Continuing Legal Education - On the Dubitante Opinion (5/4/22; 2/1/24)

I updated my legal education today in reviewing a “dubitante” opinion on the issue of prosecutorial immunity. Wearry v. Foster, ___ F.4^th ___, ___, Slip Op. 20 (5^th Cir. 5/3/22), Ho, dubitante, here. The subject of the majority opinion is outside the area of tax procedure, but the dubitante opinion can be issued in any legal context. So, I write about this gap filled in my legal education. (I am somewhat comforted on my ignorance in that a law review article notes that “Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. “  Jason J. Czamezki, The Dubitante Opinion, 39 Akron L. Rev. 1 (2006), here (this is a good resource for more than most would want to know about dubitante opinions).

One place I often turn to first (but not last) on things that are either new to me or fuzzy to me is Wikipedia. The Wikipedia on the dubitante opinion is here. I liked the following by Judge Friendly, a giant among appellate judges, in  Feldman v. Allegheny Airlines, Inc., 524 F.2d 384, 393 (2d Cir. 1975): "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."

Then I poked around a bit further with that legal research tool, Google, and found the following:

Darrell Miller, McGinnis and the Dubitante Opinion (Second Thoughts Blog 4/28/20), here, involving another dubitante opinion, in United States v. McGinnis, 956 F.3d 747, 761 (5^th Cir. 2020), cert. den. 141 S. Ct. 1397 (U.S., Feb. 22, 2021). The final opinion expressing doubt is labeled a concurring opinion rather than a dubitante opinion. I could not quickly ascertain whether the concurring opinion was ever labeled dubitante, but the concurring opinion expresses Judge Duncan’s doubts about the holding in the majority opinion that Judge Duncan also wrote. The concurring opinion thus functions like a dubitante opinion. I have found other instances where a dubitante functioning opinion is called a concurring opinion without further labeling as dubitante. E.g., David Lat, The Greatest Concurrence Ever? Maybe (Above the Law 6/2/15), here, citing Judge Cudahy’s concurring opinion in World Outreach Conference Ctr. v. City of Chi., 787 F.3d 839, 846 (7th Cir. 2015) (the doubt is crisply stated, “Unfortunately; and I think the opinion must be stamped with a large ‘MAYBE’.” In any event, I  recommend Miller’s blog on the general characteristics of the dubitante opinion.

Well, I am educated now at the surface but do not feel the need to delve further into the nuances and glories of the dubitante opinion. Basically, I have concluded that I doubt the additional effort to learn more would be a productive use of my time.

Added 2/2/24 12:00pm: 

From Richard Re, Confidence- and Emotion-Denotive Language (Re's Judicatas 1/29/24), here.

Confidence-Denotive Language

To concur dubitante is a widely recognized, even if unusual, form of confidence-denotive language. (Dissenting dubitante also occurs but is even rarer.) What it means to be dubitante in this context—the Latin word means “doubting”—is not entirely clear. Presumably, however, it signifies a sense of special uncertainty with respect to some or all of the ruling or opinion being joined.

Could it matter, legally, whether an opinion is dubitante? Perhaps so. A unanimous ruling or opinion conveys a sense of settledness stemming from widespread agreement. The fact that one or more of the joining jurists not only was dubitantebut also said as much could undercut the decision’s authority. Perhaps the ruling ought to be more easily reversed, distinguished, or overturned when reviewed by a later court. Or the dubitante jurist himself might look back on his vote with a diminished sense of fidelity to it, ascribing it less weight as a personal precedent.

Interestingly, dubitante denotations have not always been given by the authoring judge. As Neil Duxbury points out in The Intricacies of Dicta and Dissent (2021), reporters have often denoted opinions as dubitante—sometimes sparking controversy. This history shows that conventions surrounding all types of denotive language are more fluid and changeable than one might think. Routine judgment-denotive language such as “concurring” or “dissenting” could be replaced or added to. And, in summary rulings, denotive language is sometimes absent, as the votes of some or all justices may not be indicated at all.

At the same time, dubitante has several features that render it especially suited to formal opinion denotation. Because the confidence of jurists is so central to the judicial system, dubitante votes give practical information to litigants and, as we have seen, arguably have legal import, too. Expressions of judicial self-doubt are also rare and so don’t challenge the primacy of judgment-denotive language. Finally, case reporters quickly settled on a concise, conventional way to express this denotation. By contrast, other types of confidence-denotive language may be less workable—consistent with their general absence from legal practice.

Still, one might wonder whether there is, or could be, a counterpart to dubitante, that is, a confidence-denotive term capable of expressing certitude. That possibility leads to the next, partially overlapping topic. [The next topic is Emotion-Demotive Language.]