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August 26, 2004

Astute words from the Third Circuit

As suggested here, I am troubled that the Fourth Circuit in Hammoud issued a consequential and opaque en banc order about Blakely's inapplicability to the federal guidelines and still has not, more than three weeks later, issued an opinion to support and explain that order. Similarly, as detailed here, I am troubled that the Sixth Circuit in Koch issued a nearly identical en banc order about Blakely's inapplicability to the federal guidelines and still has not, nearly two weeks later, issued an opinion to support and explain that order. One basis for my concerns is that this article suggests the orders might reflect the Fourth and Sixth Circuits simply adopting verbatim the position of DOJ.

I have felt a bit guilty expressing my concerns about the Hammoud and Koch orders in snarky ways (example here), and so I am thankful that this post from Orin Kerr at The Volokh Conspiracy highlights a recent Third Circuit opinion which expresses my core concerns responsibly and eloquently. In Bright v. Westmoreland County, No. 03-4320 (3d Cir. Aug. 24, 2004), available here, a panel of the Third Circuit reversed a district court decision which was a near verbatim copy of a proposed opinion submitted by one of the parties. The whole decision in Bright is an interesting read, and I find these astute words from the Third Circuit especially compelling:

Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions....

We have made it clear that the linchpin in using findings of fact, even when they are verbatim adoptions of the parties' proposals, is evidence that they are the product of the trial court’s independent judgment. In this case, there is no record evidence which would allow us to conclude that the District Court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the District Court casts doubt on the possibility of such a conclusion.

Courts and judges exist to provide neutral fora in which persons and entities can have their professional disputes and personal crises resolved. Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness.

August 26, 2004 at 03:53 AM | Permalink


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