Howard "Energizer Bunny" Bashman (see the current issue of the ABA Journal (print edition) for the source of his "handle"), has another of his thoughtful columns over at Law.com questioning the use of per curiam opinions by various appellate courts.
As Howard notes, per curiam (Latin for "by the court") opinions are simply those usually short opinions which don't indicate their authorship by a particular judge or justice.
Howard speculates about the possible reasons why a court may issue an opinion per curiam and his column is well worth the read so I won't replay them here. What does come through loud and clear in Howard's piece is the basic frustration of any appellate specialist - those who make a long and successful career out of studying every nuanced sentence written by every appellate judge they practice before - generated by not knowing who wrote an opinion. The very best appellate lawyers, such as Howard, do everything short of a gas chromatograph examination of every judicial opinion with the goal of predicting how these men and women will react to future arguments they might make and as a means of dissecting who among the members of a particular court might pull some of their colleagues with them on a particular issue. There certainly isn't anything wrong with that but they are hardly considerations that should drive a court's policy or procedures.
I do agree with Howard on one central point that he makes. It is problematic for a court to issue a per curiam opinion to establish precedent. While such an opinion has the same force of law as any other opinion, the perception for some reason is otherwise.
On my court, per curiam opinions never have any precedential value. They are used whenever a case is disposed of summarily and in other circumstances where there are no significant legal issues to resolve and no particular judge is assigned the case. In virtually all of such cases, the opinion is brief, usually only a few pages, and mostly boilerplate prepared by a staff attorney after the court has made its decision.
Howard proposes one solution in his column - eliminate per curiam opinions altogether. Of course, another solution is to make every court opinion per curiam. Doing so might reduce the number of judicial rock stars but then what would appellate lawyers and law professors ever find to talk about?
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