Skip to Content

Concurring opinion

« Back to Glossary Index

Types of concurring opinions:
– Simple concurring opinion: judge agrees with the court decision but adds something
– Concurring in judgment: judge agrees with the outcome but not the reasoning
– Partial concurrence: judge agrees with some parts of the majority decision
– Special concurrence: judge agrees with the outcome but for different reasons
– Unanimous concurrence: all judges agree on the outcome but have different reasons

Concurring opinions by region:
– Supreme Court of the United States: justices may join parts of the majority opinion
Supreme Court of California: justice may write both a majority and concurring opinion
– California courts: abbreviation used for concurring opinion is conc. opn
– International Court of Justice: separate opinions and declarations can be added
– European Court of Human Rights: uses concurring opinion and separate opinions

Terminology at the various courts:
– International Court of Justice: separate opinion and declarations
– Supreme Court of the United States: uses concurring opinion
– European Court of Human Rights: concurring and dissenting opinions as separate opinions
United Kingdom Law Lords: each provided an individual opinion
– Supreme Court of the United Kingdom: allows aggregated judgments now

Notable concurring opinions:
– Whitney v. California (1927), Justice Louis Brandeis, free speech
– Escola v. Coca-Cola Bottling Co. (1944), Justice Roger Traynor, strict liability
– Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Robert H. Jackson, limits of Presidential power
– Katz v. United States (1967), Justice John Marshall Harlan II, privacy test
– Brandenburg v. Ohio, Greenman v. Yuba Power: Precedents set by earlier concurring opinions

– Book by Frank J. Vandall on civil litigation history
– Book by Goldberg, Sebok, Zipursky, Kendrick on Tort Law
– Case law references: McConnell v. Federal Election Commission, Cheong v. Antablin
– ECHR cases with added declarations: Papon v. France, Martinie v. France

Concurring opinion (Wikipedia)

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court 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.

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 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.

« Back to Glossary Index