ⓘ Blog | Judicial legal terminology - judiciaries ..

Concurring opinion

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion. As a practical matter, concurring opinions are slightly less useful to lawyers than majority opinions. Having failed to receive a majority of the courts votes, concurring opinions are not binding precedent and cannot be cited as such. But concurring opinions can sometimes be cited as a form of persuasive precedent assuming the point of law is one on which there is no binding precedent already in effect. The conflict in views between a majority opinion and a concurring opinion can assist a lawyer in understanding the points of law articulated in the majority opinion. Occasionally, a judge will use a concurring opinion to signal that he or she is open to certain types of test cases that would facilitate the development of a new legal rule, and in turn, such a concurring opinion may become more famous than the majority opinion in the same case. A well-known example of this phenomenon is Escola v. Coca-Cola Bottling Co. 1944. Concurring opinions may be held by courts but not expressed: in many legal systems the court "speaks with one voice" and thus any concurring or dissenting opinions are not reported.

Curia advisari vult

Curia advisari vult is a Latin legal term meaning "the court wishes to consider the matter", a term reserving judgment until some subsequent day. It often appears in case reports, abbreviated as "Cur. adv. vult", or sometimes "c.a.v." or "CAV", when the bench takes time for deliberation after hearing counsels submissions. In the case under consideration, the effect of the order is that nothing is adjudged and the Court will relist the matter to deliver judgment but may hear further argument. The court remains seized of jurisdiction and may make further interlocutory orders, for example, to prevent a party from dealing with an asset which may be the subject of litigation or may be sold in satisfaction of a judgment debt; counsel remain under the duty to the court not to withhold relevant law and, if counsel becomes aware of a relevant authority, must seek to relist the matter for further argument. If the case is being used as a precedent, a decision given after an adjournment may be given more weight than a decision given orally immediately at the close of argument Latin: ex tempore. The term was not used in the reports of the House of Lords. Instead, an expression such as "Their Lordships took time to consider", or "Their Lordships took time for consideration" will be found. In the Scottish courts, the word avizandum is used similarly.

Decisory oath

According to John Henry Merryman, "The Decisory Oath worked in the following way: Party A could put Party B on his oath as to a fact at issue that was within Party Bs knowledge. If Party B refused to swear, the fact was taken as conclusively proved against him. If Party B swore, the fact was taken as conclusively proved in his favor." Mary Gregor explains that this procedure was "designed to protect the judge from threats from the wealthy and the powerful."

Declaration (law)

In the canon law of the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity is authoritative judgment on the part of an ecclesiastical tribunal juridically establishing the fact that a marriage was invalidly contracted or, less frequently, a judgment juridically establishing the fact that an ordination was invalidly conferred. It does not dissolve a valid bond of marriage, but it is merely a factual declaration of the nullity of the bond.

Dubitante

Dubitante is used in law reports of a judge who is doubtful about a legal proposition but hesitates to declare it wrong. E.g., "Justice X acquiesces in the Courts opinion and judgment dubitante on the question of Constitutional preemption." Some judges use this term after their names in separate opinions, as if analogous to concurring or dissenting. Doing so may signal that the judge has doubts about the soundness of the majority opinion, but not so grave as to cause him to dissent. The legal philosopher Lon L. Fuller said that "the opinion entered dubitante the judge is unhappy about some aspect of the decision rendered, but cannot quite bring himself to record an open dissent." Another use - doubt but lack of conviction that the majority is wrong - is illustrated in Judge Friendlys concurrence in Feldman v. Allegheny Airlines, Inc., in which he stated, "Although intuition tells me that the Supreme Court of Connecticut would not sustain the award made here, I cannot prove it. I therefore go along with the majority, although with the gravest doubts." In 2005, Westlaw recorded 626 uses of the term in the United States. Nearly half of the instances of use of the term come from four federal court of appeals judges: Frank Coffin First Circuit; Henry J. Friendly Second Circuit; Frank Easterbrook Seventh Circuit; and James C. Hill Eleventh Circuit.

Ex tempore

Ex tempore is a legal term that means at the time. A judge who hands down a decision in a case soon or straight after hearing it is delivering a decision ex tempore. Another way a judge may deliver a decision is to reserve their decision and deliver it later in written form. An ex tempore judgment, being off the cuff, does not entail the same preparation as a reserved decision. Consequently, it will not be thought out to the same degree. In Australia, intermediate-level courts tend to have a heavy case load, and so many decisions are delivered ex tempore for reasons of time and necessity. Because many decisions are ex tempore, intermediate-level courts decisions are not binding on inferior courts - that is to say, that in New South Wales, the District Courts decisions are not binding on the Local Court see Valentine v Eid 1992 27 NSWLR 615 and stare decisis). Ex tempore decisions are not binding on later courts due to the quick nature of their delivery after the hearing of a case. Therefore, these decisions are of persuasive authority only and a later court, dealing with a case of similar facts, can reach a different conclusion if it is appropriate and the court in question believes that their decision is more suitable.