For decades, countless jurisdictions have grappled with the ambiguous precedential weight of court decisions that lack a majority opinion. In American jurisprudence, applying a “majority,” “lead,” “concurrence,” or “dissent” label to an appellate court opinion indicates agreement or disagreement with the judgment of the case. When a decision is fragmented (that is, there is no majority opinion), courts often express the judgment of the court with one opinion labeled as the “plurality” or “lead” opinion. Traditionally, labeling an opinion as a “lead opinion” indicates that the reasoning expressed within the opinion has more support than the other opinions written for the court. In some jurisdictions, a lead opinion may also carry greater precedential value than its accompanying opinions. In Washington state, the precedent set by fragmented court opinions is complex and often misunderstood. When the Washington State Supreme Court issues fragmented decisions, it labels one opinion as the lead opinion that expresses the judgment of the court. But labeling this opinion as a “lead” opinion is misleading: these opinions frequently fail to garner a plurality of support and may have less precedential value than their accompanying concurrences and dissents. This practice has led to considerable confusion among those looking for precedential value within the Court’s fragmented decisions. If the lead opinion has less precedential value than an accompanying concurrence or dissent, why is it labeled as the lead opinion? And if not in the lead opinion, where do we find precedential value within a fragmented decision? Labeling an opinion as a lead opinion misleadingly indicates greater precedential value than the opinion may actually warrant. This mislabeling is the result of a clash between the Court’s method for deriving precedential value from its fragmented decisions and its procedure for labeling its opinions. When deriving precedential value from its fragmented decisions, any point of reasoning that receives the assent of five justices—regardless of whether they concur or dissent in the judgment—is binding on a lower court. At the same time, the Court’s rules for designating an opinion as the “lead” ignore the reasoning within that opinion. The focus is only on the judgment. If a majority of the justices agrees in the judgment with the justice that created a prehearing report on the case, that justice writes a majority opinion and circulates it to the rest of the Court. After circulation, if the opinion fails to garner a majority of the court’s support, the Court labels it as a lead opinion. The main issue is this: the lead opinion retains that label even when a concurrence garners more signatures. In sum, the label that an opinion bears provides almost no useful nformation other than whether the justice agreed in the judgment. This Comment argues that the Court should alleviate the confusion surrounding fragmented decisions with one simple solution: the Court should label its opinions in parts. If the Court fragments after the initial majority opinion circulates, the lead, concurring, and dissenting opinions should be broken down into separately labeled parts. Each justice should sign every part of each opinion that they agree with. The Court should then, if necessary, reassign the lead opinion label to the opinion garnering the most signatures that concurs in the judgment.
Piecing Together Precedent: Fragmented Decisions from the Washington State Supreme Court,
94 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol94/iss4/9