Old Man Yells at Cloud, First Installment

I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship.  This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece.  I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points:  these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed.  On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).

For the first installment, I wanted to focus on a glaring error that I see more and more:  Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.”  It is as if those last three words don’t really matter, so they can be cut out.  I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form.  I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back.  But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.

The difference between a concurring opinion and one concurring merely in the judgment is an important one.  For one thing, a concurrence in the judgment is often more like a dissent than a straight concurrence.  Take, for example, the recent case of United States v. Jones, 132 S.Ct. 945 (2012), which addressed whether government officials conduct a “search” for purposes of the Fourth Amendment when they attach a GPS device to a vehicle and track its movements for 28 days.  The Justices were unanimous that this was a search but split 5-4 over the reasoning.  The Court held this to be a search because the government physically intruded upon a private space, by placing an object onto personal property, for the purpose of gathering information.  Justice Alito, joined by three of his colleagues, sharply disagreed with this “trespass theory” of the Fourth Amendment but concluded that tracking the suspect’s movements with a GPS device for so long infringed upon his reasonable expectation of privacy in his movements.  Justice Alito spends the bulk of his separate opinion criticizing the Court’s return to the old “trespass” doctrine, with much less space devoted to why the government’s conduct violated Jones’s reasonable expectation of privacy.  The opinion is much more dissent than concurrence but, of course, because he and his three colleagues would have come to the same result as the Court, it is a concurrence in the judgment.  To mischaracterize it as a “concurrence” is to make much more than a simple technical error; it is to mislead the reader into thinking that Justice Alito essentially agreed with the majority and simply wanted to add his two cents or try his hand at explaining what the majority was really saying.

By contrast, Justice Sotomayor wrote a true concurrence in Jones.  She joined the majority and agreed with its reasoning but wrote separately to indicate her agreement with much of what Justice Alito wrote in his separate opinion and to call into question some more general aspects of Fourth Amendment search doctrine.  Thus to call both what Justice Alito wrote and what Justice Sotomayor wrote “concurrences” conveys a false impression about the two opinions and their relationship to the majority.

Another context in which the distinction really matters is where there is no majority opinion.  Take, for example, Missouri v. Seibert, 542 U.S. 600 (2004), in which the Court addressed whether, where the police deliberately first obtained un-Mirandized statements from a suspect during custodial interrogation, later adherence to the Miranda warnings-and-waiver protocol rendered admissible a suspect’s subsequent statements.  A plurality of the Court said that the subsequent statements were inadmissible, even though they followed Miranda warnings and waiver, because the initial statements had been un-Mirandized.  However, the plurality looked to a number of factors – “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” – to determine when such mid-stream warnings and waiver would render subsequent statements admissible.

Justice Kennedy wrote a separate opinion concurring in the judgment, agreeing with the outcome, but relying on only one factor: that the police deliberately obtained the first set of statements without adhering to Miranda in order to “soften up” the suspect into waiving her rights on the second go-round.  Had the same police conduct occurred inadvertently, Justice Kennedy presumably would have come out the other way.

Here, the distinction between a concurrence and a concurrence in the judgment is critical.  Had Justice Kennedy written a straight concurrence, presumably he would have joined the plurality, making it a majority.  Anything he wrote in such a concurrence would be important inasmuch as it explains the majority opinion from the perspective of the necessary fifth vote, but it would not have the force of law.  By stark contrast, the opinion as a concurrence in the judgment takes on much more significance.  Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree.  In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point.  In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices.  Lawyers, judges, law students, and academics have struggled to figure out what, if anything, is the holding of Seibert.  Mischaracterizing Justice Kennedy’s separate opinion in that case as a “concurrence” misleads the reader into thinking that she need not engage in that struggle because Justice Kennedy agreed with and joined his colleagues’ multi-factor analysis.  But he didn’t.  A mere concurrence might be enlightening but it is rarely as critical as a concurrence in the judgment when there is no majority opinion.

So “concurring in the judgment” does not mean “concurring.”  Authors and editors need to stop pretending that it does.