Publishing Dissent

Abstract:     
Judges in common law jurisdictions sign opinions and publish dissents (as well as concurrences). In civil law jurisdictions they do not. Every civil law opinion is per curiam, by the court, while per curiam opinions in common law are the exception. The origins of the difference are historical and institutional. But the history and institutions of either system both reflect and inform profound jurisprudential differences. Written for a symposium at Washington & Lee Law School on unpublished and de-published opinions, the essay examines the practice of dissent in three legal cultures and the absence of it in civil law culture. It explores the origins of the American practice in Marshall's Supreme Court at the beginning of the nineteenth century.

Number of Pages in PDF File: 39

Keywords: dissent, concurrence, opinion, common law, civil law, ius commune, halakhah, Marshall, William Johnson

Accepted Paper Series