Judicial Opinions & Common Law

• Author: Beau Steenken, Tina M. Brooks
• Pages: 55-82

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Chapter 3

Judicial Opinions &

Common Law

The law embodies the story of a nation’s

development through many centuries, and it cannot

be dealt with as if it contained only the axioms and

corollaries of a book of mathematics. In order to

know what it is, we must know what it has been, and

what it tends to become. – Oliver Wendell Holmes,

Jr., The Common Law

It is a maxim among these lawyers, that whatever

hath been done before, may legally be done again:

and therefore they take special care to record all the

decisions formerly made against common justice and

the general reason of mankind. – Jonathan Swift,

Gulliver’s Travels

3.1 Learning Objectives for Chapter 3

In working through this chapter, students should strive to be able to:

• Appreciate how judicial opinions create legal rules through

precedent.

• Evaluate judicial opinions’ varying weight of precedential authority.

• Use reporters to look up opinions by citation.

• Evaluate the editorial content added to opinions by publishers of

reporters.

• Explain how the West Key Number/Digest System functions.

• Use digests and reporters in combination to reconstruct the

common law on a given subject.

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3.2 Judicial Opinions and the Common Law

As discussed in Chapter 1, both constitutional and statutory provisions

generally consist of language too broad to be applied to specific facts

without an act of interpretation. In the U.S. legal system, the judiciary

serves as the primary interpreter of the law.

Courts issue their interpretations as judicial opinions, which then act as

precedent to create lasting legal rules. Sometimes (maybe even most of the

time) lawyers will refer to opinions as cases. However “opinion” is a more

precise term, as a single case can feature more than one opinion. Multiple

opinion cases occur when not all the judges77 hearing a case agree on the

result. If a majority of judges agree, they will designate one of their

members to issue a majority opinion, which is the strongest form of

judicial precedent. If an individual judge disagrees with the majority

opinion, she may issue a dissenting opinion. Similarly, if an individual

judge agrees with the end result of a case, but not the legal reasoning that

led to the result, she may issue a concurring opinion. Both dissenting

opinions and concurring opinions may be cited as persuasive precedent,

but neither will be as strong a precedent as a majority opinion.

To further complicate matters, judges may “join” the opinions of their

colleagues. In fact, the way a researcher can tell that a majority opinion is a

majority opinion (other than by the fact it comes first in the write-up), is

by seeing that a majority of the judges have joined it. Judges may also join

dissents or concurrences instead of issuing their own. Furthermore, judges

sometimes only join parts of an opinion, if they only agree with certain

issues. After all the judicial maneuvering is said and done, sometimes a

court will be left without a majority opinion but will have to issue a

plurality opinion instead. Plurality opinions act as much weaker precedent

than majority opinions. Thus, when a legal researcher finds a relevant

opinion, she should pay attention as to its origins.

Once issued, judicial opinions act as precedent for later courts, thus

opinions provide their own legal rules that become part of American law.

Lawyers call such judge-made rules “common law.” Common law can

develop from a statute or constitutional provision by creating a standard

interpretation of the same, or it can develop independently of

constitutions and statutes. Miranda Rights serve as an example of the

77 Courts very as to whether they style their members as “judge” or as “justice.”

For purposes of this chapter, “judge” will be used throughout.