Wednesday, April 12, 2017

Friedman et al. on Concurrences

Thomas B. Bennett, Kellogg, Huber [et al.]; Barry Friedman, New York University School of Law; Andrew D. Martin, University of Michigan; and Susan Navarro Smelcer, Emory University, have posted Divide & Concur: Separate Opinions & Legal Change, which is forthcoming in Cornell Law Review:
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions, is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what it is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the first time: the “pivotal” concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority’s rule in the case. Under the Supreme Court’s “rule of five,” lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case.