![handle is hein.journals/tulr86 and id is 1209 raw text is: TULANE
LAW REVIEW
VOL. 86 JUNE 2012 No. 6
Hiding Behind the Cloak of Invisibility:
The Supreme Court and Per Curiam Opinions
Ira P. Robbins*
Per cunam--literally tanslated from Latin to by the court-is defmed by Black's Law
Dictionary as [a]n opinion handed down by an appellate court without identiling the
irdividual judge who wrote the opinion. Accordngly the author of a per cunam opinion is
meant to be institutionalrather than individual, attibutable to the court as an entity rdther than to
a single judge The United States Supreme Court issues a significant number of per cunam
dipositions each Term. In the first six years of ChiefJustice John Robertsks tenure, almost nine
percent of the Courth full opinions were per cuinans. The prevalence of issuing unattibuted
opinions raises questions ofits inpact on judicial accountability and the development ofthe law
This Article argues that the per cwam is a misused practice that is at odds with the
mdividualized nature ofthe American common law system, frustrating efforts to hold mdividual
judges accountable and inzhibiting the development ofthe law Thus, the use ofthe per cunam in
courts oflast resort, includng de facto courts oflast resort, should be limited to a narrow class
of opinions in which the use of fonnulaic, boilerplate language has already extinguished any
sense ofindividuality Opions containing language that is more expansive must be attrbuted
m order to serve as a check on judges' fidelity to the law and to enable the public and the legal
profession to formulate an accurate understandig of the law
* C 2012 Ira P. Robbins. Barnard T. Welsh Scholar and Professor of Law and
Justice, American University, Washington College of Law. A.B. University of Pennsylvania;
J.D. Harvard University. I am grateful to my colleagues Dan Marcus, Steve Vladeck, and
Steve Wermiel for their perennial good humor and willingness to assist-in this instance by
providing their insights on Supreme Court decision making in general, as well as on the
specific issues associated with my thesis; to my superb and indispensable research
assistants-Jay Curran, Giulia Di Marzo, Zachary Haugen, Chantal Hernandez, Tracey Little,
Alex Lutch, and Libby Ragan-whom I consider to be my colleagues in so many ways; and
to the American University Law School Research Fund, for providing summer financial
support.
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