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Dissenting Without Opinion

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. NMissC says:

    I was unaware this was a common practice at the U..S. Supreme Court. In the last 20 or so years, it has become a common (and annoying) thing at the Mississippi Supreme Court, with all kinds of mysterious variations (such as “dissenting in part.” What part? They don’t say). Some justices do this a lot, and some not at all. I’ve heard from former clerks and staff (off record) explanations about judges not wanting to hold up decisions while they write or that there’s so much work to do (I don’t believe either reason).

    I’ve been gripping about this in posts about the Mississippi court for about a year on my blog. There have been cases that went 5-4 where one or two majority votes concurred with the decision only. Where does that leave the majority opinion?

    Returning to your subject– yes, I think this is strange. I’m curious how much of the effect relates to how closely the day-to-day actions of the U.S. Supreme Court are followed now, and the expectations that creates.

  2. Peter McCormick says:

    What I have always found even more intriguing is the “dubitante” reasons — crudely, “I am not absolutely sure that this is right, but I am going to sign on to it anyway.” Somewhat dated in its use as well, but intriguing; I am not sure how happy I would be to have a colleague signing on with that. Jason Czarnezki had an article on this in 39 Akron Law Review (2006).

  3. Ken says:

    Gerard asks “Are there any other possible explanations?”

    I counter with “Are there any other sensible alternatives?” Isn’t there some middle ground between simply saying “I disagree” and writing a major Law Review article supporting your disagreement?

    It seems to me that the construction of dissents has become a monumental task. It appears that a pithy dissent is not valued. Instead it appears we value the scholarship, which IMO a Justice of the Supreme Court should no longer feel obligated to demonstrate. I cite as an example the long, detailed, and well-supported dissent of Justice Stevens in the Citizens United case.

    Whether you disagree with his dissent is a side issue. There is no doubt that it is long, detailed, and well supported. However, what I doubt is whether all that detail and supporting information is effective towards his objective, which is (presumably) going on record with his disagreement with his colleagues and explaining why.

    I think that objective would have been served better by writing a few pages (instead of the 90), containing the introductory paragraphs prior to Roman numeral I and the summary paragraphs of Roman numeral V. In my “middle ground” suggested above, I would call this “explaining in simple English the reasons for my disagreement.”

  4. Gerard Magliocca says:

    I agree. Holmes’ dissent in Lochner is one of the best and it’s quite short.

  5. peter says:

    this is discussed in Robert Post’s article, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” 85 Minnesota Law Review 1267 (2001).

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