Sunday, February 17, 2008

Judge Cudahy

Readers of my blog know that I admire this judge, although I have never met him and will never have a case before him. I was looking at some of my old savings from 2005, and came across this article from, I think, Depaul Law Review, which full article gave a profile on each Seventh Circuit judge (circa 1995 or so). I had a Seventh Circuit case pending at the time.

C. Richard D. Cudahy
Richard D. Cudahy, 67, is a 1955 graduate of Yale Law School. After serving as a law clerk for the Second Circuit and a lawyer at the State Department, he was an associate at Isham, Lincoln & Beale in Chicago from 1957-60, and he was managing partner of the Washington, D.C., office of Isham, Lincoln & Beale from 1976 to 1979. During the intervening years, he served as Chief Executive Officer of Patrick Cudahy Inc., an 800-employee firm, and he practiced law with Godfrey & Kahn in Milwaukee. He was also a commissioner and chairman of the Wisconsin Public Service Commission. He has taught law at several law schools and was active in politics for the Wisconsin Democratic party, serving as party chairman and as a candidate for Attorney General. Judge Cudahy was appointed to the Seventh Circuit by President Carter in 1979.
Judge Cudahy has been one of the court's most prolific writers. He files separate concurring or dissenting opinions far more often than the court's other members, and he writes the court's opinions more frequently than many of the other judges. n213 Judge Cudahy writes opinions for the court in a direct and pointed style, characterized by most lawyers as scholarly. His writing is uncomplicated
[*737] without being simplistic and it is notable for its clarity. Judge Cudahy usually begins by stating the issue before the court, summarizing the treatment given the issue in the court below, and announcing the disposition of the case. He then presents the facts as developed in the record, with appropriate deference to the fact-finding province of the district court. Next, Judge Cudahy almost invariably turns to a practical exposition of the controlling law, liberally salting the text with citation of precedent and other authority. He makes ample use of explanatory footnotes but he is rarely given to lengthy discourse on the law's history or its underlying philosophy unless the point is essential to the court's decision.
His opinions' treatment of the applicable law generally leads to a straightforward application of the law to the facts of the case. Before concluding, he often -- but not always -- will give attention to the most important arguments of the losing side, further explaining the basis of the decision. n214 Judge Cudahy's writing is evenhanded and temperate, neither displaying nor evoking passion or notoriety. This basic sturdiness of style is considerably easier to appreciate than it is to achieve. Posing few obstacles to the reader, Judge Cudahy's opinions usually accomplish what they set out to do -decide the case before the court -- and incrementally advance the law without regard to generalized theories or activist agendas. In contrast to Judge Cudahy's established reputation as a frequent dissenter, other judges of the court dissent from Judge Cudahy's majority opinions at no more than an average rate. n215
Although almost any of Judge Cudahy's published opinions would provide a good example of his style and care, some cases illustrate particularly well his skill for resolving difficult issues. In FMC Corp. v. Capital Cities/ABC, Inc., n216 the court reversed the district court's ruling that the plaintiff defense contractor could not state a claim against a television network for conversion of the contractor's confidential documents. n217 Judge Cudahy's opinion for the panel carefully sorted through a choice of law issue and deftly harmonized the defendant's important First Amendment concerns with the plain [*738] tiff's need for the information allegedly pilfered from its files. n218
In Merk v. Jewel Food Stores, n219 Judge Cudahy wrote the majority opinion, withstanding a lengthy and caustic dissent by Judge Easterbrook. n220 The court reversed a judgment entered in the defendant's favor by Judge Posner, who had presided over a jury trial in the district court. n221 Judge Cudahy's opinion held that oral agreements secretly negotiated between the company and the union did not override a collective bargaining contract, noting "the grave dangers posed by a back room deal that is secretly negotiated between union officials and company management without the knowledge or consent of the union rank and file." n222 This decision permitted approximately 15,000 former food store employees to sue the company for back pay and benefits under the collective bargaining agreement. n223 Both the opinion and the dissent appeared thoroughly researched.
Judge Cudahy does not necessarily jump at the chance to resolve an important question if the case can be decided without doing so. Judge Posner criticized Judge Cudahy's majority opinion in a separate concurrence in Martin v. Consultants & Administrators, Inc., n224 writing that the court should have used the case "as a vehicle for clarifying issues that have been a recurrent source of uncertainty and confusion;" n225 that is, the distinctions between self-concealing fraud and active concealment of an underlying fraud, and equitable estoppel and equitable tolling. The two scholarly opinions reached the same result for the case before the court, but Judge Cudahy's principal opinion was content to decide the case on narrow grounds and not to resolve the other issues.
Quite recently, Judge Cudahy wrote for a unanimous panel in Great Lakes Dredge & Dock Co. v. City of Chicago, n226 one of the many cases arising out of the Chicago flood of April of 1992. The city's contractor, Great Lakes, was sued in state court by thousands
[*739] of plaintiffs, including individuals, businesses, and the city, who alleged that the contractor had negligently installed pile clusters in the Chicago River, causing a break in a subterranean freight tunnel that sent millions of gallons of river water into basements of many Loop buildings. n227 The contractor filed a complaint in district court, claiming the existence of federal admiralty jurisdiction and seeking the benefit of a statutory limitation of liability for vessel owners. n228 The city successfully moved to dismiss the action in the district court but the court of appeals reversed, concluding that the contractor's alleged negligence was within admiralty jurisdiction. n229 The scholarly opinion traces the origins and development of the somewhat arcane field of admiralty, carefully grounding the court's holding in the statutes and cases, and methodically applying a threestaged inquiry to the specific facts of the case. The court remanded the case to the district court for further proceedings relative to the limitation of liability, which Judge Cudahy wryly noted was "the substantive law upon which Great Lakes anchored its claim." n230
While Judge Cudahy is to be commended for his ability to produce opinions of this quality with reasonable speed, he can also be criticized for contributing to the court's backlog. Because Judge Cudahy is more apt than anyone else on the court to voice objections to opinions circulated from other chambers, he has been known to delay other judges in issuing their final opinions. Judge Cudahy's own opinions tend to be longer and more academic in style, and it often takes him longer to issue opinions than his colleagues. n231 Most of the opinions written by Judge Cudahy and reviewed by the Council were issued within six months after oral argument. On occasion, however, Judge Cudahy takes an inordinate amount of time to produce a decision. n232 In recent years, his opinions have revealed a tendency to request supplemental briefing of particular issues, especially jurisdiction. In all, however, Judge Cudahy's contribution to the court's backlog is small. The Council views the delay attributa [*740] ble to Judge Cudahy's separate opinions as worthwhile.
Judge Cudahy prepares intensely for oral argument, requiring detailed bench memos from his law clerks. He often discusses a case at length with his clerks before argument, and his opinions reveal independent research of the issues briefed (or not briefed) by the parties. During oral argument he is consistently engaged but shows an affable, calm style. Appellate advocates report that he is courteous from the bench, raising questions when they are important to him but not otherwise speaking. His questions reflect thorough preparation and an understanding of the issues. As he does when he writes opinions, Judge Cudahy's performance at oral argument also shows self-confidence and an independence from the rest of the court.
As is probably true of many appellate courts, there are a number of judges on the Seventh Circuit bench who disdain dissent, seeking consensus, believing it is important for the court to speak with one voice. Judge Cudahy is not among them. Unlike many of his colleagues, Judge Cudahy will refuse to join in an opinion with which he has serious reservations, whether he differs with the majority's result or its reasoning; hence his prodigious total of separate opinions, both concurrences and dissents.
Judge Cudahy also has come to be perceived by the bar as somewhat ideologically distanced from his colleagues on the court. To some, this perception raises a question as to the extent of Judge Cudahy's influence on the court when he must compete for a colleague's deciding vote. His dissents have grown shorter and pithier, though usually not biting. n233 But Judge Cudahy can be biting when Chief Judge Posner or Judge Easterbrook is on the other side, as in Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd. n234
The Council believes that published dissents and separate concurrences are useful instruments in the explication and advancement of the law. Judge Cudahy has issued numerous important and effective
[*741] separate opinions, n235 and he has also played an important role in the court by writing majority opinions that narrow overly-broad opinions issued by other judges. n236 Judge Cudahy's record -- whether speaking for the court, concurring, or dissenting -- reflects a substantial contribution to the law and the court. He continues to be an excellent judge.