Partners Y. David Scharf and Hon. David Saxe Discuss the Importance of Dissent in Appellate Courts in New York Law Journal

Morrison Cohen Chair and Co-Managing Partner Y. David Scharf and Partner Hon. David Saxe, a former Associate Justice in the New York Supreme Court Appellate Division, First Department, co-authored a recent New York Law Journal article, “The Importance of Dissents in an Intermediate Appellate Court.”

Their article responds to efforts in recent years to limit dissents in the Appellate Division, particularly the First Department. Critics argue that dissents create uncertainty in the law, weaken the authority of appellate courts and may signal a breakdown in collegiality among judges.

Scharf and Saxe take a different view. They emphasize that dissenting opinions play a vital role in shaping precedent, but caution they should be “issued sparingly and reserved for instances where there are fundamental disagreements over legal principles.” Dissents, they explain, can persuade a majority, sharpen legal reasoning or prompt review by the Court of Appeals. “Rather than diminishing a court’s institutional prestige, dissents may strengthen its legitimacy in its truth-seeking role,” they state.

The authors also stress that collegiality should not suffer as a result of disagreement. Judges should “welcome differing viewpoints and agree to disagree without delving into a lack of civility or intolerance,” they write.

Ultimately, they conclude that the importance of dissent, especially in intermediate appellate courts, cannot be overstated. “Dissents are welcomed by the Bar as they call attention to the intellectual stirrings, vitality and ability among appellate judges that enliven the practice of law and its development.”

Subscribers to New York Law Journal may read the article here.