The Art of Dissent


One panel at the 2013 Appellate Judges Education Institute Summit focused on dissenting opinions: reasons to write them, their role and possible impact, and the preservation of court collegiality when dissenting. Moderated by Ninth Circuit Judge Margaret McKeown, the panel featured jurists who represent a range of tendencies to write separately: Judge James Wynn of the U.S. Court of Appeals, Fourth Cir-cuit (separate opinion rate of approximately 30 percent), Justice Goodwin Liu of the California Supreme Court (separate opinion rate of ap-proximately 20 percent in two years on the court), and Justice Eileen Moore of the Califor-nia Court of Appeal, Fourth Appellate District, Division Three (ten dissents and partial dissents in over twenty years on the court).

Why dissent?

The panelists described seven reasons to dissent: legal correction, principle and posterity, letter to another court, letter to the legislature, development of the law, message to losing par-ty, and damage control (i.e., "this court's ruling is effective for this day only and this case only"). Justice Moore, who expressed a strong prefer-ence for unanimity in decisions in order to pro-vide solid guidance for those governed by the court’s rulings, added some nuances to these reasons, including: sending a message to the legislature or a higher court to change the cur-rent legal rule; sending a message to the losing party that, even though the party lost, the un-fairness of the result is still acknowledged; and planting a seed to change the law later.

Originally published in Appellate Issues - WWW.AMBAR.ORG/AJCCAL - January 2014 - Winter Edition.

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