Tulane Law Review Article Cited in Debate over Unsigned Opinions

The Tulane Law Review found itself at the forefront of a debate among legal scholars regarding the increased use of unsigned U.S. Supreme Court opinions ruling on the merits of a case, with the latest opinion reaffirming Citizens’ United v. Federal Election Commission. The New York Times penned the article in prelude as the Court mulled whether to review a case in which the Montana Supreme Court refused to follow the controversial precedent. See Western Tradition Partnership, Inc. v. Attorney General of the State of Montana, 271 P.3d 1 (Mont. 2011).

The Times cited to the Law Review's publication of Ira P. Robbins' "Hiding Behind the Cloak of Invisibility," published in Volume 86, Issue 6, expounding upon whether the Justices would employ the per curiam opinion to handle the decision.

In his article, Professor Robbins argues that the use of the per curiam, which has increased dramatically under the Roberts court, “is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law."

According to the Times article, Professor Robbins is not alone in sharing this sentiment.

Laura Krugman Ray, a law professor at the Widener University School of Law, believes any new challenge to Citizens United requires more than an unsigned opinion, given the far-reaching implications of the decision, according to the article.

The Supreme Court did not rise to Professor Ray’s suggestion, and shortly after the New York Times article ran, the Court issued a per curiam summarily reversing the Montana court. American Tradition Partnership v. Bullock, 132 S.Ct. 2490 (2012). Justice Breyer was joined by Justices Ginsburg, Sotomayor, and Kagan in dissent.

The Tulane Law Review would like to solicit responses to this latest Supreme Court decision, both the decision itself and the use of the per curiam opinion to effectuate it, in the light of Professor Robbins’ article on the subject.