Concurring opinion

Legal and
judicial opinions

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their 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.

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 Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent and cannot be cited as such.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 as a form of 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 an openness to certain types of test cases that would facilitate the development of a new legal rule, and in turn, such a 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. (1944).[1][2]

Concurring opinions may be held by courts but not expressed: in many legal systems the court "speaks with one voice" and thus any concurring or dissenting opinions are not reported. Some view concurring opinions as "unnecessary confusion" that "encourage litigation" and create "legal clutter."[3]

  1. ^ Vandall, Frank J. (2011). A History of Civil Litigation: Political and Economic Perspectives. Oxford: Oxford University Press. p. 27. ISBN 9780199781096.
  2. ^ Goldberg, John C.P.; Sebok, Anthony J.; Zipursky, Benjamin C.; Kendrick, Leslie C. (2021). Tort Law: Responsibilities and Redress (5th ed.). New York: Wolters Kluwer. p. 981. ISBN 9781543821086. Retrieved 11 December 2021.
  3. ^ "Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation". The George Mason Law Review. Retrieved 2024-10-15.