Most work product that you see when you teach at a law school is reasonably good. Your students have graduated college; they've generally done well there; they scored highly on standardized tests; and typically they work fairly diligently on their projects. As a result, the vast majority of the time, you're fairly pleased -- or at least satisfied -- with what you see.
But, sometimes, you come across work product that's terrible. Just terrible. Incredibly, stunningly, terrible.
At which point you have to make a decision.
The biggest part of you -- or at least of me -- wants to be honest. Ruthlessly honest. To tell them exactly what they've done wrong and why, as well as to explain exactly what the deficiencies are in their work and how serious, deeply serious, those deficiencies are. That may mean telling them that their work product is bad. Incredibly bad. But you hope that this bad (but accurate) news will help them improve in the future, which is your exclusive goal. It'll make them a better person for you to be blunt about where they have failed and by what magnitude. Even if that news may cause them some short-term distress. No one, after all, likes to be critiqued for their work. Especially work on which they've spent a fair amount of time. Nonetheless, you want to be honest, in an effort to make them better. Seriously honest.
But another part of you often says: "What's the point?" They're not going to like being critiqued. Especially if you're honest about the gravity of your critique. They may well think that you're being overly -- wrongly -- judgmental. That their work isn't nearly as bad as you say it is. That your critique is just your opinion, and one not worth much weight at that, and probably doesn't in fact reflect the quality of their work product. The author may think: "Well, yeah, maybe my stuff wasn't awesome, but it was just fine; this guy's just being a jerk." So they'll sit there and listen, but really they've tuned out and aren't hearing what you're saying. Or at least not accepting it. Because they won't believe it's actually that bad.
That's a natural response. And it's much more common, I think, than someone taking a powerful -- blunt -- critique to heart. Much of the time, all that being ruthlessly honest about incredibly poor work product only ends up in upsetting the author and/or making them tune out.
So what's the point? You haven't actually accomplished your objective. All you've done is to come off like a jerk yourself.
So you're inclined to sugar-coat your review. Sure, you tell them the parts of their work product that are bad. But you never accurately reflect your overall review of the piece. Or -- and this is the downside -- reveal your belief that what they've written is really bad. Unacceptably bad. Which you want to say so they won't do it again. But, instead, you tell them the bad parts, they come away thinking what they've done is okay but not great, and, yeah, they've (maybe) learned a bit, but there's still a darn high chance that the next project they do (or the one after that) will be just as intolerably bad as the thing you read.
But at least their feelings weren't hurt.
That's a struggle you occasional face as a teacher. There are analogies to other areas of life, of course; child rearing comes to mind, for one. Other things too. How harsh -- or "honest" -- should you be when you see something that's profoundly subpar? Especially when you know the author can do better?
Judge Smith authors a dissent from a denial of rehearing en banc in an ERISA case today, joined by Judges O'Scannlain, Tallman, Gould, Bybee, Callahan, Bea, and Ikuta. Sometimes such dissents can serve as an especially powerful way to convince the Supreme Court to grant certiorari in the case. Or, at a minimum, are fairly devastating indictments of the underlying panel opinion.
This is not, in my view, one of those types of dissents.
The dissent begins with a one-sentence paragraph; a sentence that simply quotes the underlying standard for en banc review. "A party may petition for rehearing en banc when 'the
panel decision conflicts with a decision of the United States
Supreme Court or of the court to which the petition is
addressed . . . and consideration by the full court is therefore
necessary to secure and maintain uniformity of the court’s
decisions.' Fed. R. App. P. 35(b)(1)(A)."
I don't think that's an especially powerful, or helpful, way to begin your dissent. If only because pretty much everyone reading the thing already knows the relevant standard.
The second paragraph shifts to making conclusory representations about the panel's opinion that doesn't describe the particular issues at stake and could probably be inserted virtually verbatim into pretty much any dissent from a denial of rehearing en banc. "In this case, the majority ignores United States Supreme
Court precedent and our own Employee Retirement Income
Security Act (“ERISA”) precedent and thus fails to maintain the uniformity of the courts’ decisions. Therefore, I must
dissent from our court’s refusal to rehear this case en banc." I'm not sure that really advances the ball very much.
You can read the rest of the dissent if you'd like, but in general, I was underwhelmed, and thought it could have been written a bit better. It's not that anything that Judge Smith says is demonstrably wrong. It's just not a very powerful, or even especially persuasive, submission. Sometimes you've be more than happy to write a certiorari petition that simply quoted at length from a particular judge's dissent from the denial of rehearing en banc. You definitely wouldn't do that here (or at least I wouldn't). There's a lot missing, and you might even prefer to simply quote from Judge Ikuta's dissent in the underlying panel opinion instead.
The dissent concludes by articulating two rhetorical questions. I'm not sure this is a generally great way to end a dissent. Especially when, as here, those rhetorical questions -- like the introduction -- again are not targeted towards the particular issues in this case and could be used verbatim in pretty much every single dissent from a denial of rehearing en banc in the universe. This conclusion reads: "Why have the Supreme Court and our circuit mandate
standards of review if judges can ignore them at any time
they are so inclined? Our circuit has inexplicably turned its
back on the principle of stare decisis in this case. From this
time forward, can each panel decide the law on its own,
provided enough active judges are willing to live with it?"
I don't think that legal briefs that end with similar rhetorical questions have much persuasive effect. I feel the same way about the conclusion here. It just doesn't especially move me.
I've seen better.
Again, it's not that Judge Smith says anything demonstrably wrong. It's just that dissents from denials of rehearing en banc are often some of the most powerful, persuasive pieces that come out of the Ninth Circuit.
With respect, I don't think that this particular missive is in that particular category.
