The Corrective Careers of Concurrences and Dissents

Abstract

Dissenting opinions and many concurring opinions include nonbinding statements, rationales, and explanations. What compels judges to add their losing arguments to the vast deposit of rejected legal propositions? This essay argues that such opinions, although lacking in compulsory application and effect, contribute to our fund of knowledge, diversify our perspectives, and shape the trajectory of the law as it is embedded in a textual network of cases. Judges are dialogic, discursive actors who, by framing and molding legal precedents, participate in the transmission of cultural postulates and practical solutions to future generations with unforeseen conflicts. Judges are in this sense the conduits through which pass selectively retained principles and gradual modifications in the rules that govern society. Understanding why judges author concurring or dissenting opinions that do not obtain as law requires some historical mapping; thus, the essay begins by supplying a brief account of the opinion practices of the United States Supreme Court. It then discusses why nonbinding opinions such as concurrences or dissents are constructive. The success of these writings, some of which have been vindicated over time, owes to their ability to shape the character and facilitate the development of American constitutional law. The essay concludes by discussing how such opinions reflect and enact the common-law theories on which the American legal system has flourished, and finally by celebrating concurring and dissenting opinions as an intricate and important form of judicial service to the legal profession.

Keywords: Common Law, Concurrence, Dissent, United States Supreme Court, Judges, Law