Appellate Decisionmaking: Unanimity or Dissent

The graph above is based on a review of almost 400 CAFC patent decisions that include a dissent. To calculate the percent of patent decisions that include a dissent, I pulled each decision associated with each judge and then added up the number of decisions that involved a dissent (regardless of whether the judge in question dissented). I am confident in these results, but a little more work is needed to handle the en banc decisions (which are more likely to involve a dissent). My RA Ryan Starnes helped in compiling the data.

24 thoughts on “Appellate Decisionmaking: Unanimity or Dissent

  1. 24

    I wonder what the correlation coefficient with how long the judge has been sitting on the court looks. With the exception of Newman (an outlier), it seems that the length of tenure is somewhat negatively correlated with the number of dissents. I guess people get along better after they’ve been forced to work with each other long enough.

  2. 23

    Seriously, there seems to be an inherent assumption in some of the comments above that the presence of a dissent indicates that someone “got it wrong.” Perhaps the existence of a dissent actually indicates the presence of a subtle point of law. In this case, a dissent is a good thing, as it should temper the majority opinion, and help reduce unnecessarily sweeping statements of law that are misapplied later.

    Viewed this way, the fact that some judges appear on split panels more often than others is quite interesting, regardless of whether they’re in the majority or not. This might indicate that these judges are better than others at spotting subtleties, or better than others at stimulating thorough discussions of the issues. Either of these traits would be extremely beneficial for an appelate judge, in my opinion.

  3. 22

    “What we need to know is: how many times is a dissenting judge in the minority. (?)”

    Every time. Next question?

  4. 21

    Yes, I think the way to show the information is to make this a stacked plot, so that each bar is split into judge-in-minority and judge-in-majority.

    Still very interesting, though – thank you!

  5. 20

    Can’t see the trend? I can. The 3 women judges are in the top 4 poo-dippers. Dennis needs to run some t-tests or something and tell us what the chances are that this distribution is random.

    I am struggling with the significance of a judge touching a case that has a dissent with no information as to whether that judge is the actual dissenter. I mean, according to these data we don’t know that Newman has never ever dissented and just gets stuck with nay-sayers on her panels. So?

    What we need to know is: how many times is a dissenting judge in the minority. (?)

  6. 14

    DDC – thanks for the response… I suppose some sort of trend could be divined, especially for judges like Newman with particularly high dissent rates; however, in most cases I’d imagine the influence of varying combinations of judges in each panel would cause “peacemaker” judges to have more dissents show up in their column just due to who they end up with… Though I guess that could also lead to insight (with the use of additional data) in to just how effective these “peacemakers” are…

    Through the looking glass – I’m curious, what are these political powers the CJ has to promote unanimity?

  7. 13

    Are you currently editing the figure or something? It’s not showing for me when I view your blog directly, but I can see it in the RSS feed.

  8. 12

    I don’t think this data tells us anything about unanimous/non-unanimous decisions. There are plenty more non-unanimous decisions where a judge in a 2-1 minority chooses not to write a dissent.

    Rather, it seems to reveal something of the relative self-confidence of various judges in their own reasons when they are willing to put their dissenting arguments into writing and place them on the record next to the majority opinion for everyone to see and critique.

    It may also say something about the strength of opinion of certain judges (or even a more democratic approach to legal decisionmaking that opens the internal debates of the court to public discussion), which leads to a willingness to publicly air their disagreement with the other judges on particular issues of unsettled law.

  9. 11

    Looking through the glass —

    Right on about Newman. She’s the most sensible of the lot. It’s the others who go astray…and it gets worse all the time.

  10. 10

    MM Said: What exactly is the point of this data when it does not distinguish whether the judge was in the majority or minority?

    DDC Says: The point is to see if some judges tend to be peacemakers (wanting unanimous decisions) while others tend to be fractionalists (leading to dissents).

  11. 9

    Blue judges are inactive or senior status. I thought those particular judges had an interesting history of decisionmaking. As had been noted in the comments, Judge Nies should probably have been included. She has a relatively high dissent rate.

    A longitudinal study like this is difficult because the various subjects come and go at different times. Over time, the court has seen more and more dissents. Much of Judge Newman’s 24 years the bench was spent in a time of fewer dissenting opinions — thus making her high dissent rate even more compelling when compared to here current colleagues.

  12. 8


    Blue appears to signify a judge that is no longer active, as he is deceased or has taken senior status.

    Given the remarkable differences in the number of opinions involved, and the different eras in which the various judges issued opinions, it is all but impossible to draw any meaningful conclusions from these data. Also, why include data for Judges Markey and Rich, but not any other retired/deceased judge? If judges who served prior to the creation of the CAFC are to be included, why distinguish between CAFC decisions with primarily three-judge panels and CCPA decisions with primarily five-judge panels?

  13. 7

    I think blue means that the person was a “Chief Judge” at one time or another. The Chief Judge has political tools that allow opinions to be unanimous. The above graph shows that Plager were good at using those manipulative CJ tools whereas Markey was not. Other judges probably agreeded with Rich because it was his patent law to begin with. Newman’s participation in numerous fractured opinions likely is a result of others being wrong and Newman not cowtowing or cottoning to their wayward patent law ways.

  14. 6

    In addition to majority/minority, it may be useful to break this information down by using subject matter of the dissent (recognizing that multiple issues may be brought up in one case).

  15. 5

    What exactly is the point of this data when it does not distinguish whether the judge was in the majority or minority? I’d be more interested to see the percentage of cases heard by each judge in which they write a dissenting opinion…

  16. 2

    I’m not sure that follows because it says “regardless of whether the judge in question dissented”.

    Wouldn’t the only way to answer your question be to see how many times Newman was in the minority??

  17. 1

    From this am I correct in my long standing belief that Newman is the most out of step judge with the thinking of the CAFC?

    Are there some former CAFC judges missing, like Helen Nies, especially since Rich is included.

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