Concurrence, Posner-style: ten ways to look at the concurring opinions of Judge Richard A. Posner.

• Author: Blomquist, Robert F.

1. Introduction II. The Nature of Concurring Opinions A. Background B. Some Traditional Views on Concurring Opinions C. Recent Takes on Concurring Opinions III. Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner A. Statistics B. Different Ways to Look at Posner's Concurrences 1. Posner as Congressional Adviser: Reflections of His Far-Reaching Intellect and Energy 2. Posner as Advocate of Law and Economics: His Leitmotif 3. Posner the Institutional Critic: His Concern with Core Competencies, Boundaries, and Purposes 4. Posner as Nitpicker: Two Views a. Posner is a Nitpicker b. Posner is Not a Nitpicker 5. Posner as Weaver of Hypotheticals and Wordplay: The Law Professor as Judge 6. Posner the Great: Of Finding and Cutting Judicial Gordian Knots 7. Posner as Reader and Interpreter of Statutes: Searching for Pragmatic Construction 8. Posner's Concerns About Standards of Appellate Review: Judging Lower-Level Decision-Makers 9. Posner Speaking Frankly: Bracing Directness as a Stylistic Technique 10. En Banc Posner: Adding His Two-Cents IV. Some General Observations and Insights A. Judge Posner's Evolving Style: The Strategic Inspiration of Consubstantiality B. The Aesthetics of Judicial Concurring Style V. Conclusion I. INTRODUCTION

   While a significant body of legal scholarship has emerged on appellate judicial opinion style, (1) little systemic study has been given to examining the nature of modern American concurring opinion style. Style is an ambiguous and eclectic concept, and the opinion style of Judge Richard A. Posner, former Chief Judge of the United States Court of Appeals for the Seventh Circuit, and oft-mentioned candidate to become a Justice of the Supreme Court of the United States, is worth trying to delineate and to understand. (2)

   In a series of three previous articles, I analyzed Judge Posner's general opinion style during his "rookie season" as a federal appellate court judge, (3) Posner's inchoate dissenting opinion style over the course of his first decade on the court of appeals, (4) and his maturing dissenting opinion style in his later years on the bench. (5) In this Article, I turn to Judge Posner's concurring opinion style during his first quarter century of appellate judging.

   The structure of the remainder of this Article, before my conclusion, is as follows. First, in Part II, before taking up Judge Posner's concurring opinions, I probe for a working description of the nature and motivations for modern American concurring judicial opinions by looking at previous legal scholarship and exemplars of judicial concurrence. (6) In Part III, I analyze the published concurring opinions written by Judge Posner during 1981-2006--his lifetime tenure to date on the federal appellate bench. (7) Finally, in Part IV, I offer some general observations about Judge Posner's concurring opinion style, and consider some implications of my study for better understanding the form and function of American concurring judicial opinions. (8)

2. THE NATURE OF CONCURRING OPINIONS

   1. Background

      Interestingly, and ironically, the etymology of the word concur starts in the fifteenth century as meaning "to run together, assemble, meet, rush together in hostility" and "[t]o run together violently or with a shock; to come into collision; to collide." (9) Over the ensuing centuries concur softened in meaning to also encompass "flow[ing] together, as streams (material or immaterial)," "[t]o converge and meet," "[t]o combine in action, to co-operate," and "[t]o agree in opinion." (10) The cognate word concurrence developed a few centuries after the first English usage of the word concur. (11) Concurrence came to mean "[r]unning together, confluence; meeting," "[o]ccurrence together in time, of events or circumstances; coincidence; a juncture," and "[c]ombination in effecting any purpose or end, or in doing any work; co-operation of agents or causes." (12)

      Indeed, a concurring judicial opinion can be testy--or even downright hostile--to the majority opinion from which it reacts; this is, perhaps, most probable in the case of a partial dissent and a partial concurrence combined in the same opinion. In the case of a pure concurring opinion, however, we would expect the opinion to be congenial to the opinion in chief of the majority or plurality--although this can probably not be presumed; perhaps the concurrence agrees with the result or the reasoning of the court but takes the principal opinion of the court to task for not going far enough in expanding the holding, or for the opposite reason of going too far.

      The motivation of an appellate judge in writing a dissenting opinion--or even a partial dissent--is intuitively obvious (i.e., a dissenting opinion disagrees to one degree or another with the holding, reasoning, or combined holding/reasoning of the principal opinion in a case). (13) The reason why a judge would go to the trouble of writing a concurring opinion--an opinion in agreement or partial agreement with the chief opinion of a court--is harder to fathom. One must assume that there are costs and benefits of writing a separate concurrence. Costs include extra time and effort in the context of a pressing docket of cases and an expectation that each judge is responsible for writing a fair share of the opinions of the court, alienation or possible alienation of one's judicial colleagues, and opening one's concurring opinion to outside criticism by commentators and the press. What might the broad theoretical benefits be of writing a separate concurring opinion? No doubt there are reasons for writing a concurring opinion which overlap with writing a dissenting opinion: self-expression, advancing the truth, competing with other judges and academics in the legal marketplace of ideas, improving the majority's final work product by forcing the prevailing side to deal with points raised in the concurrence, and mental honing of a judge's agreement and disagreement with the majority's approach to a particular legal area (e.g., freedom of the press issues). (14) Moreover, one type of dissenting opinion, termed a "collaborative" dissent by Professor Charles Fried, is closely related to a concurring opinion since both attempt to work with the premises and reasoning of the majority's approach as a cooperative effort to further shape the development of future legal doctrine. (15) In contradistinction, no cooperation is apparent in the case of the other kind of dissent, described by Fried as "oppositional" dissent. (16)

   2. Some Traditional Views on Concurring Opinions

      As pointed out in Robert A. Leflar's Appellate Judicial Opinions, the use of concurring opinions by appellate judges "varies from court to court and from judge to judge." (17) Most legal observers probably share the view that concurring opinions should not be routinely issued and should "respect the doctrine of stare decisis" while suggesting "an evolution of legal principles required by changed conditions and concepts." (18)

      One author has suggested two scenarios that justify the writing of thoughtful concurring opinions. First, "[u]pon occasion, the opinion of a majority will not actually be erroneous, yet it will verge upon error by straining a legal doctrine to its utmost." (19) In this context, "a considered and well-stated concurring opinion can be of value by warning that the doctrine must not be pressed too far." (20) Second, "[i]n other instances, a majority may announce a doctrine which is sound when applied to the facts before the court, but which would be wholly unsound if given a general application." (21) In this closely related instance, "a timely concurring opinion may suffice to check any extension of the doctrine, and thereby better our jurisprudence." (22)

      Another author, focusing on the work of the Michigan Supreme Court, addressed the problematics of a concurrence in result only that does not explain the basis of the concurrence. (23) What are readers to make of such unexplained concurrences and are they helpful or unhelpful?

      When a [judge] concurs in result only, but does not bother to explain why he does not also concur in the opinions of other [judges] who favor the same result, he leaves several possibilities open. Perhaps he disagrees with the reasoning of the other [judges], believing it to be faulty. If so, he would seem to have an obligation, possibly constitutional in nature, to set forth the correct reasoning as he sees it. If his objection is to the scope or breadth of the decision or of some dictum in the opinion, his reasons might become very useful in restricting or broadening the effect of his brethren's opinions in future cases. Certainly the benefit of his different reasoning might prove helpful to other appellate courts considering a similar problem, or possibly to [the same reconstituted appellate court] reconsidering the same problem at some future date. (24) The late Chief Justice William Rehnquist, writing in a 1973 article, opined that constitutional adjudication--at least in the Supreme Court of the United States--"invites, at least, if does not require, more separate opinions [by appellate judges] than does adjudication of issues of law in other areas." (25) This tendency to write separate concurring opinions, or dissenting opinions, Rehnquist theorized, exists because "stare decisis does not have the same weight in constitutional interpretation as in other cases" and there might be an incentive, therefore, of an appellate judge to "want to state his own views if they differ significantly from those of the majority [of the court]." (26)

   3. Recent Takes on Concurring Opinions

      Barry A. Miller suggests, in a 2002 article, that a customary role for a concurring opinion is to discern a legal issue "as relevant but decide[] that it is not dispositive and leav[e] it for another day." (27) Miller cited a concurrence by Justice Kennedy in Wisconsin Department of Corrections v. Schacht as exemplifying this...