Concurring Opinion

In courts where more than one judge, or “justice,” hears cases, such as a state or the federal Supreme Court, or some appellate courts, a majority agreement is required to make a ruling one way or another. In the event some of the judges agree with the decision of the majority, though for different reasons, those judges may write a “concurring opinion,” which describes the basis for their decision. In this case, the written opinion joined by the greatest number of judges is called a “plurality opinion.” To explore this concept, consider the following concurring opinion definition.

Definition of Concurring Opinion

Noun

  1. A written opinion filed by a judge which agrees with the majority decision, but which expresses his or her different reasons for the decision, or a different view of the facts of the case, or of the law.

Definition of Concur

Verb

  1. A group of people acting together to achieve a common result
  2. To express agreement

Origin

15th century Middle English concurren

Concurring and Dissenting Opinion

Although most people focus on the actual outcome of a Supreme Court or appellate court decision, the fact is, opinions matter. When a Supreme Court justice writes a concurring opinion, it signals he agrees with the ultimate decision made by the majority of the court, but not with the reasons the decision was reached. The justice writes his own rationale for the final decision, shining a light on another viewpoint. When multiple justices prepare concurring opinions, it is called a “plurality decision,” as a majority voted on the final judgment, but there were several reasons for the decision.

Because legal experts find it necessary to understand where there may be uncertainty regarding the law, which leads to instability in the justice system. For this purpose, both concurring and dissenting opinions are classified primarily as “liberal” or “conservative,” though they may be further broken down during research.

Use of Concurring Opinions

Attorneys often refer to majority opinions in the course of trying a case, which provides precedent, or a legal standard by which similar cases have been decided. Because they do not express the opinion of the majority of the court, concurring opinions are not legally binding, and cannot be referred to as such. Concurring opinions can, however, offer a view into the appellate court’s thought process in making its decision, and pave the way to viewing a current case differently. Some judges have an open mind when it comes to considering these opinions, and developing new legal rules as a result.

Creating Persuasive Precedent

Also known as “persuasive authority,” persuasive precedent is a legal opinion or writing that does not bind future cases to be decided in a particular manner, but that may be used to guide the decision making process in a current case. The judge writing a concurring opinion walks the reader through his rationale in making the decision, and in concurring with the majority opinion on a case. Persuasive precedent is often found in cases decided by peer or higher courts in other jurisdictions, military courts, tribal courts, administrative courts, and even lower courts.

This allows courts to rely on opinions and decisions reached in other jurisdictions that have previously dealt with a similar issue. Persuasive precedent may become binding precedent when it is adopted by a higher court.

Precedent Setting Concurring Opinion

The 1944 matter of Escola v. Coca-Cola Bottling Co. was brought before the Supreme Court to decide whether the Escola, the maker of bottles filled by Coca-Cola Bottling Co., should be held liable for an injury caused by an exploding faulty bottle. While the majority opinion of the Supreme Court upheld the lower court’s decision that Escola should pay because they were negligent, the case later became more popularly known for a concurring opinion written by Justice Roger Traynor.

Justice Traynor expressed the opinion that, rather than negligence, every manufacturer should be held to a rule of strict liability regarding the production of products that injure consumers. Traynor expressed his belief that public policy demanded that responsibility be placed where it would be most effective in reducing hazards to life and health, and in preventing defective products from reaching the marketplace.

Dissenting Opinion

While the majority opinion in a Supreme Court matter becomes binding law, any issue may result in a split decision. A justice who does not agree with the majority may still write an opinion, called a “dissenting opinion,” explaining why he does not agree, or how the case might be seen differently if the facts were slightly different. Once again, the dissenting opinion helps guide the decision making process in future cases, and may even plant the seed for overruling the majority opinion in the future.

Related Legal Terms and Issues

  • Concurring – Of the same opinion; in agreement.
  • Opinion – A statement prepared by a court or judge announcing the decision at the end of a trial.
  • Binding – Having power to bind or oblige; imposing an obligation.
  • Dissent – To express an opinion not in agreement with the commonly or officially expressed opinion; to differ in opinion; to withhold assent; to disagree.
  • Majority – A number larger than half of the total.
  • Public Policy – The often unwritten principles governing policy within a community of people.

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