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Showing papers on "Plurality opinion published in 1990"


Posted Content
Laura Ray1
TL;DR: The role of the concurrence in the Rehnquist Court has been examined in this article, where the authors identify and examine the ways in which members of the Court have employed this flexible device to serve a variety of purposes, including deferring resolution of a difficult issue to a more suitable case, illuminating for bench and bar the implications of a majority opinion, or placing an opinion in context.
Abstract: The concurrence is a neglected element of appellate jurisprudence. Although there is a substantial literature about the dissent, little has been said about the role of the concurrence. This article identifies and examines the ways in which members of the Rehnquist Court have employed this flexible device to serve a variety of purposes. The limiting concurrence, the most traditional use, allows a member of the majority to qualify agreement through the caveat that the Court's opinion should apply only to the circumstances of the present case. In contrast, the expansive concurrence, a much less common use, seeks to enlarge the applicability of the majority opinion. The emphatic concurrence seeks only to underscore its author's view of the majority position. Finally, the doctrinal concurrence offers its own alternate theory to reach the majority's result; it is the quintessentially right result, wrong reason opinion. The consequences of the use of the concurrence include a substitution of a plurality opinion for a majority opinion, an obstacle to a purely unanimous opinion, or a splintered decision that undermines the force of a more cohesive outcome. Although critics of the Rehnquist Court have complained that such uses weaken the Court's authority, they may also provide benefits by deferring resolution of a difficult issue to a more suitable case, by illuminating for bench and bar the implications of a majority opinion, or by placing an opinion in context. Used with restraint, the concurrence may contribute to a more finely tuned jurisprudence.

8 citations


01 Jan 1990
TL;DR: The role of the concurrence in the Rehnquist Court has been examined in this article, where the authors identify and examine the ways in which members of the Court have employed this flexible device to serve a variety of purposes, including deferring resolution of a difficult issue to a more suitable case, illuminating for bench and bar the implications of a majority opinion, or placing an opinion in context.
Abstract: The concurrence is a neglected element of appellate jurisprudence. Although there is a substantial literature about the dissent, little has been said about the role of the concurrence. This article identifies and examines the ways in which members of the Rehnquist Court have employed this flexible device to serve a variety of purposes. The limiting concurrence, the most traditional use, allows a member of the majority to qualify agreement through the caveat that the Court's opinion should apply only to the circumstances of the present case. In contrast, the expansive concurrence, a much less common use, seeks to enlarge the applicability of the majority opinion. The emphatic concurrence seeks only to underscore its author's view of the majority position. Finally, the doctrinal concurrence offers its own alternate theory to reach the majority's result; it is the quintessentially right result, wrong reason opinion. The consequences of the use of the concurrence include a substitution of a plurality opinion for a majority opinion, an obstacle to a purely unanimous opinion, or a splintered decision that undermines the force of a more cohesive outcome. Although critics of the Rehnquist Court have complained that such uses weaken the Court's authority, they may also provide benefits by deferring resolution of a difficult issue to a more suitable case, by illuminating for bench and bar the implications of a majority opinion, or by placing an opinion in context. Used with restraint, the concurrence may contribute to a more finely tuned jurisprudence.

2 citations


Journal ArticleDOI
TL;DR: The majority opinion, written by Chief Justice Rehnquist, provides a comprehensive review of the state supreme court decisions about life-sustaining treatment, and even if readers of the opinion find fault with the majority's constitutional analysis, the opinion is historically accurate and comprehensive.
Abstract: Surrogate Decisionmaking and Other Matters National attention was focused in 1990 on the appropriate role of family or other surrogates in health care decisions. Accordingly, surrogate decisionmaking is the dominant theme of this review of recent work in health care law. Topping the list is the United States Supreme Court's opinion in Cruzan v. Missouri Department of Health, 58 L.W. 1916 (26 June 1990). Whether commentators like or agree with the Court's opinion, it must be read with care by those who want to understand the issues involved in surrogate decisionmaking. Many state supreme courts have answered questions about decisions to withhold or withdraw medical care: the majority of these cases have dealt with health care decisions on behalf of incompetent adults, and have produced a variety of approaches and outcomes. In June 1990 the United States Supreme Court issued its opinion in the Cruzan case, the first "right to die" case the Court has considered. Acknowledging a competent adult's constitutional right to refuse life-sustaining treatment, including artificially provided nutrition and hydration, the Court nonetheless ruled that it was not unconstitutional for the State of Missouri to require "clear and convincing" evidence of a person's wishes, expressed when the person was competent, about forgoing or withdrawing life-sustaining treatment when a family member or other surrogate seeks to make the decision on behalf of an incompetent patient. The majority opinion, written by Chief Justice Rehnquist, provides a comprehensive review of the state supreme court decisions about life-sustaining treatment; even if readers of the opinion find fault with the majority's constitutional analysis, the opinion is historically accurate and comprehensive, especially if one reads the footnotes. But it is for the separate opinions that the Cruzan case is so instructive. Two justices of the five-justice majority wrote separate concurring opinions and two dissenting opinions were filed. One must read these opinions with the recognition that they represent the thinking of the nine Americans who can most directly affect individual privacy as it relates to health care decisions. Another important document relating to family decisionmaking is the new New York Health Care Proxy Law, passed by the legislature a few days after the Cruzan decision was handed down. (For a copy of the law, a suggested form, and a brochure write to: New York State Department of Health, Box 2000, Albany, NY 12220.) The law allows a competent adult to name someone who will have authority to make all health care decisions if the person becomes unable to decide for himself. …

1 citations