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date: 01 October 2023

Judicial Dissent in Collegial Courts: Theory and Evidencefree

Judicial Dissent in Collegial Courts: Theory and Evidencefree

  • Nuno GaroupaNuno GaroupaAntonin Scalia Law School, George Mason University
  •  and Catarina Santos BotelhoCatarina Santos BotelhoCatholic University of Portugal


In collegial courts, disagreements are inevitable. Are these disagreements advantageous or disadvantageous for lawmaking? Why, when, and how do judges decide to disagree with each other? The literature about collegial courts includes extensive normative and positive theories about separate opinions as well as how these kinds of decisions are made. Scholars offer different explanations based on distinct frameworks: a cost–benefit analysis (within rational-choice theory), the principal–agent model, and via legal culture. By considering the complexity of separate opinions in style, substance, collegiality, and frequency, it is possible to find compromises between both (normative and positive) strains of the literature. These compromises reflect a fundamental divergence between private (individual) and social motivations to promote separate opinions.


  • Politics, Law, Judiciary
  • Quantitative Political Methodology


Legal interpretation is not an exact science and is continually evolving (Fuld, 1962; Jori, 2019). Separate opinions differ from the majority’s decision, either because judges do not agree with the court’s outcome (dissenting opinions) or, notwithstanding adhering to the majority’s decision, they do not entirely follow its reasoning and wish to clarify certain aspects of the decision (concurring opinions). Some separate opinions are more complex and can be presented as “dissenting in part and concurring in part” (Mastor, 2019). Separate opinions reside in three fundamental propositions: first, they are legally admissible (which varies across legal systems); second, if separate opinions are permitted, it is necessary to unveil and understand the underlying dissonance between the dissenter and the majority; and third, if there is disagreement, there are a variety of communication styles that can be used. How will such disagreement reveal itself—will it be respectful or defiant? Will it be frugal or prolix? (Botelho, 2021).

Overall, the question of why judges decide to issue separate opinions in some circumstances but not others has attracted the attention of political scientists, economists, sociologists, and legal scholars (Epstein et al., 2011; Epstein & Weinshall, 2021). Differences across jurisdictions have contextualized disagreement in collegial courts in the broader spectrum of institutional and cultural background (Entrikin, 2019). It could be that the frequency of separate opinions varies because some legal traditions are inherently more inclined than others to promote judicial disagreement (Kelemen, 2013, 2018; Raffaeli, 2012).

Seen as a whole, high courts are collegial in nature. They address and adjudicate litigation under appeal. As they have increased responsibilities in error correcting and lawmaking, they tend to have more members than lower courts (Garoupa & Ginsburg, 2015). Therefore, in high courts, a court decision is the outcome of collective deliberation. In effect, the specialized literature points out that a larger number of judges should improve accuracy in adjudication (e.g., Good & Tullock, 1984; Shavell, 1995).

When dissents and concurrences are allowed, judges must decide whether, when, and how to write them (Wood, 2012). This depends on a set of determinants: limited resources, the extent of the disagreement, the internal practices of the court, and the working environment. Rational-choice theory (Edelman et al., 2012; Epstein et al., 2011) explains these determinants with a model of self-interested judges who enjoy life tenure. In this model, when deciding whether or not to dissent or concur, judges trade off their desire for leisure and good collegial relations with their aspiration for a good reputation and their willingness to express their opinion to influence the law. As a result, judges in collegial courts may choose not to dissent even if they do not share the opinion of the majority. This has been referred to as “dissent aversion” theory (Epstein et al., 2011), and a significant body of empirical literature has been developed in the last decade to test it.

This article begins with an overview of normative and positive approaches and by considering the normative debate about the value and role of separate opinions. The positive debate and the empirical literature are considered in section “Positive Theories.” Possible complications with separate opinions as well as plausible reconciliations between the normative and positive debates are also explored in section “Variations in Rates of Separate Opinions.” The final section “Final Remarks” concludes with additional remarks about possible avenues for future research.

Theories of Separate Opinions in Collegial Courts: An Overview

Normative vs. Positive Approaches

There are two distinct, but not mutually exclusive, debates in the scholarly community regarding separate opinions in collegial courts. The normative debate focuses on the advantages and disadvantages of allowing, or even incentivizing, separate opinions in collegial courts. The positive debate revolves around a related but distinct question: given the possibility of separate opinions, what explains a judge’s decision to break with the majority opinion? Alongside normative theories, one can distinguish three sets of positive theories explaining the incidence of separating opinions: cost–benefit analysis (within rational-choice theories), political economy accounts (in the context of asymmetric information about judicial preferences), and explanations based on legal culture (reflecting historical path-dependence and institutional context).

Normative Theories

Normative arguments supporting the existence of separate opinions surround the benefits of free speech and expression, democratic values, and judicial independence (Alder, 2000; Mendenhall, 2020; Vitale, 2014) and the moral obligation borne by judges when an interpretation differs from the court majority (Bader Ginsburg, 2010; Brennan, 1985). These separate opinions may be justified as a corrective mechanism, thus (a) providing alternative sources of legal arguments, (b) favoring pluralistic interpretations of the law, and (c) improving case law as a consequence of better argued majority opinions (Haire et al., 2013; Mendenhall, 2020). They enhance evolutionary gains within a dialogue between past and future courts (McCormick, 2012; Mendenhall, 2020), hence assisting legal efficiency and balancing transitions across majority and minority views in time. Historically, judicial separate opinions can be construed as a source of unwritten law in the extent that they reflect deposits of legal knowledge (Mendenhall, 2020).

Normative arguments opposing separate opinions point to expected negative effects that dissents and concurrences may have on public confidence in the court and court legitimacy (Salamone, 2013; Stack, 1996; Zink et al., 2009), legal certainty, judicial independence (Laffranque, 2003), the erosion of political respect for the role of international courts and collegiality (Combs, 2021; Raffaeli, 2012), the efficient use of court resources (Raffaeli, 2012; Vitale, 2014), and compliance with court decisions.

The normative value of separate opinions cannot be addressed outside of a given institutional and legal context. In order to understand the normative value of dissent, for example, one must consider the arguments that sustain each jurisdiction’s legal design when accepting or rejecting dissent in the first place. To begin with, one significant factor is the prestige and long establishment of jurisdictions. In terms of legitimacy and public trust, a new-established jurisdiction may benefit from rejecting dissent and projecting an image of a united court. This was the case of the Italian Constitutional Court, which, to this date, still prohibits dissent (Zagrebelsky, 2000). On the contrary, in Portugal and Spain, after their transition to democracy in the 1970s, the countries followed a different path and (since their constitutional courts were established, in the early 1980s) separate opinions are allowed (Kelemen, 2018).

This invites a second important point: When considering appeals to supreme courts, speaking as one voice potentially enhances judges’ guiding role of the lower courts (Vitale, 2014). To counter this argument, though, many legal scholars believe that allowing dissent improves the quality and the depth of legal reasoning (Bader Ginsburg, 2010; Belleau & Johnson, 2008; Blomquist, 2004; Botelho, 2021; Brennan, 1985; D’Amico, 2019; Haire et al., 2013; L’Heureux-Dubé, 2000; Mastor, 2019; Scalia, 1995; Shepard, 2005). Separate opinions are a valuable pedagogical tool; they help clarify judgments, thus making rulings more understandable (Mastor, 2019; Raimondi, 2019). The increased quality of the majority decision experiences a “ripple effect” and is a performative virtue of separate opinions, as the majority judges will improve their argumentation with more convincing arguments than those of the dissenting judges (Mastor, 2019). Notwithstanding the openness to a plurality of interpretations of the law, some other legal scholars have argued, alternatively, that separate opinions fossilize the debate and complicate future changes in interpretation, unless the dissenting judges are replaced by a new generation of judges (Pérez de los Cobos, 2019).

To some authors, allowing dissent would project an image of a conflicted jurisdiction, which would hinder the court’s authority (res judicata) and generate legal uncertainty. Under this understanding, the secrecy of judicial deliberations is of paramount importance and allows the quietness and peacefulness that is required to conscientiously deliberate (Pérez de los Cobos, 2019). On the other side of the spectrum, it has been argued that revealing dissent increases a court’s legitimacy by transparently showcasing how the deliberation was the result of a serious weighting of different arguments (D’Amico, 2019; Saint-Hilaire & Sirota, 2020; Stephens, 1952). The weakness, however, is that identifying majorities and minorities—and which judge is part of which coalition—reinforces the image of politization of the courts, endangering its social legitimacy (Pérez de los Cobos, 2019).

From a normative perspective, unanimity and justice are not synonyms. Under this argument, legal authority is not determined by the (in)existence of dissenting opinions. Therefore, the normative discussion reflects the moral authority or the persuasive effect of court decisions (Raimondi, 2019). At a more fundamental level, concealing a disagreement within the court to convey to the public an appearance of monolithic truth is interpreted by some as a form of legal paternalism (Botelho, 2021). It follows that the authority of a deliberation does not flow from the number of votes in favor, but from the law itself. The fact that a specific deliberation was unanimous or approved by five or nine judges does not change its legal force (Botelho, 2021; Rousseau, 2000). And, perhaps most importantly, to circumvent the destabilizing effect of separate opinions, the majority ruling should be as well reasoned as possible (Botelho, 2021).

Conceptually, freedom of expression is also an argument in favor of separate opinions (Kelemen, 2013; Lynch, 2004). In this sense, allowing dissent is beneficial for mimicking the democratic arena and its plurality of opinions, either majority or minority. In other words, the sibylline and prospective capacity of dissent should be in harmony with the idea of the legal framework as an evolving and mutable reality (Botelho, 2021). Alongside it, one has the notion of “demosprudence,” that is, the jurisprudence improving democracy and its plurality of opinions (Flanders, 1999; Guinier & Torres, 2014; L’Heureux-Dubé, 2000; Raimondi, 2019). As today’s dissent might be tomorrow’s majority, separate opinions reveal “a kind of constituent metalanguage” that encourages the evolution of the law (Mastor, 2019, p. 127). Separate and majority opinions influence one another, even though such an impact is more diachronic than synchronic (Botelho, 2021). As checks and balances are the foundation of each states’ constitutional design, so dissent plays the same role balancing the majority’s power within the judicial system (Musmanno, 1958).

Moreover, the independence of the judiciary is often considered when allowing dissent. Judicial independence is both external (before the other powers) and internal (before other judges). For precisely that reason, some scholarship has argued that allowing dissent promotes judicial independence (L’Heureux-Dubé, 2000; Saint-Hilaire & Sirota, 2020).

On the other hand, a relevant argument for not allowing dissent is the culture of collegiality (Alder, 2000). Collegiality rests upon two premises: unanimity and anonymity (Vitale, 2014). To counter this, some stress the false dichotomy in equating unanimity with authority and clarity. Furthermore, when forced to reach a unanimous decision, unanimity is not real, but a “pseudo-unanimity” (L’Heureux-Dubé, 2000). Quite simply, there is no such thing as “unanimity by decree” (Botelho, 2021). If anything, the separate opinion can be deemed as a mere moment of “poetic protest” (Shepard, 2005).

Oftentimes, arguments against separate opinions condemn its trivialization and instrumentalization by judges wanting to self-promote themselves. As a former president of the Spanish Constitutional Court once wrote, the most difficult role of the president is to “manage [judicial] egos” (Pérez de los Cobos, 2019). One particular concern is the “professional dissenters,” who show a pathological and narcissistic attraction to dissent to distinguish themselves from their colleagues (Botelho, 2021; Jori, 2019; Pérez de los Cobos, 2019; Rugge & Volpe, 2016). A distinction clearly needs to be made between a great dissent and a great dissenter (Tushnet, 2006). Still, it is not surprising that some dissenters who acted as prophets with honor were crucial for the evolution of the law (Barth, 1975). As a result, the most widespread and recognized dissents were ones related to subjects such as social justice, the right to bear arms, and fundamental rights (including but not limited to racial justice and women’s rights). Even if some might think dissents sound hollow at that juncture, they are a consolation for the losing party and make the ruling more acceptable overall (Raimondi, 2019). For example, dissenting opinions could offer cues of procedural justice (Baird & Jacobi, 2009; Bentsen, 2019).

Positive Theories

The specific and distinct role of high courts (addressing primarily points of law rather than assessing facts and evidence) in any given legal system seems prone to generate internal judicial disagreement. Individual judges have different educational backgrounds, distinct worldviews, idiosyncrasies, and life experiences; some judges are more prone to certain cognitive biases, they have different personalities and preferences (ideological and otherwise). They are exposed to distinct information sets and exhibit variations in human capital. At the same time, there are norms of consensus in all legal systems, even in collegial courts known for the frequency of separate opinions (Gerber & Park, 1997). Too much disagreement is intuitively dysfunctional and excessively costly to everyone. Some pressure for consensus is clearly rational and cost-effective. Unsurprisingly, human behavior explains why people have a desire to be right and therefore instinctively favors the winning side (Kiss & Simonovits, 2014).

At its core, collegial courts operate as team production (Garoupa & Ginsburg, 2015). A balance between individual goals and collective reputation (for example, for sake of legitimacy) must be achieved. Overly individualistic models defeat the purpose of collegiality. A purely collective reputation focus is likely to induce shirking and inefficient allocation of resources. Under these circumstances, legal systems struggle to find the appropriate balance. The rules about issuing separate opinions are one possible mechanism to address this general concern (Garoupa & Ginsburg, 2015).

When judges do have the option to concur or dissent, that is, write a separate opinion, they face a multiplicity of considerations (Berzon, 2012; Wood, 2012). Moreover, a judge may disagree, partially or fully, with the majority opinion and yet decide not to file a formal separate opinion (Garoupa et al., 2022; Laffranque, 2003). Furthermore, a norm of consensus promotes collegiality (Edwards, 2003; Epstein et al., 2001; Gerber & Park, 1997; Hurwitz & Lanier, 2004; Walker et al., 1988).

Rational-Choice Theories: Cost-Benefit Analysis

According to rational choice theory (Amaral-Garcia & Garoupa, 2017; Edelman et al., 2012; Epstein & Weinshall, 2021; Epstein et al., 2011, 2013; Niblett & Yoon, 2015), a potential dissenter balances the costs and benefits of issuing a dissenting opinion. (The analysis also applies to concurring opinions, where the magnitude of costs and benefits is likely to be smaller.) As such, any potential dissenter must recognize that reaching a different outcome than the court majority requires additional costly effort. Furthermore, dissenting has an external cost: it demands additional effort from the majority to acknowledge and respond to the dissenter’s arguments (either in terms of revising the original opinion to accommodate the dissenter’s viewpoint or in replying to her objections). Repeated, forceful, and extensive dissents are likely to make it more difficult for the dissenter to gain support from her peers in future cases and may even affect job satisfaction (Epstein et al., 2013), generating a significant collegiality cost. Dissents may thereby harm the legitimacy of the court (Salamone, 2013) and even diminish the probability of compliance with its decisions, which are two practical consequences that judges are likely to care about.

Potential dissenters must weigh these important costs against the expected benefits of putting forth a dissenting opinion. Benefits from dissent include the possibility to develop an individual reputation and express a viewpoint, which in turn results in personal satisfaction and the chance to influence case law and policy in the future (Amaral-Garcia & Garoupa, 2017; Harnay & Marciano, 2003; Hettinger et al., 2004; Hurwitz & Lanier, 2004; Mendenhall, 2020; Sunstein, 2015; Wahlbeck et al., 1999). Based on the cost-benefit analysis, a judge may ultimately forgo the opportunity to formally dissent even if her ideological preference is different from the one expressed by the majority.

Empirical evidence from the United States provides some support for the rational choice theory. For example, Epstein et al. (2011) found that caseload is negatively related to the probability of dissent in both the U.S. Supreme Court and federal appellate courts. This evidence is consistent with the argument that the marginal cost of writing a dissenting opinion (which increases with a heavier workload) matters. In collegiality costs, Hazelton et al. (2018) documented that U.S. Court of Appeals judges who work in the same city are less likely to dissent with one another. Furthermore, judges on circuits with fewer active judges, who are more likely to appear in the same panel, as well as judges who have served longer with other judges in the same circuit, are less likely to dissent with one another.

Epstein et al. (2011) presented evidence that casts light on the benefits of dissenting in different circumstances. For example, dissent in appellate courts increases the chances that the U.S. Supreme Court will grant certiorari, but only slightly so. In addition, appellate court dissents are rarely cited either inside or outside the circuit, which in turn diminishes the prospects for reputation building or influencing the law. Dissenting opinions from the U.S. Supreme Court are more likely to be cited; thus, the benefits from dissent tend to be greater when the decision features more than one dissenting opinion or when the case is deemed more important (as proxied by the number of citations received by the majority opinion). The importance of dissent as a facilitator of change is further reflected in the decisions of the Supreme Court of Canada where an initial minority becomes a majority in roughly one in every four divided panel (McCormick, 2012).

Political Economy Accounts: Principal–Agent Model

These accounts are consistent with rational choice theory but within a principal-agent model. In this setting, judges are agents (they have more information about the law and their own preferences) and politicians or upper courts are the principals (they have less information about the law and the individual preferences of the judiciary). Separate opinions allow agents and principals to align their interests in a context of asymmetric information. Dissents therefore facilitate signaling (Daughety & Reinganum, 2006). For example, dissent allows a lower-court judge to convey information to like-minded, higher-court judges about a particular legal question that requires implementation of additional case law or a change in precedent. Alternatively, a separate opinion enables a judge to truthfully reveal her preferences to her political or ideological constituency. In either case, by issuing a separate opinion the dissenting judge obtains future career benefits. In each instance, dissent is a credible signal precisely because it is costly and unlikely to be undertaken by judges with differing views. Therefore, a separate opinion is valuable because it discloses information (Iaryczower & Shum, 2012).

An empirical application of a political economy framework is found in the ideal-points literature (for example, Hanretty, 2012, 2015). In this literature, dissents are conceptualized as a mechanism for the honest revelation of judicial preferences and dissents are leveraged to identify ideology-based behavioral clusters. For example, the traditional conservative–progressive axis used to describe the U.S. Supreme Court is supported by an ideal-points estimation. Identified judicial ideal-points, in turn, reflect separate opinions in collegial courts.

A related strand of contributions emphasizing political–economic factors finds that dissenting opinions are more frequent when judges have strong ideological preferences and when judicial preferences differ significantly over policy outcomes (Tiede, 2016). Other preferences such as judicial philosophies also influence the rate of dissenting opinions (Skiple et al., 2020). Frequency of dissent is further related to norms of consensus and the influence of politically-motivated appointments. Within the same court, reforms that enhance party participation in judicial selection erode consensus (Tiede, 2016).

Explanations Based on Legal Culture

The practice of dissent varies between legal systems and over time. Early in its history, the Supreme Court of the United States replaced the traditional seriatim decision (in which each member of a collegial court enters her own opinion) with the contemporary system of an opinion on behalf of the entire court with the opportunity for separate opinions (Henderson, 2007). In the United Kingdom, judges in the Appellate Committee of the House of Lords historically issued their decisions seriatim, a practice picked up by the new Supreme Court (Raffaeli, 2012). By contrast, in the French Cour de Cassation or the Italian Corte Suprema di Cassazione, deliberations are made secret by law and there are no dissenting or concurring opinions. Such tradition has been respected by their constitutional courts. Many other courts have mixed practices that allow for dissents, but efforts are routinely made to find common ground and achieve consensus, such as in Germany (Bentsen et al., 2021; Bricker, 2017; Kelemen, 2013, 2018; Raffaeli, 2012).

Subject to the caveat of important variations within each legal family, separate opinions are largely seen as constitutive elements of common-law cultures, and much less so a part of civil-law cultures (Fon & Parisi, 2006; Henderson, 2007; Sunstein, 2015). Some scholarship has argued that this assertion is accurate regarding the ordinary jurisdiction, but it is not true as far as constitutional jurisdictions are concerned (Kelemen, 2018; Tega, 2021). In their report on separate opinions of constitutional courts, the European Commission for Democracy Through Law, an advisory body of the Council of Europe (commonly known as the Venice Commission) stated that there is a global trend to allow separate opinions. In fact, regarding constitutional jurisdictions in the European Union, only Austria, Belgium, France, Italy, Luxembourg, and Malta forbid dissent (Saint-Hilaire & Sirota, 2020). If the European Court of Justice itself does not allow separate opinions, on the regional international plane, the European Court of Human Rights, the African Court on Human and People’s Rights, and the Inter-American Court of Human Rights permit separate opinions. On the international universal level, dissent is also granted by the International Court of Justice, by the International Tribunal for the Law of the Sea, and by the United Nations Human Rights Committee (Raimondi, 2019). In summary, the practice of the civilian jurisdictions seems to be growing more similar to that of their common law counterparts (Saint-Hilaire & Sirota, 2020).

Empirical evidence suggests that the existence or prohibition of separate opinions in a particular legal system is predicated on a complex web of features characteristic of that system (Bader Ginsburg, 2010; Boudin, 2012; Garoupa & Grajzl, 2020; Kirby, 2007). In this sense, the status of separate opinions merely reflects institutional differences embedded in specific legal cultures. The use of separate opinions, as well as the rise of constitutional abstract review in Europe more generally, is therefore under this group of theories explained by legal tradition, legal family, history, and culture (Bricker, 2017; Cohen, 2014; Entrikin, 2019; Keleman, 2013, 2018; Laffranque, 2003). Detailed reviews of country case studies have found some support to these claims (Saint-Hilaire & Sirota, 2020; Rafaelli, 2012).

Explanations of comparative differences in dissent that emphasize the primary role of legal culture are methodologically problematic. Empirically, it is difficult to disentangle the contextual effect of legal culture from the political process and the nature of institutional design that can, at least in theory, also influence the evolution of dissents and concurrences. One would ideally identify a comparative setting where legal culture is essentially the same across jurisdictions, but the contextual political and institutional characteristics differ. Unfortunately, these quasinatural experiments are rare. Comparing state supreme courts across the United States is always one valuable possibility (Brace & Gan Hall, 1989, 1990, 1993). In their study of post-Yugoslav jurisdictions, Garoupa and Grajzl (2020) explored evidence that country-level party fractionalization is an important determinant of judicial dissent in collegial courts. They found that party fractionalization trumps common legal traditions.

Variations in Rates of Separate Opinions

By Nature of Cases

The interaction between the information conveyed by a separate opinion and the legitimacy of the court plays an important role (Amaral-Garcia & Garoupa, 2017). More controversial laws may be associated with more dissent due to the intensity of the political debate that they imply. Alternatively, more controversial laws might require a more decisive intervention by a collegial court, which hinders judicial legitimacy and, in turn, deters potential separate opinions. The interaction between the nature of the cases and separate opinions is, therefore, complex (Muro et al., 2020).

In their study of the Canadian Supreme Court, Songer et al. (2011) showed that dissent is strongly related to legal ambiguity in the law, but also to political conflict, institutional structure, and variations in the leadership style of the chief justice. Hanretty (2015), in his research about the Estonian Supreme Court, found that the main determinant of judicial disagreement was the appropriate scope of constitutional redress, not necessarily the political salience of the case.

Furthermore, Bentsen (2018) examined the Supreme Court of Norway and concluded that rising rates of dissent in the 1990s reflected both changes to judicial discretionary power and the salience of human right cases. In a second article by the same author, Bentsen (2019) further documented that these dissents found significant support among opponents of a court decision. Thus, according to him, separate opinions could be perceived as a mechanism of procedural justice in more controversial cases.

Bricker (2021) investigated the production of court decisions and separate opinions in six different courts in Europe. He concluded that consensus depends on the complexity of the case: more complex cases induce more separate opinions.

Finally, in other experiences, dissent tends to be more likely when cases are more controversial (especially regarding separation of powers) and when the largest opposition party is politically more relevant (Bagashka & Tiede, 2018).

The nature of cases subject to adjudication by a collegial court is inevitably determined by docket control. Skiple et al. (2021) compared tax decisions in the Norwegian and Danish supreme courts. The authors found that discretionary dockets are associated with higher dissent rates than mandatory dockets.

By Nature of Separate Opinions: Oral Versus Formal

An individual judge may disagree, partially or fully, with the majority opinion and yet decide not to file a formal separate opinion (Laffranque, 2003). Disagreement without written separate opinion is less costly (for example, no formal document must be written and no major elaboration on a legal explanation need be advanced), but it is also less likely to generate a strong benefit (different audiences are unlikely to pay attention to a mere registration of a negative vote with no additional written explanation). Hence, mere oral disagreement could be seen as a compromise between voting with the majority (thus never revealing a discord) and filing a formal separate opinion (expressing an individual and/or distinct view, partially or fully, in written terms).

The distinction between oral disagreement and filing a separate opinion is a matter of degree. Once there is public disagreement, the cost of disrupting a norm of consensus is borne. In a sequential decision, when considering whether to file a separate opinion, the disruption to a consensus norm is a sunk cost to the individual judge. The additional decision is mainly about revealing to the world the individual reasons for such collegial disagreement (and possibly the specific identity of who has disagreed).

Reflecting the existing theories of dissent, the balance of costs and benefits in favor of mere oral disagreement (with no separate opinion) could depend on the nature of the case or the characteristics of the individual judge. For example, judges could consider a certain case sufficiently important to justify exposing public disagreement but not important enough to go a step further and file a separate opinion. The importance of the case can be understood to be legal (varying as a function of the area of the law) or political (the judge’s appointer, party, or certain audiences, even public opinion matter for this purpose). Still, it could also be that certain individuals are inclined to explain their disagreement more often because of professional background. A former legal academic or politician could be more or less inclined to write fluently about the law (or public policy) than a career judge, a former lawyer, or a standard bureaucrat as a function of post-court career opportunities (Raimondi, 2019). Age and tenure in the court may be associated with a learning curve on appropriate behavior in collegial courts and could influence the ultimate decision of filing a separate opinion. In a more mundane view of collegial courts, a lazy judge could simply prefer to register disagreement without recording the exact reasons about the disagreement or even disclose his/her identity to the general public.

In their study of the Spanish Council of State, Garoupa et al. (2022) found that the individual decision to file separate opinions, when there is already disagreement in the collegial decisions, is more related to professional background and demographics in the collegial court broadly defined (more specifically, tenure in the institution), and less to political variables or case-specific variables (except for decisions involving Spanish autonomous communities).

By Nature of Separate Opinions: Reasoned Versus Boilerplate

According to rational choice theory, judges balance costs and benefits when contemplating a separate opinion. Judges should write a formal separate opinion when the possible benefits (such as the impact on the law or external recognition) outweigh costs. However, if a separate opinion is to be filed in a formal way, judges must decide which kind of opinion to cast—a long, detailed, reasoned dissent or a simple boilerplate dissent. To illustrate, some dissents are longer than the ruling itself, or than famous books, such as some of Shakespeare’s plays (Penrose, 2018). In some cases, separate opinions are written similarly to a paper submitted to a law review (Fried, 2000; Raimondi, 2019). In fact, it has been said that judges should keep in mind that “the influence of their opinions is often in inverse proportion to their length” (Kolb, 2013, p. 1017).

By backwards induction, the decision on whether or not to dissent should take into account the subsequent decision concerning the type of dissent. A rational judge should go for a reasoned dissent when the matter justifies a long, legal pondering of arguments. The same rational judge should opt for boilerplate dissents when the case does not answer a very important legal question. The immediate consequence of these observations is that dissenting in important matters is costlier (because it involves long and complex reasoned dissents) while dissenting in less important cases is less costly (since the judge will file something like a mere template).

At the same time, one can envisage that individual benefits from dissenting are also more acute in important cases (at least, in terms of external visibility) than in less important cases (which have little impact on the law or on legal and political debates).

Therefore, rational choice theory cannot unambiguously predict the exact outcome on the balance of costs and benefits. In fact, it could be that the net benefit is positive for important cases (because legal impact is more significant than drafting a reasoned dissent), for less important cases (because filing a boilerplate dissent is almost costless), or for both.

In their study of the Supreme Court of Argentina, Muro et al. (2020) found that more important cases have a lower likelihood of carrying a dissenting opinion. Yet, when the authors broke down dissents by type (that is, reasoned comprehensive dissents versus boilerplate dissents), they found that majority decisions carrying dissents tended to be longer, but only for reasoned dissents. Furthermore, they showed that reasoned dissents were more likely to occur in important cases.

By Nature of Separate Opinions: Individual Versus Collegial

Theories of dissent focus on explaining why and under which conditions individual judges decide to write a separate opinion when they disagree from the collegial decision. Yet separate opinions can be strictly individual or collegial too. In the latter case, individual judges who disagree with the majority write a different opinion as a group. Broadly speaking, there is a continuum of possibilities. One polar case is a court decision supported by a majority and a separate opinion endorsed by a minority in a collegial institution. The opposite polar case is a court decision supported by a plurality and a multitude of separate opinions by individual judges.

From a conceptual viewpoint, the individual decision to join a collegial separate opinion or file a solo separate opinion can be understood as mimicking the first-order decision of agreeing or disagreeing with the court decision. For example, the costs of writing an individual separate opinion are more significant than joining a collegial separate opinion. Similarly, the prestige and influence acquired by authoring a separate opinion are presumably higher than when merely joining a separate opinion written by another judge.

Norms of consensus shape separate opinions in two moments—when deciding to disagree and when deciding the number of separate opinions to be formally written. In their seminal article, Caldeira and Zorn (1998) documented that these consensual norms impact concurrences and dissents substantially at the same time. Thus, consensual norms are likely to be a substantial influence in the time-pattern and number of separate opinions.

The Fundamental Divergence Between Private and Social Motivations

In the section “Theories of Separate Opinions in Collegial Courts: An Overview,” there was an important distinction between normative and positive theories of dissent in collegial courts. From a rational choice theory perspective, one can expect the normative theories to suggest the optimal rate of separate opinions while the positive theories should explain the observed rate of separate opinions. Broadly speaking, they should differ unless judges understand the available normative theories and act by them.

It is conceivable that judges in collegial courts care about normative theories (as embodied by collective reputation mechanisms in the way suggested by Garoupa & Ginsburg, 2015). However, judges are also likely to care about their individual reputation. It seems only natural that there is a divergence between individual motivations to dissent or concur and collective or efficiency motivations to dissent or concur. Nevertheless, the direction of the externality effect, that is, this divergence between individual and collective goals could easily go both ways. One can imagine having too many separate opinions because individual decisions do not fully consider the normative losses generated by separate opinions. Still, one can also imagine not having enough separate opinions when individual decisions fail to internalize the normative gains generated by separate opinions.

It does not seem easy to answer the question on whether there are too many or too few separate opinions without some recognition where the optimal number lies. Similarly, the rules established by collegial courts to regulate the production of separate opinions should be designed to facilitate such optimal or desirable number.

The Venice Commission (2018), on its report on dissent behavior, advised that separate opinions should only be used at ultima ratio or, in other words, with parsimony and only when all other attempts to find unanimity have failed. The rationale is to avoid abusing separate opinions. In fact, some warn that the generalization of separate opinions will lower their utility. Hence, separate opinions must be written selectively (Pérez de los Cobos, 2019, p. 118).

The Venice Commission (2018, p. 13) further recommended first, that separate opinions “should focus on explaining that the matter could be dealt with differently, perhaps, in a better way, but not that the solution chosen by the majority was of poor quality”; and second, that a “judges’ code of conduct or ethics” should be adopted, to define red lines that should not be crossed. Against the first recommendation, some scholars have argued that it “would be regrettable if judges hesitated to discharge their adjudicative responsibility, which individual (as well as collective) independence protects, for fear of making their colleagues look bad” (Saint-Hilaire & Sirota, 2020). As far as the second recommendation is concerned, some arguments are against the development of formal codes of conduct. To put it bluntly, formal codes of conduct could be used to “harass judges, and so to undermine the publication of dissenting or concurring views is meant to protect” (Saint-Hilaire & Sirota, 2020). If anything, judicial ethics and good sense should suffice when deciding whether or not to write a separate opinion (Botelho, 2021; Saint-Hilaire & Sirota, 2020).

Is dissent a symptom of a healthy jurisdiction or, on the contrary, does it reveal its dysfunctional dissonance? The answer must consider the frequency of separate opinions (a balanced number of dissents as suggested by Botelho, 2021), but also the substance of these opinions. Some legal commentators also highlight style, suggesting that the dissent should be written cordially, refraining from ad hominem attacks or from feeding the narcissistic self-promotion of judges. In other words, according to these legal scholars, the “me against the world” motto or the “stellar judge” longing to attract public attention is not consistent with what a functional dissent should be (Botelho, 2021). To sum up, concerning style, each judge should master the refined skills of moderation, the talent of “disagree without being disagreeable” (Little, 1999, p. 686), and the ability to communicate the disagreement in an elegant, respectful, and empathetic way (Botelho, 2021; Hambro, 1956; Kulawik, 2011; Pérez de los Cobos, 2019; Wedeking & Zilis, 2017).

Yet, at the same time, additional studies have revealed that, when writing separate opinions, judges tend to use more rhetoric and persuasion techniques. It has been reported that such a writing style had a better impact on future majorities of the court (Belleau & Johnson, 2008; Hinkle & Nelson, 2017).

Final Remarks

Normative theories value either the consequences or the intrinsic legal value of separate opinions. Positive theories of concurrences and dissents are, broadly speaking, based on cost-benefit analysis and political economy. Judicial preferences, usually focused on differences in ideology and judicial philosophy, play a major role. Comparative theories emphasize institutional and cultural determinants. The gap between normative and positive theories suggests a fundamental divergence between individual and social motivations to produce separate opinions.

In many jurisdictions, support can be found in the empirical literature for the view that the nature of cases (for example, political salience or legal complexity) and the nature of separate opinions (oral versus written, reasoned versus boilerplate, individual versus collegial) influences the rates of separate opinion.

It is interesting that the rise of behavioral economics and law and psychology has not impacted the study of judicial dissent as one would hope and expect. Insights from social psychology have been applied to explain judicial behavior more generally than separate opinions (Baum, 2006). While, for example, comparative theories explore cultural dimensions to explain variations in rates of dissent opinions, there is no significant literature on relating the incidence of concurrences and dissents to standard cognitive biases.


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