Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

Authors

Meg Penrose, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

8-2023

Journal Title

George Mason Law Review Forum

Abstract

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed to garner support from the rest of the Court. They are cries for attention that are, usually, better left unwritten. Concurring opinions are legal clutter.

This essay challenges judges—particularly Supreme Court Justices— to refrain from subjecting lawyers and law students to legal clutter. Court opinions are already too long. They can be complex. Distracting readers from the actual holding of a case causes unnecessary confusion, even for other judges. Two recent examples, Justice Kavanaugh’s individual concurrence in NCAA v. Alston and Justice Thomas’s individual concurrence in Dobbs v. Jackson Women’s Health Organization , illustrate the problem. Journalists and lawyers, eager to see systematic change at the NCAA, have latched on to one sentence in Justice Kavanaugh’s Alston concurrence—repeating lines that are neither the Court’s holding nor controlling. Similarly, Justice Thomas’s solo concurrence in Dobbs suggesting the entire line of substantive due process cases should be overturned, left some wondering if overturning Roe was just the beginning of a stare decisis regression. Worse still, both Justice Kavanaugh and Thomas seemingly invite new litigation to ensure that their individual viewpoints ultimately become the law. This is the danger of concurring opinions. Below the surface, many concurring opinions are nothing more than a latent form of judicial activism. On the surface they are mere legal clutter.

First Page

65

Last Page

81

Num Pages

17

Volume Number

31

Publisher

George Mason University School of Law

Recommended Citation

Meg Penrose, Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation, 31 Geo. Mason L. Rev. F. 65 (2023).
Available at: https://scholarship.law.tamu.edu/facscholar/1920

File Type

PDF