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24 April 2007


David Zaring

I'm not sure that a 10% risk of reversal isn't worth worrying about! But I take the point, and it's a nice observation on remand motions - stay motions are a bit less convincing evidence, because many of those might not be dispositive. And yes, I agree that summary judgment orders are hardly the whole story in litigation. I think the interest in them is that they make claims about what the law is, while other sorts of orders do not or (discovery, remands) do so in ways where DJs have almost absolute discretion.

dave hoffman

Thanks for the comments.

1. The article provides evidence that district judges *think* that writing an opinion reduces the risk of reversal. (Whether opinions actually affect appellate behavior is at best unclear. The risk itself is negligible, which is why we call on the BLE literature to explain the effect.) Nonetheless, trial courts' belief is (no doubt) encouraged by appellate courts who often when reversing comment on the lack of an opinion.

2. In terms of whether moments correlated with appeal are more dispositive/appropriate for effort, that is a hard question, but I've some doubts. Just to take one example, stay and motions to remand are almost never subject to appeal and almost never resulted in opinions in our data, yet those moments are outcome dispositive. Similarly, discovery orders may significantly change the landscape of the dispute, but (again) are not subject to immediate appeal in the ordinary case, and are rarely explained.

I take it, though, that neither of you disagree with the basic intuition, which is that summary judgment orders are very overpresented as opinions as compared to the universe of what trial courts generally "do" with respect to litigants?

David Zaring

My anecdotal sense is that it wouldn't be that odd for district court judges to write opinions for appealable moments. For one thing, if they got the law wrong, the appellate court could always affirm on other grounds. For another, district court judges could bullet-proof their opinions with alternative holdings, and factual findings where appropriate - which might convince otherwise skeptical appellate judges.

But I agree that risk aversion may not explain the decision to write on summary judgment motions. That may be considered more appropriate - and indeed, the failure to justify orders throwing out a case may result in more reversals. Then it wouldn't be necessarily risk aversion, it would just be a job requirement.


This theory seems very odd to me. They write opinions to avoid reversal, but I wouldn't necessarily think that an opinion would reduce the risk. If there's an opinion, the higher court could reverse an opinion for getting the law wrong -- absent any opinion, I would think the higher court would be more likely to defer to any acceptable justification for the outcome.

Isn't it true that the procedural moments for which review is more likely are the significant dispositive moments when an opinion seems worth the effort to write?

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