Is the Rule Of Law Best Administered by Concurring Opinions?

A very interesting read indeed, Paul Lomio at Stanford‘s Legal Research Plus blog cites to an article by James Fowler and Yonatan Lupu called The Strategic Content Model of Supreme Court Opinion Writing. The authors, professors of political science at the University of California, San Diego, posit that the better supported or “grounded” opinions are concurring opinions. The article examines how the content of judicial opinions is as important as the outcome in terms of long-term impact and that concurring opinions tend to offer a more developed discussion and greater insight into the underlying reasoning employed.

Apparently, the position of the median justice has a greater impact on citations in the majority opinion than the majority justice’s own agenda. This suggests justices are more responsive to each other than to their political motivations.

It makes sense to me that concurring opinions produce better reasoning and support. There is little incentive to flesh out a unanimous decision. And a dissenting opinion creates the type of “either or” mentality that raises roadblocks rather than constructive discussion. Perhaps the more congenial “concurrence” encourages dialogue and exploration, which in turn facilitates a well-thought-out analysis. So read those concurring opinions closely – there may be more than meets the eye.


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