Concurring in Result Without Written Opinion: A Condemnable Practice

Abstract:     
This article demonstrates that concurring in result (CIR) without issuing a written opinion, a seemingly unremarkable practice used by many appellate judges, undermines the judicial process and can be fundamentally unfair to litigants. After examining the CIR practice and its ramifications, this article argues that CIR voting is justifiable in few, if any, circumstances. Part I first discusses the general prevalence of CIR in state courts throughout the country. Part I then contrasts states in which CIR voting is employed frequently with states in which the practice is virtually nonexistent. Part II addresses factors that may be fueling the CIR practice—including unmanageable dockets, a lack of collegiality on some courts, and even judicial apathy or laziness. Part III demonstrates that CIR thwarts the judicial process, undermines stare decisis, and spawns future litigation on important issues that should have been resolved previously. Part IV argues that, at least where a criminal defendant's liberty is at stake, a CIR swing vote may deprive that individual of due process of law. Finally, Part V recommends that state courts promulgate rules prohibiting CIR or providing guidelines for narrow instances in which the practice may be authorized.

Keywords: Judges, Opinion, Concurring, Due Process, Fundamental Fairness

JEL Classifications: K41

Accepted Paper Series