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Publication Title

Washington University Global Studies Law Review

Abstract

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions, and judicial members of many “ordinary” supreme courts may do so as well.

The United States Supreme Court is known globally for its justices’ regular practice of issuing separate opinions, and some international scholars hold up the Court as a shining example of the common law tradition of transparency. Yet even in the United States, few if any formal norms govern the Supreme Court’s opinion-issuing practices, which have also evolved quite significantly, if incrementally, over time. Without any formal constraints whatsoever, a time might come when a bare majority of the Court could choose secrecy over transparency in the blink of an eye. Yet the many United States scholars who have long championed the dissenting opinion, and who urge that tradition on other sovereigns, generally overlook the absence of formal norms that protect federal courts’ judicial opinion-issuing practices against change.

A few scholars have advanced preliminary theories that seek to explain institutional variations in opinion-issuing practices, but those theories are narrow in scope and warrant considerably more testing and refinement. A predictive model has little value unless it can be generalized beyond a small group of international and supranational courts. While theoretical models hold promise, more scholarly work is warranted to better conceptualize the competing “judicial values” that influence the practices of national and subnational multi-member courts. Scholarly research is also needed to identify the reasons for individual judicial choices about disclosing votes and publishing separate opinions.

The remarkable contemporary global interest in the opinion-issuing practices of national, supranational, and international tribunals reflects our expanding vision of the rule of law and each sovereign’s role in that new world order. In our increasingly global, interconnected legal community, should judicial tribunals speak with one institutional voice? Or should a cacophony of individual judges communicate judgments, each writing seriatim? The polarized views of many scholars who advocate for and against separate opinions disregard legitimate differences in the underlying norms and values that inform judicial practices. There is no clear, “one-size-fits-all” answer. Much more comparative scholarly work remains to be done. But the global trend is clearly in favor of “democratizing” justice by defrocking the myth of judicial consensus and unanimity.

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