“No, But” and “Yes, But” Tort Duties—Pagayon, et al. v. Exxon Mobile Corporation (and the importance of footnote 33)

When it comes to tort duties in Texas, the Supreme Court cautions attorneys to watch their buts. In Pagayon, et al. v. Exxon Mobile Corporation, No. 15-0642 (Tex. 2017), the Court addressed the issue whether an employer owed a duty to control its employee under the particular circumstances in the case, but declined to circumscribe a general duty, one way or another, to control others. Justice Boyd, in an impassioned and concise concurrence, charged the majority with substituting “Moses-like methods” for “Solomon-like” solutions and for succumbing to Potter Stewart-esque approaches to tort duties, a charge address by the majority in footnote 33.

Underlying both the majority and concurrence is an age-old problem with tort law, specifically negligence: how to create fact-insensitive principles of law that articulate general duties so as to narrow judicial discretion on what is generally a question of law—does the defendant owe a legal duty?  This blog provides (1) an overview of the facts and holding in Pagayon, and (2) an analysis of footnote 33, hopefully to help the reader understand what Moses, Solomon, and Pornography have in common here.

*One more thing to note, the Court, again, made clear that certain tried-and-true torts—specifically negligent supervision, hiring, retention, and training—may not exist under Texas law, notwithstanding the fact that lower courts generally recognize these torts or take these torts for granted.*

1.     Pagayon, et al. v. Exxon Mobile Corporation in a (medium sized) nutshell.

Pagayon involved the tragic and wholly unnecessary death of Alfredo Pagayon, Sr. Alfredo Sr. secured a job for his son, Alfredo, Jr., at a convenience store owned by Exxon Mobil Corporation and managed by Alfredo Sr.’s friend, Roce Asfaw. A fellow convenience store employee, Carlos Cabulang, at some point offended Jr. when Carlos asked if Jr. was having an affair with a co-employee, Vong Vu. Jr. complained to Roce, but was told to ignore Carlos. On a sequent evening, two customers complained to Jr. that the men’s restroom had an “out of order” sign on it. Jr. discovered that the restroom was not out of order and felt that Carlos had placed the sign on the door to harass him, as Carlos had worked the prior shift. Jr., again, informed Roce, who, again, told Jr. to ignore him.

Alfredo Sr. knew Carlos and called him after Jr. complained about the apparent harassment at work. Alfredo Sr. told Carlos to stop harassing Jr. The two got into an argument. On Jr.’s next shift, Carlos confronted Jr., cursing and threatening him and his father. Jr. became afraid and told another employee, Jovita Leslie, who, in turn, told Carlos to stop. When Carlos refused to stop, Jovita called Roce at Jr.’s request. Roce told Jovita to instruct Jr. to stay away from Carlos. Roce did not speak with either Carlos or Jr. The situation deescalated and Jr. and Carlos worked side by side until Jr.’s shift ended.

This was the first time that Roce had any indication of Carlos’ hostility toward Jr. or anyone else. Jr. had never informed Roce that he was afraid of physical violence. And, nobody had informed Roce about the heated conversation between Alfredo Sr. and Carlos.

Alfredo Sr. arrived at the convenience store to pick Jr. up and Carlos immediately confronted him. A fight between Alfredo Sr. and Carlos ensued. Carlos knocked Alfredo Sr. to the ground.  Jr. intervened, placing Carlos in a headlock. The fight then ended. Alfredo Sr. complained that he could not breathe, so Jr. called 9-1-1. Twenty-three days later, Alfredo Sr. died from cardiac arrhythmia, respiratory failure, and renal failure. The Pagayon family subsequently filed a wrongful death suit against Exxon.

At the trial proceeding, the jury found Exxon negligent in its supervision of employees and also apportioned fault to Alfredo Sr. and Jr. The jury attributed 75% liability to Exxon and awarded the Pagayon family damages near $2 million. The Houston Fourteenth District Court of Appeals remanded the case for a new trial on the ground that the trial court erred in not allowing Exxon to designate as a responsible third-party the emergency room physician, Dr. Hung Hoang Dang, who treated Alfredo Sr., and who allegedly made several failed attempts to drain a lung that did not exist—Dr. Dang read a dark space on Alfredo Sr.’s chest x-ray as a fluid filled left lung; Alfredo, Sr. was born without a left lung. The court of appeals, rejected, however, Exxon’s argument that it owed no duty to control Carlos.

The Texas Supreme Court granted the parties’ respective petitions for review and took up the single issue whether Exxon owed a duty to control Carlos under the circumstances. Even though lower Texas courts have held employers to general duties with respect to negligent hiring, negligent, or negligent supervision, the majority opinion made clear that the Texas Supreme Court has never ruled on the existence, scope or contours of such torts and the lower courts have never engaged in the requisite duty analysis to determine the existence of these torts either. See *13-14.

The rule in Texas is that no general duty exists to control others, unless a special relationship gives rise to a duty to aid or protect others. This is a “no, but” approach. Employment is one such special relationship, but the question is whether there is a general duty for persons in a special relationship with another to control the other. The Court looked to the Restatements Second and Third to aid its analysis of this issue.  The Restatement Second rule is “no, but”—no general duty to control others when a special relationship exists, but there are exceptions. The Restatement Third rule is “yes, but”—yes persons in a special relationship with another owe a duty to reduce or prevent risks to third parties, but there are exceptions. One such exception to the Restatement Third rule is that “a court may decide, based on special problems of principle or policy, that no duty or a duty other than reasonable care exists.” See *17-18.

The Court appeared to adopted the “yes, but” rule respecting special relationships. The court rejected the Restatement Second “no, but” approach, primarily due to a broad exception to the rule in Section 317, which states:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a)                  the servant . . .  is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, . . . and

(b)                  the master . . .  knows or has reason to know that he has the ability to control his servant, and . . . knows or should know of the necessity and opportunity for exercising such control.

The Court rejected Section 317, as it stated a broad rule without regard to policy considerations and other factors that Texas courts are charged to weigh when determining whether a duty exists.  

Whether a duty exists is a question of law for the court and is determined by weighing various factors:

The considerations include social, economic, and political questions and their application to facts at hand. We have weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

*9-10 (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). The Court judged Section 317 according to this Humble Sand baseline and explained that Section 317 falls woefully short. See *14-17. Section 317 states a general rule without regard to policy considerations, such as “the burden on the employer, the consequences of liability, and the social utility of shifting responsibility to employers.” See Pagayon, at *15.

Texas, then, appears to be a “no, but” and “yes, but” state: There is no general duty to control others, unless a special relationship exists; There is a general duty for a person in a special relationship with another to control the other with regard to risks that arise within the scope of the relationship, unless a court determines, based on problems of principle or policy, that no duty exists. See *17-18. This second "yes, but" rule makes most sense when considering that the general "no, but" rule makes an exception for special relationships, which would include employer/employee relationships. It would seem to follow that this exception means that one in a special relationship generally owes a duty to control the other. Of course, it need not follow this way. But, adopting "yes, but" also has the benefit of preserving lower court holdings that have found a general duty with respect to special relationships, such as employer/employee, as the Court noted that lower courts have upheld negligent supervision, hiring, training, and retention liability without engaging in the requisite duty analysis. Since courts will not raise lack of duty sua sponte, this would leave it to defense attorneys to raise the exception to the general rule based on public policy grounds or else risk waiving the argument. 

Having articulated the standard, the Court easily determined that Exxon owed no duty to control its employee under the circumstances of this case. First, the risk of this occurrence was minor as the situation was not one in which ‘repeated, serious, threats or action” posed a threat to patrons. Second, the risk at issue was not foreseeable, as the disagreements between the parties were “matters of words until the fistfight suddenly broke out.” Third, placing a duty on the employer here would impose a significant burden, as employers would be required to investigate and monitor every situation, no matter how trivial or small. Fourth, “the result was bizarre, given the brevity of the altercation, the absence of any weapons, and the slightness of the provocation,” and extending liability to the employer here would effectively “render the employer liable for the most extreme consequences of simple employee friction.” Fifth, the public was never in danger, so there would be very little social utility to imposing a duty on the employer here. See *18-20.

2.Footnote 33—Moses, Solomon, and Pornography

Justice Boyd criticized the majority opinion on three separate, but related grounds, though he lists them as “two interrelated reasons.” See *20 (Boyd, J. concurring). First, the majority opinion did not need to reject Section 317 outright. Justice Boyd agreed that Exxon owed no duty under the circumstances here, whether solely applying the duty balancing test or Section 317. Section 317 imposes liability on an employer when “the employer knows or should know that a ‘necessity and opportunity for exercising such control’ exists.” *21. The facts here clearly showed that Roce, and thereby Exxon, had no reason to think that its employees posed a risk to any patrons, or any risk of physical harm to any third-party or fellow employee. It was not necessary to decide one way or another whether Section 317 correctly stated an employer’s duties.

The second criticism relates to the first. Section 317 provides something like a bright-line rule. It objectively defines a duty and, as a result, can provide authoritative guidance to others. Justice Boyd posited that the judicial system should provide “Moses-like methods,” by which the law provides such authoritative guidance so that people can govern their conduct accordingly. He charged that the majority, instead, provides a Solomon-like solution[].” See *24. That is, the judicial system disserves the public when, rather than providing authoritative dictates that facility predictability and prospectivity, it attempts to do equity only under the specific facts of the case. Courts, in other words, should not be viewed as the place to go to find out what your legal duties are. If you are to be held accountable for your actions, the law should, ex ante, already inform you or provide specific guidance for you to determine the duties to which the law will hold you accountable; otherwise, how can law be expected to govern anyone?

Third, and related to the first two, Justice Boyd bemoans unfettered judicial discretion. Though the majority cautions against overly broad rules, it ignores the danger of overly narrow rules. See *24-25. Both overly broad and overly narrow rules work the same evil—unfettered judicial discretion. With an overly broad rule, like the duty analysis, which requires weighing various factors, a judge can repair to his or her own personal intuitions about what the law should require under the circumstances, which “erodes objectivity.” See *24. With an overly narrow rule, even if the court employed an objective method to arrive at the narrow rule, if the facts to which the narrow rule apply are irreplicable,” the rule proves useless to lower courts and future litigants, which effectively leaves the judiciary with the same unfettered discretion. So, Justice Boyd accuseed the majority of providing “little more than a Potter Stewart-esque we-know-duty-when-we-see-it approach” to tort duties in the employer-employee relationship context. See *23 (citing Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (declining to attempt to define pornography, but stating that he “know[s] it” when he “see[s] it”).

The majority retorts in footnote 33. In footnote 33, the Court conceded to Justice Boyd’s charge that the majority provides only a Solomon-like solution, as opposed to a Moses-like method. This confession is significant when considering Justice Boyd’s overall point is that the judicial system disserves itself and the public when its rules do not, ex ante, provide clear authoritative guidance. The majority rejected, however, Justice Boyd’s “Potter Stewart-esque” charge.

Chief Justice Hecht, in footnote 33, provides a justification for narrow duty rules that he considers to serve the overall goal of a attaining an appropriate and  general rule. This is the common law vision: “The recognition of an appropriate rule must await ‘the incremental and reasoned development of precedent that is the foundation of the common law system.’” See footnote 33 (quoting Rogers v. Tennessee, 532 U.S. 451, 461 (2001). Justice Hecht’s retort in footnote 33, while conceding to Solomon-like solutions here, focuses on the proper role of the judiciary when developing the common law. “[T]he concurring opinion prefers a prescriptive approach in recognizing legal duties to that of the common law.” See footnote 33. State another way, the concurring opinion would have the Court usurp the function of the Legislative Branch.

            Conclusion

Pagayon v. Exxon Mobil Corp. provides a roadmap for practitioners when preparing their next direct negligence claim against an employer as well as those practitioners defending against these claims. Remember to watch your buts. In the employer/employee tort context, Texas is a “No, But” and “Yes, But” state. Defense counsel should frame this "Yes, But" as "yes employers generally owe an affirmative duty to control their employees to prevent them from harming other persons, but only if the court finds that the balance of factors weigh in favor of imposing such a duty on the defendant under the circumstances in this case." Finally, create, at minimum, three sets of generalized statements of the duty owed—a broad, medium, and narrow statement. And, polish up on public policy arguments.             

Potential Jurors' Moral Commitments and the Risk-Benefit Test in Products Liability Defect Cases

        In a product defect case involving serious bodily injury or death, the last thing a defense attorney wants to do is talk about how the benefit to society of the client’s product as presently designed outweighs the risk of injury or death to a single person (or few persons) when compared to a practical and feasible alternative design that would reduce or eliminate the present risks. The risk-benefit test for product defects, however, requires a defense attorney to start that conversation and convince a jury that the benefits of a product outweigh its risks, rendering the product reasonably safe, even in the face of an actual injury or death that relates in some way to use of the product. This is a daunting task, especially if the defense attorney lacks information about jurors to determine whether they are really willing or able to engage in such a calculation.

        Trial attorneys are provided wide latitude during voir dire to investigate potential jurors’ prejudices and biases. Knowing how to press potential jurors’ moral reasoning will provide enough information to identify, above a mere guess, which jurors are most likely to engage in a risk-benefit calculation. An easy test exists to weed out potential jurors most inclined to reject a defendant-friendly risk-benefit analysis.

        There are generally two major moral views—please forgive this oversimplification: utilitarian and deontological. Utilitarians support the greatest good for the greatest number. Deontologists on the other hand, support treating each person as an end in herself and never as a means to an end. Utilitarians tend to be more receptive to risk-benefit analyses than deontologists.

The Trolley Car Problem

        A famous moral inquiry, introduced by Philippa Foot, provides the perfect test to get potential jurors talking and to press their moral limits. Imagine you are overlooking a trolley track. In the distance you see a trolley car traveling at a high rate of speed and you notice that it lacks a driver. You also notice that it is headed straight toward five unaware people who will surely die if no one intervenes to stop or divert the trolley.

        You are the only person at the station. Next to you is a lever that will divert the trolley down the only other path. On that path, you notice a single unaware individual who will surely die if the trolley heads in that direction.

        What do you do? Do you pull the lever, thus diverting the trolley toward the one unaware individual? Or, do you allow the trolley to take its course toward the five unaware people? Remember, no matter what choice you make, death will ensue. The only question is, how many people will die? One or five?

        Same scenario, except there is no lever next to you that can divert the trolley. Instead, next to you stands a heavy person. The heavy person is turned away from you. The heavy person is exactly heavy enough to stop the trolley dead in its track. If you push the heavy person onto the track as the trolley approaches, his body will stop the trolley. The heavy person will die, but the five people on the track will live. If you do not push the heavy person onto the track to stop the trolley, the trolley will continue on its path and surely kill the five unaware people on the track.

        What do you do? Do you push the heavy person onto the track to save five people? Or, do you allow the trolley to take its course toward the five unaware people, who will surely die, and leave the heavy person alone?

        Most people opt into pulling the lever to divert the train, but opt into inaction when there is only the heavy person to stop the train. Moral philosophers debate the reasons for this seeming disjunction, because the results would be the same if you pulled the lever as if you pushed the heavy man on the track: one person dies, five people live. Some people explain the result in terms of agency: when you pull the lever, you are not complicit in the death of the one person on the track the same way that you would be complicit if you pushed a person to his death, even though you saved five people. But this complicit argument places to much weight on proximity. An action is required in either scenario—pull a lever or push a person—and the person doing either action knows in advance the outcome—death. 

Reason-Giving and Potential Juror Identification

        The upshot of asking potential jurors for their answers to this moral quandary is (1) you can identify potential jurors who will not even entertain pulling the lever. The value of life is something that outweighs any and all utilitarian calculations. You might try to rehabilitate this potential juror to see if she can never engage in any utilitarian calculation. For example, even truly committed deontologists waiver in their commitment when the stakes are substantially increased: If five-hundred children were on one track and would surely die if you did not push the lever to divert the trolley onto the track with one person, would you pull the lever? You might even change the scenario: There is no lever and no heavy person; there is only a heavily sedated gorilla on the platform that will stop the trolley and save five people if you push the gorilla on the track. You will find that nearly everyone will have no problem pushing the gorilla onto the track to save five people. Those persons who would not even entertain pushing the gorilla onto the track to prevent five people from dying may not be good candidates for your products liability case. 

        (2) You can identify potential jurors who will entertain pushing the heavy person. These are serious utilitarians. You at least know that these potential jurors are willing to engage in the type of calculation necessary to defend your client.

        (3) By engaging in this intellectual exercise, you treat the potential jury pool as your intellectual peers and may gain their trust. You will find that this exercise gets the jury pool talking and interested. They will laugh, show concern, and ask questions of their own.  

Jury Nullification and Jury Tampering: The Case of Keith Wood

            Keith Wood found interest in a government case against Andy Yoder, an Amish man accused of violating a regulation that prohibited draining a wetland, the wetland of which was on Yoder’s property. Wood’s interest in the case centered on the government’s purported right to control what one does with his private property. He attended Yoder’s pre-trial conference. After the pre-trial conference, Wood ordered pamphlets from the Fully Informed Jury Association, which contained general information about juror’s rights, including the right to vote one’s conscience and jury nullification.

            On the day of the Yoder trial, Wood stood on the sidewalk in front of the courthouse and passed the pamphlets out to passersby. Wood was arrested for, charged with, and subsequently convicted of jury tampering. He denied at trial that he asked any person to whom he handed a flier whether that person was a juror.

            At the trial, the prosecution made clear that the content of the flier was not at issue; rather, at issue was the manner in which Wood passed out the flier. The prosecution’s position was that Wood intended to target jurors in the Yoder trial in an effort to aid Yoder’s defense, essentially telling jurors (without saying the actual words) that they should nullify or conscientiously vote against the government.

            Wood’s defense focused on the First Amendment implications of the criminal charges. The pamphlets contained general information about juror’s rights. They contained no information pertaining to the Yoder case or Yoder himself.

            For the government to arrest and charge one of jury tampering for passing out general information pertaining to the rights of citizens as jurors seems to run afoul of the First Amendment right to free speech. The Michigan Penal Code, section 750.120a(1) reads as follows: “A person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.” The prosecution in the Wood trial really focused on the “willfully attempts to influence the decision of a juror” element. The defense focused on the “argument or persuasion” element. 

            It is worth considering what constitutes argument or persuasion under this statutory provision. Is it argument or persuasion to inform ordinary citizens of their rights when serving as jurors? If Wood informed every person he met that morning that every citizen has a right to vote his or her conscience as a juror and to nullify—to effectively veto government prosecution—without saying anything else, would that constitute argument or persuasion?

            Imagine that Wood did not hand out a juror’s rights pamphlet. Instead, Wood stood on the sidewalk in front of the courthouse handing out copies of certain statutory provisions and all case law interpreting those provisions. Assume that the statute and case law applied to the Yoder case. No other information was provided—no analysis of the statute or case law by some third-party. Assume also that every case analyzed the statute favorably for a defendant and unfavorably for the government. Would that constitute argument or persuasion? Consider that the statute is law and the case law is also law. Also consider that every person is expected to know and understand the law; otherwise, how could government expect law to govern any citizen's conduct? Ignorance of the law is no excuse, right? What is the difference between this scenario and handing out a juror’s rights pamphlet that simply states facts: every citizen has a right as a juror to vote his or her conscience and to nullify (that is, to act as a check against a wayward legislature, executive, and/or judiciary).

****As an aside, it is worth noting that jury nullification was a concept alive and well at this nation’s founding. John Adams once declared, “the common people . . . should have as complete a control, as decisive a negative” in courts as they do in other governmental decisions through their representatives. See 2 JOHN ADAMS, Diary, Feb. 12, 1771, THE WORKS OF JOHN ADAMS 253 (1850).****

            Same scenario except assume that every case provided by Wood analyzed the statute unfavorably for a defendant and favorably for the government. Would the government consider this to constitute argument or persuasion for purposes of prosecuting Wood for jury tampering? Why or why not? What if the case law was split, interpreting some parts favorably but others unfavorably for a defendant?

               Last, what if the judge informed the Yoder jury panel of the same rights listed in the pamphlet handed out by Wood? Would that constitute argument or persuasion? If not, then it should not constitute argument or persuasion to hand out the same information to passersby in front of a courthouse, even if they are serving as jurors.

            The rights of citizens as jurors should not be treated as taboo. At the same time, ensuring every party or person adjudication by an impartial jury is central to any free society. In the end, no matter where one falls on the issues raised in the Wood trial, it is worth noting that a jury of his peers found him guilty of jury tampering under the facts as described above. 

The Good, the Bad, and the Judicial Hombres: Civil Dissent at the Bench

          

           Judge Reinhardt could not stop Andres Magana Ortiz’s deportation under law, but no law or rule prevented him from protesting the executive branch’s decision to deport. In a touching concurrence, Judge Reinhardt lamented:

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

See Andres Magna Ortiz v. Jefferson B. Sessions III, Attorney General, et al., Cause No. 17-16014 (9th Cir. May 30, 2017). 

          Undoubtedly many if not most people who read Judge Reinhardt’s concurrence will be moved by his sentiment when faced with the real-life impact on Magana Ortiz and his family. And everyone should encourage others to take a strong moral stance against the type of injustice raised by Judge Reinhardt’s concurring opinion. But should judges be encouraged to interject their personal moral or political opinions in their judicial opinions? Should the judicial opinion serve as a conduit for civil dissent? 

          Civil Dissent by Obedience to Official Rules and Policies. 

Civil dissent comes in many forms, from peaceful protest to open violation of official rules, and even in the form of strict obedience to official rules. This latter form of civil dissent has been referred to as “uncivil obedience.” See Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 COLUM. L. REV. 809 (2015); cf Daniel R. Correa, Civil Dissent by Obedience and Disobedience: Exploiting the Gap Between Official Rules and Societal Norms and Expectations, 8 Wash. U. Jur. Rev. 219 (2016) (arguing that “uncivil obedience” is really just civil disobedience and that the term “uncivil obedience” should not be applied to law-making or law-executing institutions).

“Uncivil obedience” is defined by Professors Bulman-Pozen and Pozen as a deliberate act that conveys criticism of a law through obedience to all applicable positive law, intending to change or disrupt that law or policy by calling attention to the act’s formal adherence to law while departing from the manner in which society customarily follows the law or expects the law to be applied. They include acts by individuals as well as by state and federal legislators, and state and federal executive officials, including the President.

The only government branch excluded from the “uncivil obedience” definition by the authors is the judiciary:

Judicial application of the law is unlikely to qualify as uncivil obedi­ence for a distinct set of reasons. In contemporary American practice, judges in particular are expected to attend carefully to the letter of the law. Even when they construe a directive in a literalistic manner, it will therefore rarely come across as an ironic or inflammatory intervention; it is more likely to be seen as ordinary judicial fare. Judges are also believed by many to be authoritative interpreters of legal texts, so that their rulings are seen as elaborating the underlying law rather than changing or challenging it in some reformist fashion. While we can imagine hypo­thetical examples of judges communicating a reformist intent through subversive attention to legal language (for instance, a judge sentencing at the very top of the guidelines range in order to protest draconian crim­inal penalties), and while our categories might be extended to embrace more judicial behavior, we are skeptical about the prevalence of judicial uncivil obedience as we have defined the concept.

          To determine whether Judge Reinhardt’s concurrence qualifies as a form of “uncivil obedience” or civil dissent, we should consider the nature of a judicial opinion, its purpose, function, and scope.

          What is a Judicial Opinion?

          Judicial opinions issue to inform the parties and the public of a court’s decision in resolving a dispute. Since courts are held out as law-applying institutions, judicial opinions generally include an analysis of the law and operative case facts to justify the court’s conclusion. This justification is directed to the parties, appellate courts, and the public at large, since judicial administration has as a primary goal consistent application of law to promote other Rule of Law principles, including prospectivity, predictability, and systematicity—Systematicity means that the legal system’s rules “present themselves as fitting or aspiring to fit together into a [coherent] system,” one in  which citizens are not confronted with “contradictory demands—for example, with rules that require and prohibit the same conduct at the same time and in the same circumstances.” See Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 33-34 (2008).

          With appellate opinions, sometimes one or another judge may issue a concurring or dissenting opinion. A concurring opinion is one in which the judge(s) agree(s) with the outcome or resolution by the majority opinion but offers additional or different legal of factual reasons as to why the outcome is correct. A dissenting opinion disagrees with the majority outcome for various reasons, for example, differing interpretation of legal texts, differing application of operative facts to law, or differing opinion as to the scope of judicial power and authority.

          On the whole, judicial opinions, whether majority, concurrence, or dissent, are party-adversary-centered resolution statements which purport to legally bind the parties to the suit and future courts when confronted with similarly situated parties under the same or similar facts or circumstances.

          Improper Use of Judicial Opinion

             Judge Reinhardt's concurrence drew attention to the fact that he was following all positive law. There was no rule of law that prevented him from offering a personal opinion in a concurrence. He also drew attention to his belief that the legal outcome did not comport with the way people expect the law to be applied. He made it clear that the outcome was unjust and the judicial system stained as a result. For all intents and purposes, Judge Reinhardt's concurrence would qualify as an act of "uncivil obedience," as Professors Bulman-Pozen and Pozen define it, and certainly, in any event, qualifies as an act of civil dissent.

          A judicial opinion is not the place for civil dissent. Judge Reinhardt’s protest is especially troublesome because his reasons for objecting to the outcome, though agreeing that the outcome must legally obtain, were from his position as a “citizen,” and not as a judge issuing a judicial opinion.

          Judicial opinions, including concurrences and dissents, often serve as persuasive authority for future judicial opinions, including changes in the law, but only to the extent that the persuasive authority actually makes a genuine statement about the law. Judge Reinhardt’s concurrence raises a theoretical question that speaks to the abstract question, “what makes something law.” From a positive law standpoint, Judge Reinhardt concedes that he must “concur as a judge” with the legal outcome because the law is clear. But he objects to what he personally considers injustice to the Ortiz family and to the indignity he feels in being a participant in the legal apparatus that makes Magana Ortiz’s deportation possible. Underlying this objection is the question whether an official rule or act that is unjust qualifies as law; asked another way, can anything properly called “law” work or promote injustice? Judge Reinhardt concedes that injustice and law can occupy the same space by concurring with the outcome—One might be reminded here of a famous quote from Oliver Wendell Holmes, Jr.: “This is a court of law, young man, not a court of justice.”

          There is a forum for civil dissent available to Judge Reinhardt. As a citizen, he can participate in public protest in the streets, in write personal blogs about political injustice, vote for legislators and executives (at the state and federal level) whose policies align with his own, among other forms of civic engagement and civil dissent. But the judicial opinion is not a proper venue for civil dissent. The risk is far too great that public confusion as to what makes something law or how the law is made may arise when judicial opinions present themselves as legal mandates, on the one hand, and personal opinion pieces on the other hand.