Note: Citing opinions that didn't garner a majority
More often than we'd prefer, the strongest, best language in support of a particular argument didn't commmand a majority of the court. Often, judges will write concurring opinions
, stating (1) agreement with the result reached by the majority, but not with the reasoning or (2) agreement with some of the reasoning and the result, but confined to narrower grounds. Other times, a judge won't agree with the result reached or
the reasoning the majority used to get there, and will write a dissenting opinion.
These opinions, strictly speaking, aren't controlling authority
, i.e. courts aren't obligated to follow the rules and analysis articulated in these opinions even if the facts are identical (cf. stare decisis
). However, often the language in these opinions is just too powerful to pass up. Thus, language in these opinions is often cited, even though it isn't binding. In order to avoid misleading the court as to the weight it must assign to such an opinion, the citation must specifically reflect that the opinion being cited is not a majority opinion.
Garceau v. Woodford
, 275 F.3d 769, 781 n.1 (9th Cir. 2001) (O'SCANNLAIN, J., dissenting in part)
Valerio v. Dept. of Prisons
, 306 F.3d 742, 779 (9th Cir. 2002) (FISHER, J., concurring)
The page number following the comma is the "pinpoint cite",i.e.
the specific page within the opinion where the language quoted is to be found. Pinpoint cites avoid the aggravation of having to search for one sentence in a 50-page opinion, that, of course, is buried inside a massive footnote on page 23. Simply put, it's an important way to avoid getting a gavel
thrown at you.
"n.1" indicates that the language quoted is in footnote one
of the opinion. The hallowed Blue Book
has made clear that it is essential to fundamental notions of ordered liberty that there be no space
between the period and the number of the footnote.
When giving the name of the judge who wrote the dissent or concurrence, the judge's last name is all caps, followed by "J." ("Judge") or "C.J."(Chief Judge or
Chief Justice). Also, the name of Circuit Judge Diarmuid O'Scannlain
, whose opinion is cited above, is spelled according to Gaelic
spelling conventions, and is actually pronounced "Dermott O'Scanlon."