Fife et al. on Concurring and Dissenting without Opinion

Madelyn Fife, Greg Goelzhauser, Kaylee B Hodgson, and Nicole Vouvalis (some of them, professors at Utah State University) have posted Noting Disagreement, which is forthcoming in the Journal of Supreme Court History:

We recover the lost history of concurring and dissenting without opinion on the U.S. Supreme Court. Although this practice has primarily been attributed to Justice Douglas, particularly his later decisions in tax cases, we trace its roots to the Court’s early years and demonstrate its consistent and sometimes frequent use through about the middle of the twentieth century. This article makes several contributions to the existing literature on opinion delivery practices. First, we discuss trends in the use of silent concurrences and dissents across time and justices using original data obtained from a manual review of every Supreme Court decision from its creation through OT 2014. Second, we offer a historical narrative that emphasizes the importance of institutional changes for understanding the rise and fall of this norm over time. Third, we emphasize the regular use of noting disagreement as an intermediate practice between silently acquiescing to majority positions, which characterized disagreement during the Court’s earlier years, to the proliferation of written concurrences and dissents in the modern era. Our empirical approach contributes to a growing body of quantitative historical research using comprehensive data collection efforts to gain analytical leverage over important questions concerning American legal history.