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Appellate courts often hear cases en banc and decide them by simple majority of the judges on the bench. The majority will typically sign a single "per curiam" decision, which constitutes the judicial precedent (and hence law) on the question decided.

But judges who disagree with the majority opinion will often author dissenting opinions or statements which are published along with the majority opinion. What significance, if any, do these dissents have for purposes of law?

For example, I was just reading a filing with SCOTUS requesting an emergency stay of a Pennsylvanian Supreme Court decision. The filing includes not only the majority state court per curiam in question (ref A1), but also several dissenting statements from that court in that case (ref A5-). Do those have any more weight before the SCOTUS than any other writing or argument that may be filed in support of the appellants' arguments?

Or, do dissents have any sort of intermediate authority – less than precedent, but more than any other argument would have solely on its merits – in terms of informing future legal decisions?

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    For one thing, do they not ensure a dissenter has made the decision purely on legal grounds, and isn't just saying "no!" because a large bag of money is blocking their access to the "yes" button? – Nij Jan 30 '18 at 18:39
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    @Nij – I hadn't thought of it that way, but it does make sense that a judge would be expected to (or want to) justify his decision even if it has no effect. But if that's all it is (i.e., "this judge had some good reasons to not join the majority, but they only serve to salve his reputation as a qualified jduge"), it seems a little odd that the dissents get published everywhere with the majority decision which does have full force of law. – feetwet Jan 30 '18 at 18:53
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    While not serving to create new law, considering the authority judges have in our judicial system, it is important their reasons for disagreeing with the majority are recorded. Writing dissents also helps the majority better clarify their positions. Affecting future judgments and potentially spurring legislative action, as mentioned elsewhere, are also key reasons. Concurring opinions are yet another wrinkle in this question. These are written when a judge agrees with the outcome but for different reasons than those written in the majority opinion. – A.fm. Feb 1 '18 at 17:04
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The decision of a court consists of several things:

  • The orders made
  • A summary of the evidence
  • The judge's reasoning from the evidence to their conclusions of what the facts of the case are
  • The judge's reasoning from the evidence to their conclusions of what the law applying to those facts is
  • The judge's reasoning from those findings of facts and law to the orders that were made (ratio decidendi)
  • Reasoning on how things might have been decided otherwise (or the same way) if the facts or the law were different (obiter dicta).

We hope that the judge is articulate enough that we can tell which is which.

Where there is more than one judge there is more than one opinion. However, there is still ratio decidendi and obiter dicta across all the opinions. Typically, a dissenting judge disagrees with the ratio decidendi in whole or part and his reasoning about that is obiter dicta.

The ratio decidendi – "the point in a case that determines the judgement" or "the principle that the case establishes" – creates binding precedent. The obiter dicta creates persuasive precedent.

A binding precedent is just that – it binds the decisions of lower ranked courts in the hierarchy. If the facts of the current case match the facts of the precedent then the judge must follow the precedent even if they disagree with it – indeed there are many decisions where the judge expresses their disagreement with the precedent in no uncertain terms.

In addition, there can be conflicting precedent, for example, where the High Court of Australia has made a decision on a piece of legislation that conflicts with a decision of the Supreme Court of NSW on an essentially similar provision in a different Act. A wise judge in such a situation should do what McDougal J did in Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 and issue orders referring it to a court that can overturn one (or both) of the precedents.

A persuasive precedent can influence the decisions of other courts – they are an authority a judge can look to in formulating their reasons but they are free to consider and reject them even if the facts match. Obiter dicta from same level or higher courts in the hierarchy is persuasive precedent as is ratio decidendi and obiter dicta from same level courts and courts in other jurisdictions.

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Sometimes dissents are issued to call attention to a bad decision in the hope that a higher court or the legislature will address the problem.

Sometimes dissents are issued to clarify what the dissenting judge understands to be the scope of the decision (sometimes arguing that it is narrow, other times arguing that it is broad).

Sometimes dissents are issued to encourage someone to bring a new case that doesn't make the mistakes that caused someone to lose this time around or to help people decide if they should take a legal position by making it easier to predict how individual judges will vote.

Sometimes dissents provide a judge with a way to disavow a decision that the judge thinks is unwise because the judge doesn't want to bear moral responsibility (and reputational responsibility) for a bad decision. Such a judge may also be hoping the other judges not bound by this decision will come to their conclusion (thus shaping the larger law), or that new judges with similar views will be appointed in the future making it possible to adopt the dissenting view eventually as law.

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    If you want a real doozy of a complex ruling demonstrating many of these motives, this week's ruling on the constitutionality of the CFPB's structure by an en banc D.C. Circuit (250 pages) is for you. cadc.uscourts.gov/internet/opinions.nsf/… – ohwilleke Jan 31 '18 at 19:32

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