Concurring opinion

Are written by justices who agree with the outcome or the decision in a case but disagree with the logic or the reasons for that decision. In short, although the outcome is acceptable to the concurring justice, the explanation for that result requires a separate opinion that outlines different reasons for the result.

A concurring opinion may clarify the outcome in the case and strengthen the result. Certainly it explicates the reasoning of the individual justice or justices. This is advantageous to the justice, and it may provide some comfort to the future litigant who relies on that separate opinion rather than the majority opinion for precedent. Such an opinion may also assist the development of legal doctrine if the majority opinion is unclear or confusing. However, a concurrence can also detract from the impact of the majority opinion, and even the threat of preparing such an opinion can cause the majority opinion writer to adjust the majority opinion to accommodate the position of the possible concurring justice.

Traditionally, justices were reluctant to invest their time and energies in such opinions since the result in the case was acceptable to them. However, recently there is an impression that justices are concurring with separate opinions more frequently. There has been some increase in the numbers and the ratio of majority opinions to concurring opinions at times during the past two decades, but these figures are not any higher now than several decades ago.

The potential problem, which began to surface more frequently in the past two decades, is the absence of any majority opinion. This is the extreme consequence of concurring opinions, as more and more members in the majority write a separate opinion. Such a proliferation of opinions leads to a lack of clear precedent and borders on the practice of seriatim opinions rendered by the Supreme Court when it began functioning in 1789. This approach, however, has not been predominant.

See also Plurality Opinions.

— William McLauchlan

Justices of the U.S. Supreme Court write concurring opinions on cases when they agree with the outcome of the majority opinion but disagree with the Court's reasons or explanations for the decision. In such a case a justice writes a separate concurring opinion, offering his or her own reasons about a decision with which he or she concurs, or agrees. On a few occasions, there have been so many concurring opinions in a case that there was no majority opinion of the Court. For example, in Regents of the University of California v. Bakke (1978), the Court decided the case by a vote of 5 to 4. However, eight of the justices wrote separate opinions, concurring in part and dissenting in part from the decision. As a result, there was no distinct opinion of the Court in this case. Rather, Justice Lewis Powell wrote an opinion announcing “the judgment of the Court,” rather than an opinion for the majority of the Court. Cases decided without a clearcut majority opinion written for the Court do not establish clear precedents.

See also Majority opinion; Opinions of the Supreme Court; Plurality opinion

The noun has one meaning:

Meaning #1: an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning

Legal opinions
Judicial opinions
Majority opinion Dissenting opinion Plurality opinion Concurring opinion Memorandum opinion This box: view • talk • edit

In law, a concurring opinion is a written opinion by some of the judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.

There are several kinds of concurring opinion. A simple concurring opinion arises when a judge joins the decision of the court but has something to add. Concurring in judgment means that he agrees with the decision but not with the reasoning.

In some courts, such as the Supreme Court of the United States, the majority opinion may be broken down into parts, and then concurring justices may state that they join some parts of the majority opinion, but not others, for the reasons given in their concurring opinion.^[1] In other courts, such as the Supreme Court of California, the same justice may write a majority opinion and a separate concurring opinion to express additional reasons in support of the judgment (which are joined only by a minority).^[2]

As a practical matter, concurring opinions are slightly less useful to lawyers than majority opinions. Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent and cannot be cited as such. But concurring opinions can sometimes be cited on persuasive precedent (assuming the point of law is one on which there is no binding precedent already in effect). The conflict in views between a majority opinion and a concurring opinion can assist a lawyer in understanding the points of law articulated in the majority opinion. Occasionally, a judge will use a concurring opinion to signal that he or she is open to certain types of "test cases" that would facilitate the development of a new legal rule, and in turn, such an concurring opinion may become more famous than the majority opinion in the same case. A well-known example of this phenomenon is Escola v. Coca-Cola Bottling Co. (1963).

In some jurisdictions (e.g., California), the term may be abbreviated in certain contexts to conc. opn.

Terminology at the various courts

• At the International Court of Justice the term separate opinion is used and judges can also add declarations to the judgment.
• The term concurring opinion is used at the Supreme Court of the United States.
• The European Court of Human Rights uses the term concurring opinion and calls both concurring and dissenting opinions separate opinions. Judges very rarely add declarations to the judgment.^[3]
• The Law Lords of the United Kingdom give each an opinion of their own. No aggregated judgment is provided.

References

1. ^ See, e.g., McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
2. ^ See, e.g., Cheong v. Antablin, 16 Cal. 4th 1063 (1997). Justice Ming Chin's concurrence began with these words: "Obviously, I concur in the majority opinion I have authored. I write separately to state another reason to reject plaintiff's argument."
3. ^ According to Professor Frédéric Rolin, ECHR judges added declarations in only two cases: Papon v. France (25 July 2002) and Martinie v. France (12 April 2006) ("Note sous CEDH 12 avril 2006, Martinie c/ France", 18 April 2006)

This case law article is a stub. You can help Wikipedia by expanding it. v • d • e

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)