How can anyone not read with concern Justice Saxe’s report of the new “batting average” metric relating to dissenting opinions recently imposed upon members of the First Department judiciary for purposes of re-certification? David Saxe, Chief Judge’s Inquiry Into Dissents Intrudes on Judicial Independence, NYLJ (1/23/19) (“When David Saxe, then age 74, wanted to continue as an associate justice at the Appellate Division, First Department, he was asked for his batting average.”)
The “batting-average” metric is computed by examining the performance of a dissenting opinion: if the dissent was adopted by the Court of Appeals, whether by affirmance or reversal, then the dissent was meritorious. If the dissent was ignored, then it was an unnecessary waste of the court system’s time. The dissent “batting-average” rationale imposed upon our intermediate appellate courts in New York is computed using the devil’s arithmetic; it is flawed and dangerous.
