law school: concurring opinion

[hambokins]

can someone explain ...

just what is the legal significance of a concurring opinion in a case?

the point being, sine qua non, to stroke judicial ego.

Comments

[01100001]

Not necessarily ego stroking. Suppose the judge agrees in the outcome but not in the line of reasoning the majority used to arrive at the outcome? Should he keep silent? What if the judge thinks the line of reasoning the majority uses could cause damage -- say because it could be more easily extended in detrimental ways. Should he still keep silent? Or should he attempt to counteract whatever illness he sees in the majority opinion by offering his own competing reasoning

[hambokins]

so can a concurrent holding be cited as mandatory authority, even if it differs significantly in content from the majority opinion?

[01100001]

The game is persuasion. There is very little that is really mandatory. Judges have many tools to justify avoiding what might seem like a mandatory rule.

That said, a concurrent opinion can be cited as authority, though I wouldn't say mandatory authority. The fewer the number of judges who sign onto the majority opinion the more authority any concurring opinions will tend to have. Additionally, a scintillatingly brilliant concurring opinion may have more persuasive value even if many of the other judges sign onto the majority opinion.

Also, it is important to consider how the majority reasoning and the concurring reasoning interacts with (i.e., applies to) the facts of the case at hand.

[01100001]

"Judges have many tools to justify avoiding what might seem like a mandatory rule."

To be clear. I do not mean to imply that judges are unconstrained. Quite the contrary. Judges are constrained because they need to be persuasive too so that people will follow their opinions. So a judge can't just go of the deep end and start declaring new idiosyncratic law.

Nonetheless, there is room for maneuvering within the constrained area and this room allows judges to reach decisions of law on which reasonable people can differ (quite forcefully at times) as to the correctness.

[jaiser]

I'd only add that, if prepping an argument or writing a paper, I wouldn't rely on the concurrent opinion as governing law. It can be used persuasively, but judges aren't bound by stare decisis to use it as they are with the actual opinion.