Use of dissenting and concurring opinions.

• Jurisdiction: United States

Section 54. Use of dissenting and concurring opinions.—When you are not counsel in a case, but are above the conflict, writing for a non-judicial audience on what the law should be, you are of course perfectly free to quote from dissenting opinions, and to indicate why you prefer the reasoning these set out. As the old professor put it, "What the court says carries no mandate to the logical faculty."

But when you are counsel seeking to win an appeal for your client, you need the votes of a majority of the court in which the case is pending, and consequently you will not help to persuade the judges by quoting from dissents that failed to persuade them, particularly from recent dissents. If the court in question currently follows stare decisis, this point would appear to be almost too obvious to require mention.

We have, however, experienced something of a bloodless constitutional revolution since 1937, in which some notable earlier dissents, by judges of the stature of Holmes, Hughes, Brandeis, Cardozo, and Stone, have become...