Judges should admit goofs instead of quietly revising opinions, says 9th Circuit judge

Judges appear more willing to explain how their views have evolved than to confess to a mistake in an opinion, according to a federal appeals judge.

Writing for the Arizona Law Review (PDF), Judge Andrew Hurwitz of the San Francisco-based 9th U.S. Circuit Court of Appeals says judges should be more transparent about their errors. The Wall Street Journal Law Blog notes the article.

“My thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional ‘goof,’ ” Hurwitz wrote. “Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.”

Hurwitz says appellate judges most often respond to goofs by issuing amended dispositions without explaining the reason why. He offers the 9th Circuit as an example. In the last five years, the appeals court has amended 593 published opinions and 107 unpublished memorandum dispositions. Sometimes the reason is to correct technical or formatting errors. In others, the court determines that intervening case law did not change the result. But rarely do the amended dispositions state why changes were made.

A study by Harvard law professor Richard Lazarus has focused attention on the Supreme Court’s issuance of revised opinions—sometimes years after they were written. The court does provide a warning on each opinion as it is released that it is “subject to formal revision before publication.” But the court rarely announces when and what changes are made.

Justices Antonin Scalia and Elena Kagan recently made flubs in their Supreme Court opinions that resulted in changes.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.