Arkansas Law Review Article on the Dixon Rule

24 02 2012

The newest edition of the Arkansas Law Review includes a comment written by Christopher Stevens on the Dixon Rule.  The Dixon Rule is “a tool used by Arkansas appellate courts to dispose of an issue without deciding that issue because of deficiencies in the way the issue was presented in the appellate brief.”  Christopher Stevens, Comment, Deciding Not to Decide: A Short History of the Dixon Rule and a Way Forward, 64 Ark. L. Rev. 1121 (2011).  Stevens’ comment focuses on criticisms of the Rule by showing indefensible and inconsistent uses and phraseology of the Rule.

First, Stevens notes that the Rule was developed in 1977 yet was used relatively sparingly until the mid-1990’s.  Until the mid-90’s, the Rule was used in less than three percent of all opinions.  Since then, the Arkansas appellate courts have rapidly increased their usage of the Rule.  In 2010, the Dixon Rule was cited in over eleven percent of all opinions.  One in every ten opinions involves an appellate decision avoiding the merits of an issue because they find the issue undeveloped or supported by reasoning or law.

Second, Stevens writes about the importance of the judiciary addressing the issues  and even argues that the democratic legitimacy of the judiciary system is enhanced when the court strongly responds to the arguments of the parties before it.  A responsive court also provides the public with more notice of the law and how it will adjudicate certain claims.  Finally, Stevens argues the judiciary leaves participants unfulfilled and upset when their claims are not all adjudicated on the merits.

Stevens also looks at cases citing the Dixon Rule and the various permutations it has used from failure to use convincing authority, failure to cite legal authority for the proposition, or both.

Finally, Stevens most impressive contribution to the issue, comes in his in-depth analysis of the Dixon Rule’s usage in several cases.  Most incredibly, in Walters v. Dobbins, 2010 Ark. 260, the Arkansas Supreme Court refused to address an issue of free speech under Article 2 Section 6 of the Arkansas Constitution.  The Court stated that the appellant only cited to federal case-law and failed to cite any Arkansas case-law.  Essentially, the Court was refusing to address an issue because it was of first impression.  How incredible is it that the high court refuses to address the claim because it has not been addressed before in Arkansas.  Additionally, in Davis v. State, 2009 Ark. 478, the Arkansas Supreme Court invoked the Dixon Rule to avoid addressing a claim about the merits of the Skip Rule.  The Court stated that there was no citation to authority or convincing argument.  Stevens noted that the appellant’s argument on the issue was over a page and contained citations to three cases on the issue. 

Stevens eloquently argues for a consistent standard and a greater willingness of the courts to address issues for the good of society to know the law and for the parties before the court to feel the process was meaningful.


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