Concurring opinion
Encyclopedia
In law, a concurring opinion is a written opinion
by one or more judge
s 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 the judge agrees with the majority decision (that is, the case's ultimate outcome) but not with the reasoning of the majority opinion.
In some courts, such as the Supreme Court of the United States
, the majority opinion may be broken down into numbered or lettered 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. 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).
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 Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent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 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.
(1944).
In some jurisdictions (e.g., California
), the term may be abbreviated in certain contexts to conc. opn.
Opinion
In general, an opinion is a subjective belief, and is the result of emotion or interpretation of facts. An opinion may be supported by an argument, although people may draw opposing opinions from the same set of facts. Opinions rarely change without new arguments being presented...
by one or more judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s of a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
which agrees with the decision made by the majority of the court
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
, 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
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
.
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 the judge agrees with the majority decision (that is, the case's ultimate outcome) but not with the reasoning of the majority opinion.
In some courts, such as the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, the majority opinion may be broken down into numbered or lettered 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. In other courts, such as the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
, 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).
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
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
and cannot be cited as such. But concurring opinions can sometimes be cited as a form of persuasive precedent
Persuasive precedent
Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...
(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.
Escola v. Coca-Cola Bottling Co.
Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 , was a decision of the Supreme Court of California involving an injury caused by an exploding bottle of Coca-Cola...
(1944).
In some jurisdictions (e.g., California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
), the term may be abbreviated in certain contexts to conc. opn.
Terminology at the various courts
- At the International Court of JusticeInternational Court of JusticeThe International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
the term separate opinion is used and judges can also add declarationDeclarationDeclaration may refer to:* Declaration , specifies the identifier, type, and other aspects of language elements* Declaration , when the captain of a cricket team declares its innings closed...
s to the judgment. - The term concurring opinion is used at the Supreme Court of the United StatesSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. - The European Court of Human RightsEuropean Court of Human RightsThe European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
uses the term concurring opinion and calls both concurring and dissenting opinions separate opinions. Judges very rarely add declarations to the judgment. - The Law LordsJudicial functions of the House of LordsThe House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
of the United Kingdom give each an opinion of their own. No aggregated judgment is provided.