to Industrial State Board. Present-HILL, McNAsEE, P.J., RnoDs, and CpAPSER HE'T J. xAN, 26. v, Withers, McKenzie S. 206 109 Tex. 255, W. 1934 Since (1918). 503 addition an rules to the court Court the of Supreme of opinions "All Texas provides: the Commis- of sion of Appeals, Court, will accepted by the by adopted . . . be the Court." Supreme Preface to Texas 123 Reports (1934). & 27. W. Chicago N. v. of Supervisors, Ry. Board 60, 182 W. 390 165 Iowa N. (1917); O'Hara v. Lamb App Coast. 200 Mo. Co., 253 W. 292, 206 S. (1918); In re Basset's Will, Misc. 84 N. Y. Supp. 842 (Surr, 656, 146 v. New Ct. 1914); Vierteis & W. York, 0. Ry., App. 182 Y. Supp. 92, 169 N. Div. 1918); (1st 497 Dep't & Co. S. Scott, W. Scott v. 186 Div. App. 518, 174 N. Y. Supp. 583 1919); (1st Dep't Erie v. Ry., R.R. International 209 Div. N. 380, App. 204 (4th Supp. Y. Dep't 771 1924) opinion, without af'd 239 Y. N. E. 598, (1924); 147 N. 211 Brush's Estate, re In 154 Misc. 480, 277 Supp. N. Y. 559 Ct. Stephens (Surr. 1935); Mid-Kansas County Gas Oil v. & Tex. 254 S. 113 Co., 160, W. 290 (1923); Duckworth Thompson, S. W. (2d) v. 22 Civ. App. 1929). 528 (Tex.

9 1937] AFFIRMANCE OPINION WITHOUT uncertain what affirmance of a lower court decision "ithout neys the they do courts themselves admit the but frequently imports, opinion" or fowl. The following such decisions as fish whether to know not regard court of the parental embarrassment relief bold into the quotations bring which some one has illegitimate offspring an with confronted when blessing: fatherly a proffered for opinion, a state to seems contrary which hold this find I do only "One case in in 173 N. Y. York, 67 App. Div. 90, affirmed New Haven and that is v. not opinion does mean without court by Affirmance opinion. this 611, without Ap- The below the entirety. court its in have of opinion the adopted we that was plaintiff the by payment held that only not case that the Division in pellate not was judge illegal. One that assessment the voluntary, but it also found affirmed upon the may very well have the court in result. This concurred 28 latter reason." years A few know. does not court Evidently the have. not And may the court says: later same parties adverse the by Term General former cited are decisions "Two the in was one of determination actual the although in are They but, conflict, at bar. applied be to neither controls the rule court, by opinion this without affirmed 63 Hun, af- v. Pearl, 553, Mordecai 40 Hun, 370; Mills, by (Crummey us. v. either of argument the reject free to accept or We are Y. 136 625.) firmed N. 9 opinion."' by problem met Iowa saying: the Court of The Supreme affirm the necessarily court does not below this the judgment affirming "In and the we that fact came court conclusion, its to trial argument by the which an as construed be to opinion former our in not is the did not same mention to say we have respect, in that misapprehension avoid to But approval. 30 ... that. . find that: we in Georgia And R. case Williams v. W. & A. of involved in question was the identical "The to filed court this in was certiorari and 750, for petition a Ga. Co., 24 App. exam- careful After the Court Appeals. by of rendered the judgment review opinion the of then this court was question, of the consideration ination and Co. v. R. citing the case of American the Court decision Appeals, by of the that how- the question. There were, better view of the supra, Coronas, presented was taken. contrary in which a view above, decisions shown we ever, have as has court certified that Court Appeals, of the coming before same The question reached have we question, the of consideration further on and, court; it to this reasoning. better the we think, which sustained by is conclusion, a different (1923). 44, N. Y. 29, 250 N. E. 732, 737 164 v. Nev York, Corp. Adrico Realty 28. (1932). 464, E. N. 181 245, 241, 466 N. Y. Schatzli, v. Joseph 259 29. 60, 390 W. N. (1917). 165 Iowa 182 of Supervisors, W. Ry. v. Board & Chicago N. 30.

10 6 [Vol. REVIEW FORDHAM LAW of a of certiorari by the Supreme "The denial writ binding as is Court not another in precedent a within the doctrine of stare case, not and come does Civil in ,,31 provided Code as decisis the .. sad upon Such remarks are a commentary them make which courts the sanctions and the judicial system which Moreover, their utterance. there an is unavoidable without will be affirmed opinion case a that danger as by some used court other point a meant to be precedent for a not 3 2 decided. of many affirmance In ways, instead without appeal an of opinion, courts, often lessening will the of work the burden. increase their When, a case is cited which was in without opinion as a later appeal, affirmed in instant appeal, the judges almost in- authority the for a proposition only one not read variably must or more to decide the record but two and to ascertain what the case before them for. And case prior stood if in is appeal the the heard same decision, prior the rendered which court opinion when the later the court writes an in say what case it will often 8 in former case: meant 3 it to decide the forceful reason advanced against regarding "The most usual and unre- cases ported is that it is not always possible to ascertain as judicial authority legal proposition the exact It decided. and with good and is involved urged, that several cases, errors have been where reason, in such the and assigned, state the point on which the decision rests, the uncertainty court does not is such the case as commanding authority. to as destroy Gardner the However, in Case, wholly beyond supra, it is question involved in the instant case that dispute the decided by the Court. The point made by the receivers in that case, was there on and predicated their motion to dismiss, was that under the which they statute Seaboard Ry. v. Brooks, 151 Ga. 625, 631, 107 S. Air 31. Line (1921). 878, E. 881 of the courts not to take a decision affirmed 32. constant caveat *The without opinion face that the judiciary is well its of this danger. The scant number aware value suggests at New opinion in of decisions in York number no-opinion decisions, the to comparison of 10) compels some use of such ambiguous cases as precedents. (see supra, n. Compare, other the on New position lower court in Haggerty v. the York, of hand, the strange 153 N. Y. Supp. 722 (Mun. Ct. 1934), rev'd, 267 N. Y. 252, 196 N. Misc. 841, 276 45 E. (1935) which interpreted the without not decisive of as question affirmed opinion a decision before it, only Court of Appeals say otherwise. the have to New York this practice appears to be fairly 33. In Adrico See Corp. common. Realty York, v. Y. 29, 164 N. E. 732 (1928); Cherrington 250 New N. App. Div. Burchell, v. 147 re Supp. (2d 16, 1911); In 631 Basset's Y. N. 131 Dep't 656, 146 N. Y. Will, 84 Misc. Ct. (Surr. 1914) Supp. 842 Brush's Estate, 154 Misc. 480, 277 N. Y. Supp. ; (Surr. In re 559 1935). Ct. gone through courts same process.. Other have the N. W. Ry. v. Board Chicago & of 182 Supervisors, Iowa N. 60, (1917); O'Hara v. Lamb Const. Co., 200 Mo. W. 165 390 S. 253 206 App. 292, W. N. Denton, Ohio v. 333, 116 "95 E. 452 Thompson (1918); St. Indemnity Co. (1917); Austin, 112 American v. 239, S. W. 1019 (1922) (where Tex. 246 had cases); reexamine two prior court Duckworth v. Thompson, the to W. (2d) 528 22 S. (Tex. Civ. App. 1929).

11 1937] AFFIRMA WITHOUT OPINION NCE regulating the of then jurisdiction court the was wholly with- that circuit body out the since jurisdiction, from order which was appeal was had not final a action The order. the of in overruling court motion to the and dismiss pro- in ceeding its the to hear case on merits necessarily sanctioned there practice the and invoked, the Supreme Court... necessarily decision full that its to gave commendation. Under such circumstances, the Supreme the of decision Court 34 influence." without wholly being as aside be brushed cannot reductio The absurdum is ad be to Texas a found, perhaps, in case: "On Millers' May 10, 1922, in Underwriters Indemnity Hayes, v. 240 S. W. 904 (an opinion unadopted of the of Commission held Appeals) it was that under Section 12 d of C. Article 8306, R. S., Accident, Industrial the Board had jurisdiction to mistake or fraud review for denying its orders as those well as compensation. of awarding June On v. Cooper in 1930, 25, Co., S. G. U. & F. 29 W. S. (2d) 973 (also an unadopted of opinion commission), it was the held that section applied where d 12 only has the board previously award made an allowing and compensation, has no application in whatever to cases which the has made an board award refusing compensation. No reference, however, was the Hayes made to case. "December 20, 1930 days (two in award after the case), motion for this rehearing the was overruled in Commission the case, Cooper handing down an unadopted S. opinion (33 (2d) 189, W. 190) we from quote: which 'An the opinion of examination the Hayes case in convinces us that holding our in case instant the in conflict therewith; is fact, while the original in in opinion case was this pending Supreme before the before Court, and had they adopted judgment the recommended therein, had we our attention called the to Hayes and in case, the turn, called attention of the'Supreme In thereto. Court this condition of have the record we the consulted with Supreme and Court they informed have us the entered they that recommended judgment by us in our in this opinion original case, with the opinion Hayes in the case them, before the with and the at full time, realization the that in holding the case instant has overruling the effect of the Also Supreme Hayes case. the have Court in- formed us the that . . . construction on 12 placed section article of d 8306, supra, in our original opinion case is correct, in this the that and construction thereon placed in the Case is erroneous Hayes should and overruled. be We still adhere therefore holding the in to our expressly opinion, original and ' the overrule holding the Hayes in Case. " The case just help quoted from cannot suspicious but one make the of time-saving the qualities of without decision affirmed In opinion. New York, the moreover, is it belief that writer's motion made many a the in Appellate in the Court Division or Appeals for leave to of from appeal an unanimous affirmance of court decision a lower genesis its has the in 0 fact that no reasons for have been given affirmance. the 34. Thompson v. Denton, 95 Ohio 333, 339, 116 N. E. St. 454 452, (1917). Casparis v. 35. Fidelity Co., S. Cas. 65 Union W. 405 (Tex. Civ. (2d) 404, App. 1933). 36. appellate Every sees a considerable term number of such motions which require

12 [Vol. 6 FORDHAM LAW REVIEW has been It suggested practice of without opinion that the affirming should since would restrict the giving of be the encouraged courts opin- 7 of novelty. or This argument cases importance ions to tinkles pleasant- 8 But ly. an approach the unfortunate. results It of such are is un- that courts fortunately true quite the adopted affirmance which have without disposing of opinion appeal have sometimes method of an shown as to the questions little discrimination thus are dis- which summarily posed Thus, a provision of its Compensation Act was in of. Texas, con- the by lower appellate courts and in opposite strued ways Court Supreme adopted not until the Commission of Appeals, both decisions; in per- an plexity, advanced the inquiry did the latter actually Court Supreme to 9 upon state the which it stood. side In Ohio, a case involving of fence questions important procedure and jurisdiction of affirmed without is 4 ° opinion be later in extenso. to In New York we only discussed find case application of criminal sanctions to picketing involving a the affirmed without opinion, although the case was non-labor in disputes less time for disposition. A study of more motion docket of or the Supreme of the Court rehearing 1886 that about one-third of the for for revealed and relating Texas motions pertained to dispositions unreported motions the original hearing. on Stayton, note See 2, supra. See Radin, 9, supra. This 37. note been into statutory enactment has translated feeling few states. See note 17, in a supra. courts asserted that this have what they do. Some is Chief The of the Supreme Court Justice of in 1915 enumerated four instances Wisconsin opinions notel be omitted (see Winslow, where might supra): 22, Where only questions of 1. are involved. fact 2. Where the case is determined by legal principles well settled by prior decisions in the court. same 3. Where is one practice or procedure unless the court thinks It the question of of such for administration of the the proper importance require an authoritative as law to pronouncement. no opinions 4. Generally case where of such importance as to require treatment except is opinion. an in the first two examples, to As the submitted a statement that is appeal is decided it that its facts or by reason of on prior designated authority would a be opinion neither an to the nor unhelpful to litigant and attorney. The burdensome court the in other danger instances is adverted to in two Winslow's own comment mentioned Judge the effi- that of this practice ciency depend upon the personal views of the judges. would 38. one time there appears to have At a among been several courts to select tendency opinions should be published. This what practice was severely censured. See Report of the Special on Reports and Committee (1916) 2 618; Comment, The Welter Digests A.B.A.J. and and Opinions (1920) 90 Reports L. J. 316; Court it has been of CENT. "Ex- said: periments this line along been made, and have failed in so many states that have this must plan be rejected." The Output of the surely (1915) 2 Docat 1443. Courts The weakness of this system in England has been expressed in the remarks of Lord Summer in Palgrave 413, & v. S.S. Turid, [1922] 1 A. C. Brown Son and in Comment 397, (1935) 51 L. Q. Rxv. 422 on Tate & Lyle v. Hain S.S. Co. 39 Com. Cas. 259 (C. A. 1934). 39. v. Fidelity Union Cas. Co., 65 S. W. Casparis (2d) 404 (Tex. Civ. App. 1933). St. 40. v Denton, 95 Ohio Thompson 333, 116 N. E. 452 (1917).

13 1937] AFFIRMANCER OPINION WITHOUT important considered be noted in the Columbia Law Re- enough to 1 a will, a question clause of effect an in terrorem the in view. So, in the United States, is decided views are which there about several a Green's Estate," re is In of The same true opinion.' without recent comparatively a under the a of involving right widow case examples Law. And other may Estate to amendment the Decedent allot- courts the of moreover, considerable is There danger, cited." be without which is affirmed opinion appeal to ting perfunctory an attention York New In absent. is rationale expressing in care the as a inasmuch the of Appeals extricating itself with difficulty from Court find we the 4 case without opinion: decided prior implications a of 217 Lasky v. State of New York, 126 Misc. 360; Id., cites "The respondent as cases proposition that in such for the 246 N. Y. 569, Id., App. 420; Div. (2) lienor, the surety, and the of should be to (1) the order payment this case. that in the order In adopted was Undoubtedly assignee. (3) the that cer- opinion, we without an affirmance the decision to by approval our giving contrary the to authority overwhelming of face in intend not tainly the did priority of order the stated order was the that countenance proposition to the the intend the of reasoning to adopt Nor be we did to generally observed. the lien a lienor have priority over an assignee, though that Term, Special must because the assignee may subsequently the to assignment, the filing of filed is where filed the assignor-contractor, and latter may, take more than the no The liens. the argu- nothing the excess over take except are outstanding, liens if and assignees have claims of a nature, to fails lienors recognize ment that least quite at similar." identical, not in the court in Georgia of the quotation protestations despite Again, the 4 6 less is justifiable suspicion that there something a heretofore recited, its involved was afforded the question upon "careful consideration" than the court. to prior trip 36 Cor.. L. RLV. 41. 565, 195 N. E. 202 (1935); (1936) People v. Kop.zak, 266 N. Y. 153. N. Y. Supp. 559 (Surr. Ct. 1935), aff'd re Brush's Estate, 154 Misc. 480, 277 42. In Supp. N. 760, 287 Y. Div. 151 (2d Dep't 1936). App. opinion, without 24*7 (Surr. Ct. Y. Supp. 692 N. 1935), af'd without opirion 246 155 280 Mlisc. 43. 641, 155. RLv. L. Co.. 36 (1936) 370 (1st 1935); Supp. Y. N. 284 583, Div. App. Dep't 193 N. E. 376 (1935), Y. N. Co. 504, Ins. Life Asba Corp., 268 v. E.g., Aetena 44. in New Yorh (1935) 35 Cor.. upon Collection of Money Judgments commented in Cohen, 343, BRoo.LYx L. Rr~v. 345, a note writer criticizing 3 1196, In (1934) REV. L. 1212. App. Div. v. Trask, 238 Co. 663, 266 N. Y. Supp. Casualty Mutual American Lumberman's Appeals of 1933) said: "It is dangerous in the sense that should the Court Dep't (3d 1 confused." The case was on this point will be hopelessy without opinion, the law affirm 191 in 264 N. Y. 545, opinion N. E. 557 (1934). without affirmed 518 5S, E. N. (1932). 183 N. Y. 330, 341-342, 260 v. Works Iron Aaron 45. Greene, (1921), 881 107 Ry. v. Brooks, 151 Ga. 625, 631, 878, S. E. Air 46. Line Seaboard note 31 s=pra.

14 6 [Vol. REVIEW FORDHAM LAW courts If the Appellate Division in New York were the consistent leave never to the Court of Appeals after would to grant appeal affirming Such not often given but unanimously without permission opinion. is granted such term. The theory upon which are a few such motions each or that involved is so novel question impor- is granted is permission the of authority in such conflict, that a court of last resort tant, or the state When should permission is granted, it is decide the question. such in the instance did not think the first that court the strange impor- case an opinion. tant enough to write main, opinion some, if not the is assurance rendering an of The pos- litigant that his appeal has received fair consideration at sessed by a the the Appellate courts are not wont to abuse their hands of court. powers, 4 7 appeals opinion, are or affirmed without but without when reversed 4 8 decision unanimous even not or the opinion even though is more the in whole opinion by the usual coqrt, the possi- case affirmance without of is present. Treatment of an appeal in this manner bility of abuse is un- to and to his attorney who prosecutes the appeal. In fair litigant the the appeal because an attorney believes taken case an is most instances Moreover, the reason for the was might erroneously decided. affirmance that defeated litigant, if the reasons the given, might feel such be were remedying the defect in his case that might get his just desserts in by he action; perhaps he would refrain from the cost and trouble another or, another of the reasons given were such as to preclude action bringing if 49 of hope recovery. passed. also, age of transition has the New has that been It argued, wane. And the argument is situations to the con- are on the pressed 0 less necessary.5 are It correspondingly difficult opinions that clusion is such an apology can have been made to A depres- believe that seriously. along sion comes expected. not thousands of legal wanted, With not it, shadows the courts. The defaulting mort- their cast problems across debtor, gagor, uneasy creditor become familiar the hard-pressed the abnormal beget abnormal problems. The times figures. And legislative operating mills grist countless statutes which the courts yearly produce upon are interpret. A static social economy is still unknown. called to note 47. 2 See supra. Penn. Bibbo 48. v. 525 268 Y. 626, 198 Life E. N. (1935); Matter Co., Mutual Ins. N. Harlem Funeral of Co., 268 N. Y. 661, 198 N. E. 545 (1935) (a 4 to 3 de- Roth v. Car cision). if a landlord sues a 49. the same fact situation might be true of many Thus, tenant, his tenants. When the decision is handed down without an opinion, his attorney of other against a when the in asks him if he can do anything quandary the other is landlord tenants. 50. See Radin, note 9 supra.

15 19371 AFFIRMANCE OPINION WITHOUT fact that the world of tomorrow will al- courts The blind to the are not 0 have not been decided by the past. which its problems ways have the mass production of reports made: has been another Still point for law, attorney to keep abreast of the difficult the makes it increasingly 2 mind. In he first place, in has the particular to for look the precedent the enhance unduly asserted, not heretofore been has need as the opinion, has today of is submitted that the lawyer it Again, of bulk the reports. that in textbooks, mass other devices digests, the and cuts short many so accuracy and facility great if not greater as of usable material is with time than past. any in at the without opinion about of affirmance Another aspect of the propriety its to largely subjective, only a proximate guess as is which, since it the intermediate appellate the reaction of may be made, is significance resort courts of last of affirming without opinion. It to the courts practice the decision of intermediate the affirming of the that appear effect would it to up gone never had if the than to less it give is court effect appellate the which stops with court. intermediate appellate The appeal highest But it. sanction of the court which renders untarnished the court has that affirmed is without opinion, higher court to the up and it goes when the the opinion of approve intermediate to refused deliberately court has 3 interme- of the judges of the psychological reactions to the As court5 affirmed value because opinion no has that this told when court diate to not generally available hazard a dog- is the evidence without opinion Texas, In in at least one state the proof is present. but statement, matic views on its effect of the adop- the in 1918 expressed the Supreme Court 4 lower the of judgmentY the The reactions court's lower by tion it for almost body emanating annually from the press in this country is of reports S1. "The to my mind brought to a remark by recurring forcibly A with this is illimitable. contrast Speaking I do not remember. of the Year Books, the whom writer, name of an of old publications discontinued were in that when these said semi-official reports, were which he had decisions was because it it thought enough of reports was VIII, of reign Henry the which might ari-e law of the kingdom for been possible cases published to establish the all v. (1871). 281 277, Pa. 69 Letzkus Butler, future. indeed." this, mistake great A in the most the still and first of the American Law Institute, the director position own My as " testimony ample is is the Restatement of our Common Law, which important of work continue to conditions we shall social and place in a judiciary present that under economic developing and authority of precedent the task large stating of the to trained recognize system is greatly important to our of the and, law therefore, that the of fields efficiency Stat- of Systen Judicial Our of Future Lewis, progress." orderly and being The well 264. 259. REv. L. VA. 23 Developing and (1937) ing Law "The same vein the Court in Letzkus v. Butler, 69 Pa. 277, 281 (1871) said: the In 52. the diminishing of law, in be a relief to the of Assembly will also professors Act new buy." of of reports they must annually number volume See notes 26, 27 53. supra. 255, (1918). 503 109 Tea%. W. 206 S. McKenzie Withers, v. 54.

16 FORDHAM 6 [Vol. REVIEW LAW judiciary had somewhat of a Gilbert and Sullivan flavor. in have Texas 1919 In one of of the judges Court Texas the Appeals Civil of bravely asserts: "It that is in true the same volume and page same on the Supreme Court the in that case declines and disowns as even stand to to it or godfather any of the offspring of the of Commission Appeals, simply it that consenting shall and live enrolled on the be register. parish Believing, however, to it be a vigorous offshoot with striking a family to resemblance Rosen-Trammell and Hermann-Allen, supra, hereby adopt I it, and will, as far thereby can, I as 55 remove sinister." the bar And 1924, in the same court to refused believe that the Supreme Court what it meant had said: not do "We believe the Supreme Court intended in quotation the above to conclusion that no hold the by Commission, essential however, to judg- the ment recommended authority is merely because Supreme the Court adopted only the judgment. holding Such the would render Commission the opinions of of such value as doubtful warrant to hardly publication their Southwestern the in We Reports. to prefer think, by expressed as the Supreme Court re- upon hearing S. W. 601) (255 v. in Texas Co. Davis decided the the same as day County Stephens Case, their that conclusion accurately not is expressed the in quoted the of portion opinion, was prepared which stress the under the of 56 closing days of last term." The value of intermediate an arrival the opinion in a reasoned de- of cision by the court appellate highest is .well recognized." If appellate to are courts continue without to affirm will opinion, they necessarily have sight lost their principal of which purpose vividly was defined Mr. Justice by discussing in Cardozo the theory Court of the of Knight 55. 214 Waggoner, v. (Tex. Civ. S. W. 690, 699 App. 1919). North 56. United and Meredith, v. South Oil Co. S, W. 550, 556 258 Civ. App. (Tex. 1924). Court Supreme "The 57. is equally dependent with upon the thoroughness which issues sifted are and reach before explored they this the In Court. below the process opinions important an play compel role. They analysis and formulation in a contro- issues the of versy, sharpen responsibility in adjudication, and advise litigants court and appellate the of the that factors control decisions. Only by is such a process the adequately controversy focussed for the consideration Supreme of the Court. by lower Opinions the courts are indispensable therefore adequate the for exercise by Supreme the Court of its reviewing function. Without them, as the Supreme has remarked Court appellate 'the . . . , court is denied an important consideration in aid the case; of the defeated the and Is party often determine to unable whether case the worthy a presents question consideration of by the appellate court. the Thus, both litigants this are and court unneces- subjected to sary labor'." Frankfurter and The Landis, Judiciary Act of 1925 (1928) Rv. 42 HxAv. L. 23-24. 1, People ex. rel. Rogers Cf. 57 Sup. v. Graves, 269 (1937), which Ct. in the Court Supreme reversed a decision of the Court of New York which had Appeals affirmed opinion without a decision an intermediate by court.

17 1937] AFFIRMANCE OPINION 227 WITHOUT function Appeals' judicial system. "That function," Justice Car- in our is, "the itself has defined. It wrote, briefly stated, the func- dozo court not of declaring justice between man and tion, but of settling the man, law. court exists, not for the individual litigant, but for the indefi- The body nite of whose causes are litigants, involved in the specific potentially cause at issue. The wrongs of aggrieved suitors are only the algebraic s justice." of formula the out work to is court the which from symbols To without affirm opinion is to aggrieved leave suitors stunned and overcome by incoherent algebraic symbols wliich they have neither the duty the power to forge into usable formulae. nor 58. CAOOzO, JVYPSDICMoN oF =E CoURT oF AP.T.s (2d ed. 1909) § 6.

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