In law, a concurring opinion is in certain legal systems a written

opinion An opinion is a judgement, viewpoint, or statement that is not conclusive, as opposed to facts, which are true statements. Definition A given opinion may deal with subjective matters in which there is no conclusive finding, or it may deal ...

by one or more

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

s of a

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their 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 A plurality decision is a court decision in which no opinion received the support of a majority of the judges. A plurality opinion is the judicial opinion or opinions which received the most support among those opinions which supported the pl ...

. 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 Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...

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 an openness to certain types of test cases that would facilitate the development of a new legal rule, and in turn, such a 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). Concurring opinions may be held by courts but not expressed: in many legal systems the court "speaks with one voice" and thus any concurring or dissenting opinions are not reported. Some view concurring opinions as "unnecessary confusion" that "encourage litigation" and create "legal clutter."

Types of concurring opinions

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'' (the case's ultimate outcome in terms of who wins and who loses) but not with the reasoning of the majority opinion (''why'' one side wins and the other loses).

Concurring opinions by region

In some courts, such as the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

, 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 Supreme Court of California is the Supreme court, highest and final court of appeals in the judiciary of California, courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly ...

, 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). In some jurisdictions (e.g.,

California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...

), the term may be abbreviated in certain contexts to conc. opn.

Terminology at the various courts

*At the

International Court of Justice The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...

, the term "separate opinion" is used and judges can also add declarations to the judgment. *The term concurring opinion is used at the

. *The

European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...

uses the term concurring opinion and calls both concurring and dissenting opinions separate opinions. Judges very rarely add declarations to the judgment.According to Professor Frédéric Rolin, ECHR judges added declarations in only two cases: ''Papon v. France'' (25 July 2002) and ''Martinie v. France'' (12 April 2006)
"Note sous CEDH 12 avril 2006, Martinie c/ France", 18 April 2006
) *Historically the

Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...

of the United Kingdom gave each an opinion of their own and no aggregated judgment was provided. However, the new

Supreme Court of the United Kingdom The Supreme Court of the United Kingdom (initialism: UKSC) is the final court of appeal for all civil cases in the United Kingdom and all criminal cases originating in England, Wales and Northern Ireland, as well as some limited criminal cases ...

allows for such aggregated judgements, and it is theoretically possible for such concurring opinions to now arise.

Notable concurring opinions

* ''

Whitney v. California ''Whitney v. California'', 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a clear and present danger to society.''Whitney v. California''274 U.S. 357 ...

'' (1927): Justice

Louis Brandeis Louis Dembitz Brandeis ( ; November 13, 1856 – October 5, 1941) was an American lawyer who served as an Associate Justice of the Supreme Court of the United States, associate justice on the Supreme Court of the United States from 1916 to ...

, free speech, became precedent 50 years later in '' Brandenburg v. Ohio''. * '' Escola v. Coca-Cola Bottling Co.'' (1944): Justice

Roger Traynor Roger John Traynor (February 12, 1900 – May 14, 1983) was the 23rd Chief Justice of California (1964–1970) and an associate justice of the Supreme Court of California from 1940 to 1964. Previously, he had served as a Deputy Attorney General ...

, strict liability for manufacturers, became precedent 19 years later in ''

Greenman v. Yuba Power Products, Inc. ''Greenman v. Yuba Power Products, Inc'', was a California torts case in which the Supreme Court of California dealt with the torts regarding product liability and warranty breaches. The primary legal issue of the case was to determine whether a m ...

'' * '' Youngstown Sheet & Tube Co. v. Sawyer'' (1952): Justice

Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an associate justice of the U.S. Supreme Court from 1941 until his death in 1954. He had previously served as Un ...

, definitive test for the limits of Presidential power. * ''

Katz v. United States ''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the Fourth Amendment to the U.S. Constitution. The ruling ex ...

'' (1967): Justice

John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish hi ...

, formulated the "reasonable expectation of privacy" test for determining the reasonableness of a search.

References

{{DEFAULTSORT:Concurring Opinion Judicial legal terminology Common law legal terminology de:Sondervotum pl:Votum separatum