DRAFT Please do not quote or cite without written permission responsibility, to speak broadly, the judge can shape her agenda as she chooses. We are used to this in itigants, but not in judges. Even at intermediate levels of review, where appeal is a matter of right, the realities ofopinion-writing and publication% of decisions rendered essentially invisible to any but the immediate parties-entail similar possibilities and effects. 4 Not often are the courts as candid about their power as was the New york Court of Appeals when cemented for New york the change in tort law george priest has characterized as "a radical overturn of 300 years of civil jurisprudence. Its opinion opened with this remarkable sentence We granted leave to appeal in order to take another step toward a complete solution of the problem partially cleared up in [two prior cases, both of which were decided after the making of the orders being appealed from] While such candor is not often seen, and in this common law context the new york legislature could have corrected the court had it wished to the state of mind toward judicial function thus revealed is striking different from what we ordinarily assume in rationalizing judicial development of the common law The limitations on decisionat the highest courts not only tend to highlight their lawmaking function, but also suggest threaten the viabil ity of the context-specific techniques of common-law reasoning. Dockets have swollen, and legal questions multiplied, but not the institution responsible for managing them. Thus, the very changes that called forth the certiorari function have strong implications for the Supreme Courts possibility of generating coherence in the legal order, or effectively controlling the actions of lower courts Questions arising under any one of the dozens of complex federal statutory schemes, with enormous financial or social consequences, will not be heard even once a year, no familiarity with that statute and its administration will result. Acircuit judge who might have expected his written opinions to gain the Courts attention three times a year when the Judges Bill was enacted, today must know that this will occur, on average, less oftenthan once inthree years. We head towards one law for the Ninth Circuit, another for the Third The Justices of the Supreme Court, then, face a considerable temptation to follow Justice Scalia into relatively simple, either-or, bright-line rules -approaches that avoid the rich contextualism and modesty ofclassic common lawreasoning, yet might from the Court ' s perspective seem to promise control over adventurism in the lower echelons of the federal judiciary 8 Consider in this respect the debate between the Eighth Circuit, Judge Arnold writing, Anastasoff v. United es, 223 F3d 898, vacated as moot on reh g en banc, 235 F 3d 1054(8th Cir. 2000)and the Ninth, per Judge inski, Hart v. Massanari, 2001 U.S. App. Lexis 20863, F3d (9/2001) George Priest, Strict Products Liability: The Original Intent, 10 Cardozo L Rev. 2301, 2302, 2329(1989) 16 Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432(1963) Strauss. 150 Cases i8 Id. Schauer on textualism as a second best -6DRAFT Please do not quote or cite without written permission 14 Consider in this respect the debate between the Eighth Circuit, Judge Arnold writing, Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000) and the Ninth, per Judge Kozinski, Hart v. Massanari, 2001 U.S. App. Lexis 20863, F.3d (9/2001). 15 George Priest, Strict Products Liability: The Original Intent, 10 Cardozo L. Rev.2301, 2302, 2329 (1989). 16 Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432 (1963). 17 Strauss, 150 Cases. 18 Id.; Schauer on textualism as a second best. -6- responsibility, to speak broadly, the judge can shape her agenda as she chooses. We are used to this in litigants, but not in judges. Even at intermediate levels of review, where appeal is a matter of right, the realities ofopinion-writing and publication – 80% of decisions rendered essentially invisible to any but the immediate parties – entail similar possibilities and effects.14 Not often are the courts as candid about their power as was the New York Court of Appeals when it cemented for New York the change in tort law George Priest has characterized as “a radical overturn of 300 years of civil jurisprudence.”15 Its opinion opened with this remarkable sentence: We granted leave to appeal in order to take another step toward a complete solution of the problem partially cleared up in [two prior cases, both of which were decided after the making of the orders being appealed from].16 While such candor is not often seen, and inthis commonlawcontext the New York legislature could have corrected the court had it wished to, the state of mind toward judicial function thus revealed is strikingly different from what we ordinarily assume in rationalizing judicial development of the common law. The limitations ondecisionat the highest courts not only tend to highlight their lawmaking function, but also suggest threaten the viability of the context-specific techniques of common-law reasoning. Dockets have swollen, and legal questions multiplied, but not the institution responsible for managing them. Thus, the very changes that called forththe certiorari function have strong implications for the Supreme Court’s possibility of generating coherence in the legal order, or effectively controlling the actions of lower courts. Questions arising under any one of the dozens of complex federal statutory schemes, with enormous financialorsocialconsequences, will not be heard even once a year; no familiarity with that statute and its administration will result. Acircuit judge who might have expected his writtenopinions to gain the Court’s attention three times a year when the Judges’ Bill was enacted, today must know that this will occur, on average, less oftenthanonce inthree years.17 We head towards one law for the Ninth Circuit, another for the Third. The Justices of the Supreme Court, then, face a considerable temptation to follow Justice Scalia into relatively simple, either-or, bright-line rules – approaches that avoid the rich contextualism and modestyof classic commonlawreasoning, yetmight fromthe Court’s perspective seemto promise control over adventurism in the lower echelons of the federal judiciary.18