Florida Bar Journal

Concurrals, Dissentals, and this Commental

Illustration by Barbara Kelley

Increasingly, appellate judges are “writing dissents from, and concurrences in, orders denying rehearing en banc^[2] — colloquially known as dissentals and concurrals.”^[3] Although the juridical lexicon has garnered support, some judges have “lamented their proliferation”^[4] and labelled them as “solipsistic creations.”^[5] However, these naysayers fail to recognize that, inevitably, dissentals and concurrals shape the path of law.^[6] “By encouraging the free and thorough canvassing of issues,”^[7] these neologisms provide insight into the judicial decision-making process. Furthermore, these “thinly…veiled entreaties to the Supreme Court,” focus public scrutiny on a case. ^[8] This commentary posits that dissentals and concurrals have become normative practices, within the appellate process, and proposes a revision to the Florida Rules of Appellate Procedure.

What’s in a Name?

“Action without a name…attached to it, is meaningless.”^[9] “Dissent.” The etymology of “dissent” stems back to the mid-15th century. From the Latin verb dissentire, the term is an amalgam of dis, or “difference,” plus sentire, “to feel.”^[10] Today, the term is construed to mean contrariety of opinion.^[11]

“Concur.” Similar to its counterpart, the etymon of concur originated in the 15th century. Formed by the morphemes com, “together,” plus currere, “to run,” the verb denotes concurrent events.^[12] Within the appellate forum, the definition has crystallized to signify an “accordance in opinion.”^[13]

The label conferred upon a concept provides insight into the function of the concept. In the legal realm, dissents and concurrences refer to generalized opinions. Unique to reviewing bodies, dissents and concurrences operate independently from the majority opinion. Each opinion is an explanation — one as to why a jurist deviated from the majority stance. Within their given definitions, dissents and concurrences encompass “procedural orders, jurisdictional orders, dismissals for mootness, the grant or denial of certificates of probable cause, and certificates of appealability — to name just a few.”^[14] However, given the lack of specificity, the name, in itself, does not bespeak the judicial proceeding the opinion arose from.

“Dissent-al.” “Concurr-al.” These neologisms, referring to a dissent and a concurrence from the denial of rehearing en banc, were minted by Judge Kozinski.^[15] By fusing “dissent” and “concur” with the suffix -al, Judge Kozinski coined names for the now institutionalized practices. Critics contend that the nomenclature was fashioned “out of whole cloth”^[16] and insist that these “un-words have no proper place in the judicial lexicon.”^[17] However, bestowing a name can legitimize a practice. The convention already existed; Judge Kozinski merely acknowledged it.

“So, what value is there in adding -al to dissent and concur?”^[18] Much. From a semantic standpoint, the -al suffix functions as a clarifier. In linguistics, the suffix -al loosely translates to “of the kind of, pertaining to, or having the form or character of that” named by the stem.^[19] The morphological process of affixing -al to base words highlights that dissentals and concurrals possess the “form or character” of their namesakes yet are markedly distinct. While dissents and concurrences are associated with routine panel decisions, dissentals, and concurrals refer to opinions that are inextricably linked to a procedural order denying review.^[20] The new nouns do not “compete with synonymous words of different formations,” but, rather, underscore the nature of the opinion. ^[21]

Notably, the newfound terminology is not afforded a higher or lower stature than concurring and dissenting opinions. Instead, the nomenclature merely imbues the law with more specificity. By attaching the -al suffix, dissent-als and concurr-als typify the kind of proceeding each is predicated upon. Furthermore, the label engenders predictability and consistency throughout the legal process. Unique practices warrant unique names. Consequently, these legal creatures should not be concealed by a misnomer but vindicated in their -al form.

Institutional Framework and Theoretical Underpinnings of En Banc Proceedings

In Florida, Appellate Rule of Procedure 9.331(d) governs the determination of cause for rehearings en banc.^[22] Pursuant to the rule, a pending case must be evaluated by all judges in regular active service, and not by the assigned panel of three, if a majority of the judges vote to rehear the case en banc.^[23] Notably, voting on a “party’s motion for rehearing en banc is not automatic — a judge must request the vote, absent which the motion is administratively denied.”^[24] The request for a vote, on a party’s motion, can emanate from a panel or non-panel judge, and “the resulting internal dialogue can be tepid or fierce.”^[25] Akin to its federal counterpart, Rule 9.331(d)(1) outlines that en banc rehearings shall not be ordered unless necessity dictates uniformity in decisions or the case or issue is of exceptional importance.^[26]

• Uniformity in the Court’s Decisions — After a 1980 revision of the Florida Constitution, and the concomitant adoption of Rule 9.331(a), the Supreme Court lost jurisdiction to review intra-district conflicts.^[27] Inspired by federal construction, the Supreme Court’s certiorari jurisdiction was subsequently confined to express and direct inter-district conflicts.^[28] The interrelationship between the rule and the constitutional amendment underscored that the district courts should, to the extent possible, function as final appellate courts.^[29] This appellate structural scheme was intended to provide litigants with an unequivocal statement of the law and, thereby, reduce intra-circuit inconsistency.^[30] Intra-district conflicts, in turn, are now resolved exclusively by the en banc procedure.

In the leading case of Chase Federal Savings & Loan Association v. Schreiber, 479 So. 2d 90 (Fla. 1986), the Supreme Court reaffirmed the constitutionality of this appellate paradigm. By doing so, the court furthered “a primary function of the en banc rule,” which “is to standardize the decisions of each district so as to minimize the importance of the ‘luck of the [appellate] draw’…in presenting cases before increasingly multi-member courts.”^[31] Without en banc review for uniformity, the district court would “merely be an ‘assemblage of…randomly-assigned, and autonomous, three-judge panels each doing as it sees fit.’”^[32] The consistency of decisions within each district is paramount to the credibility of the judicial system.

• Exceptional Importance — “The authority to allow reconsideration by an entire district court of appeal, in cases of exceptional importance, was added by a 1984 amendment to Rule 9.331.”^[33] However, the “exceptional importance” criterion has proven more intractable than the uniformity standard. Exceptional importance is left undefined in the rule, and only a handful of Florida decisions expressly address the factors that may render a case “exceptionally important.”^[34] From a definitional standpoint, a case of exceptional importance must possess a quality distinguishable from the ordinary, run-of-the-mill case.^[35] Yet, even with the addition of the adverb, “exceptionally,” the adjective “important” retains a subjective quality. Consequently, the glib answer, often repeated by practitioners and judges alike, “is that a case is of exceptional importance whenever a majority of the judges on a district court say that it is.”^[36]

• Denial of a Rehearing En Banc — Because there is no appellate process to review the denial of a motion for rehearing en banc^[37] the dissental functions as a judicial “Hail-Mary.”^[38] It is unsurprising that disagreement about whether to review a case en banc becomes sharp enough to motivate a dissent from a request’s denial. Cases warranting such review are those in which the stakes are unusually high, or the law is especially unclear.^[39] Judges retain wide discretion in deciding which cases are important enough for the attention of the full bench.^[40] Dissentals accompanying procedural orders denying en banc review stem from the disagreement among judges about how to exercise that discretion.

Nevertheless, since judges aren’t required to explain their votes, it is indeterminate whether votes against en banc review reflect views on the merits or a conviction that review is statutorily unjustified.^[41] “A gray area of uncertainty can arise where a majority of a court disagrees with a panel decision but lacks the en banc votes to deem the case, or one of its issues, of exceptional importance or necessary for uniformity in its precedents.”^[42] Without clear guidance, “a murky and malleable jurisprudence can result.”^[43]

Historical Underpinnings of Concurrals and Dissentals

After losing an en banc vote in 1943, Judge Denman from the Ninth Circuit penned the first known dissental.^[44] The dissental symbolized a departure from the conventional practice “that en banc decisions could only be made by one of the judges who decided the case.”^[45] Denman argued that this custom was the judicial equivalent of the “fox guarding the henhouse.”^[46] Thereafter, he continued his affront to the censorship of non-panel judges in subsequent opinions. Ultimately, Denman was vindicated, if posthumously, by the adoption of Federal Rule of Appellate Procedure 35.^[47]

In 1960, Judge Clark seized the proverbial pen. After being outnumbered on an en banc vote, he wrote a dissental excoriating the Second Circuit for not taking the case. In response, Judge Friendly “took umbrage, impugning the legitimacy of a practice that enabled any active judge to publish a dissent…although he did not participate in it.”^[48] Recently, one of Judge Friendly’s successors, Judge Pooler, reiterated his complaint. She characterized dissentals as “oddities” with “as much force of law as if those views were published in a letter to the editor of [the authors’] favorite local newspaper.”^[49] Ironically enough, to castigate dissentals, procedural cynics nevertheless use their counterparts — concurrals.^[50]

Ubiquity of Concurrals and Dissentals

Whether regarded as “an established and useful part of the appellate process”^[51] or an “en banc missive,”^[52] dissentals from denials of rehearing en banc have become a mechanism by which judges publicly critique their colleagues’ work.^[53] Since the first dissental in 1943, appellate judges have employed them with increasing regularity. By the end of 2012, federal judges had drafted more than 1,275 dissentals in well over 1,000 separate cases.^[54] And these are not the province of a few outspoken judges or a subset of particularly contentious circuits. More than 270 appellate judges have written at least one dissental, 81 have written five or more, and 31 have written at least 10.^[55] Hundreds more have been filed in the courts of appeals nationwide.^[56] “Some judges are so dissental-happy that they file two within the same case.”^[57] Far from an aberration, dissentals and concurrals are now entrenched in judicial practice.

Judicial Right to Public Dissent(al)s

Inherently, the court is paradoxical — it is simultaneously both the whole and its constituent parts.^[58] Generally, critics of dissents advocate the primacy of the unit, over its members, and argue that the court is most legitimate, most true to its intended role, when it speaks with a single voice.^[59] As Chief Justice Roberts capitulated, “dissent is a symptom of dysfunction.”^[60] Individual judges are urged to yield their views to the paramount need for unity. But unanimity is not, in itself, a judicial virtue.^[61] “Ironic as it may seem, a high percentage of the worst opinions of the court…are unanimous ones.”^[62] Indeed, “artificial unanimity — the suppression of dissents — deprives genuine unanimity of the great force it can have when that force is most needed.”^[63]

There is a significant body of literature about why judges, in American jurisprudence, exercise the right of public dissent. A dissent is a public disagreement with the actions of a body of which a judge is a member.^[64] It is an emphatic declaration that the judge would follow a different course of action, given the opportunity. Justice Cardozo characterized the dissenter as “a gladiator making a last stand against the lions.”^[65] Kathleen Sullivan compared great dissents to “buried ammunition for future generations to unearth when the time comes.”^[66] Collectively, this epideictic rhetoric highlights that a dissent can be a mighty armament. The dissenter’s pen is their sword, the law their shield. Thus, there is nothing a collegial court does that is so trivial that it does not occasionally provoke a dissent — and no one bats an eyelash.^[67] Judicial dissents are indispensable weapons in legal warfare. “Why then the apoplexy about dissentals?”^[68]

Notwithstanding their ubiquity, dissentals appear to be facially incongruous. Dissental detractors, argue that they are opinions with no precedential weight and, oftentimes, are written by judges absent from the panel that decided the underlying case.^[69] Although the judges have not been privy to the parties’ arguments, nevertheless, they “freely set out their views of the case’s substantive merits — often in considerable detail.”^[70] But this misses the point: the judge is not dissenting from the panel opinion, but, rather, from the order of the court declining to hear the case en banc.^[71] That criticism will necessarily entail a discussion of the merits.^[72] Dissentals reflect a judge’s indignation at the panel for deciding the case wrongly and at the district or circuit for failing to appreciate the gravity of the panel’s error, as well as exasperation at the institutional inability to rectify the perceived mistake.^[73] Among the most candid expressions of such sentiments is the lament of Judge Chambers: “I think the far-reaching implications of the majority’s holding…richly merits consideration of the original decision by our court en banc, but I am helpless because the simple arithmetic of one plus one is greater than the sum of one plus none.”^[74] As is frequently the case, Judge Chambers possessed the “necessary will, but not the necessary votes.”^[75]

Subsequent debates have further amplified the arguments in favor of and against the practice. Critics argue that dissental authors inappropriately act as advocates rather than jurists, interposing themselves in cases they have not been assigned to. For example, Professor McGowan chided dissental authors for “seeing issues rather than parties, angles rather than facts, and a soapbox rather than a bench.”^[76] Similarly, Judge Pooler lamented that dissentals “amount to an exercise in free speech, rather than an exercise of judicial function.”^[77]

Moreover, some expostulate that the practice of writing rehearing dissentals and concurrals approximates a return to seriatim opinions.^[78] A subset of jurists regard the practice as renewing the “habit of caucusing opinions”^[79] and exposing internal division publicly.^[80] These judges look askance at rehearing dissentals and concurrals as “subversive literature.”^[81] Yet, dissentals and concurrals are not analogous to the Jeffersonian creed that each judge deliver a separate opinion on every case before the court.^[82] Rather, the procedural devices are tools of necessity, invoked sparingly.^[83] Since 1982, Florida’s appellate courts have collectively issued 492 en banc opinions — on average, 13 en banc opinions per year.^[84] There is a judicial predisposition “to avoid the en banc process and its rancor entirely, invoking it only as a last resort in extraordinary situations.”^[85] The paucity of en banc procedures belies the amount of judicial resources expended.^[86] En banc review takes time and energy, both of which may be in short supply, making resource allocation teeter presumptively against review.^[87] Thus, judges are likely “to activate the en banc machinery only if they perceive that the benefits exceed the high costs of the process.”^[88] Dissentals and concurrals are a response to an adversarial motion^[89] to initiate an en banc proceeding. Accordingly, concurrals and dissentals exist as concentric zones within the en banc procedure — standing as objections to the court’s decision to not further examine the merits of a case. Neither “bears any precedential value: only the word ‘reversed’ in the per curiam opinion announcing the result of the panel’s handiwork does.”^[90]

Additionally, commentators aver that dissentals “rub against the grain of art. III’s ban on advisory opinions.”^[91] That ban has long been a necessary corollary to the rule that courts may not issue abstract pronouncements of law, because courts exist to resolve justiciable controversies that affect the rights of parties.^[92] Critics contend that dissentals do not implicate the rights of parties since they are reactionary measures to procedural orders denying review.^[93] Yet, although dissentals might be tantamount to advisory opinions, “in the sense that they do not bind courts or litigants, the same can be said of every dissent and most concurrences ever written.”^[94] This broad generalization would encompass “decisions by courts of coordinate or inferior jurisdiction, restatements, treatises, law review articles, biblical references, the Talmud, the Koran, Roman law, Hammurabi’s Code, the Napoleonic Code, Gratian’s Decretum, Saint Thomas Aquinas, Sun Tzu, and decisions of various international tribunals.”^[95] Rather, dissentals and concurrals fall comfortably within the definition of persuasive precedent.^[96]

Furthermore, detractors allege that dissentals undermine the perceived finality of judicial decisions and reduce the standing of the courts in the eyes of the public.^[97] These naysayers seek to avoid the public perception that the court is beset with ideological infighting. Critics charge that dissentals “inappropriately constitute a naked call for Supreme Court review, consume excessive judicial resources, damage court collegiality, and use litigants as instrumentalities to score political points.”^[98] As Judge Randolph vehemently declared, “denials of rehearing en banc are best followed by silence.”^[99]

Proponents, in contrast, regard dissentals as a positive contribution to the law — one relied upon by other judges, lawyers, academics, legislators, and the public alike. Internally, the dissental counterbalances the majority’s analysis (internal corrective function) and effectuates the author’s individual perspective (self-expression function).^[100] Externally, the dissental stimulates legal discourse (law laboratory function) and influences the weight that the majority carries with other courts, government actors, and the public (external corrective function).^[101]

• Internal Corrective Function — Winston Churchill once said that, despite the arduous nature of public office, he never desired to be relieved of his duties as prime minister. Rather, he noted that, “[a]ll I wanted was compliance with my wishes after reasonable discussion.”^[102] This, too, is the fantasy of a dissenting appellate judge.^[103] The internal corrective function is actualized when a dissent persuades a subset of judges to alter their votes, so that the dissent controls as the new majority.^[104] Justice Scalia posited that such changes are not rare, but the citizenry is unlikely to know how commonplace the process is, because a dissent’s transmutation into the majority is part of an internal deliberative process.^[105]

In its own fashion, a rehearing dissental may also serve the internal corrective function. Appellate courts exist to clarify law and remedy legal errors, yet the law the majority articulates is only as good as its reasoning.^[106] “The dissent[al]er’s ability to challenge and refine that reasoning goes a long way towards justifying the dissent[al]’s existence.”^[107] Dissentals force the majority “to hone and tighten its analysis, to omit those arguments that are most vulnerable to objections, to recast loose language that can be held up to public criticism, and to acknowledge substantive limitations.”^[108] Indeed, there is a possibility that a compelling dissental — circulated internally — could change the minds of those who voted against en banc review.^[109]

Nevertheless, even when an en banc motion fails after a court vote, the adjudicative process benefits from the internal discussion.^[110] The “collective wisdom of the court comes to bear on the process, which often makes the end-product better, and eliminates rough edges and surplusage.”^[111] Consequently, a lopsided denial of en banc review, is not and need not be the end of the story.^[112] And, of course, judges who think the dissental is wrong or unfair may file a concurral.^[113]

• Self-Expression Function — Ostensibly, judges don black garments to underscore their common purpose. “It serves, too, as a reminder of the modest station…judges are meant to occupy in a democracy.”^[114] “In other countries, judges wear scarlet, silk, and ermine…ours is a judiciary of honest black polyester.”^[115] Why the gavel? Why the bench? Why the robe? Because these accoutrements call attention to the office, rather than the officer. The uniformity of apparel reduces distinctions and highlights that judges are “standing united symbolically, speaking in the name of the law.” The uniformity of their apparel reduces distinctions and highlights that they are “standing united symbolically, speaking in the name of the law.”^[116] Nevertheless, permitting individual expression, through occasional dissentals, may relieve the pressures that such a sacrifice might otherwise create.

Ordinarily, self-expression in the circumscribed legal sense is not a legitimate purpose for a judge authoring a majority opinion.^[117] Majority “opinions are the product of a consensus and should represent the composite view of a court; they should not be a clone or scion of their authors.”^[118] Dissents, however, are not so limited. Separate opinions are institutionally accepted avenues for judges to articulate their true evaluation of the case, deviating from monolithic solidarity. “Dissents often exude an infused passion, an expressive potency, and even a telltale hint or two of not-so-latent literary leanings…that are typically lacking in more homogenized majority opinions.”^[119] Some of a judge’s best work may live in separate opinions, “in which the judge is free to sing in full voice, sad though the tone of the song may be.”^[120]

Dissentals have become a mechanism for judges to express a view on the merits of cases when the “luck of the draw” does not assign them to the original three-judge panel.^[121] Under the appellate structural scheme, “each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole.”^[122] The purpose of the en banc process is to “unify a court’s jurisprudence, rather than potentially fracture it by giving decisions of three-judge panels preferred or protected status.”^[123] “Expecting…[15] district judges, to herd themselves into voting blocs producing at least one majoritarian legal position is overly-optimistic, some might say Pollyannaish.”^[124] Without the recourse of a dissental, a judge would be unfairly silenced; forced to let three judges speak publicly at the behest of the court.

However, the dissental is not without substantive limitations. In the en banc context, self-expression does not entail the communication of nonlegal thought, such as politically charged diatribes or emotional rhetoric.^[125] Rather, the dissental is constrained to reflect the author’s reasoned analysis of the merits of the case, as well as the doctrinal flaws of the majority opinion.^[126] Despite a dissentaler’s abstainment from political or emotional expression, critics argue that a dissental, by a non-panel judge, does not rest upon a firm foundation. When the rehearing dissentaler is a panel dissenter, the dissental is accorded a firm basis — tinged with legitimacy.^[127] However, when the rehearing dissentaler was not on the initial panel, detractors opine that the judge has not read the entirety of the record, participated in oral argument, or discussed the case in conference.^[128] Instead, critics contend that the rehearing dissentaler has formed an impression based entirely upon static materials.^[129] In their view, this comparatively weak basis for decisionmaking undermines the legitimacy of self-expression.

Yet, this criticism illuminates a paradox. “The court’s refusal to convene en banc motivates the dissental; yet, it is also that refusal that deprives the dissent[al]er of the oral argument and postargument conference which might make the dissent[al]er’s criticisms rest on more secure ground.”^[130] When a nonpanelist has a reasoned objection to a panel opinion that has gone unanswered upon denial of en banc rehearing, the only mechanism to publicize their disputation is through a dissental. Although the self-expression function is best effectuated through panel dissents, the dissental may be a second-best, but necessary, recourse.^[131]

• Law Laboratory Function — Moreover, a dissental has the inherent ability to stimulate legal discourse. An internal policy of filing separate opinions helps to keep the court in the “vanguard of the law’s intellectual vibrancy.”^[132] “When it is functioning properly, an appellate court of last resort is not just a locus of legal judgment; it is a living, legal nerve center, a law laboratory, and a lyceum for critical legal research and development.”^[133] The side-by-side orientation of the majority and the dissental furnishes “readers with access to incisive criticism and contrarian thinking.”^[134] Thus, it is not only law school professors who are able to provoke and foment discussion regarding the courts’ latest rulings. Rather, appellate judges partake in the exercise as well, even as they decide the cases themselves.^[135]

Additionally, the First Amendment’s free-speech guarantee promotes an “uninhibited marketplace of ideas,” and dissentals may simply be one of many vehicles for introducing new ideas into the marketplace.^[136] However, the likelihood of a singular dissental attracting outside attention and contributing demonstrably to the legal debate is de minimis. As Judge Posner stated, dissent writing is comparable to “salmon breeding in the wild,” because it is “a high-risk, low-return activity.”^[137] Thus, while many judges pen dissentals, only a precious few will gain attention outside the court.

Notably, this law-laboratory function alone is not enough to justify the existence of dissentals. A cacophony of voices is ill-suited to convey stability in the law. Akin to seriatim opinions, or contemporary plurality opinions, fragmentation weakens the jurisprudential system. Furthermore, there is a demarcation line between judicial function and academic product — “cases pose live controversies between parties and are not simply opportunities for abstract intellectual exchange.”^[138] Legal questions presented to a court should be resolved, “not in the rarified atmosphere of a debating society, but in a concrete factual context” conducive to judicial action.^[139] Reminiscent of live replays debated on ESPN panels, the image of a judge as a commentator might amount to an exercise in unreviewed self-publishing. In practice, dissentals and concurrals might operate as vehicles for extra-judicial abstractions, shrouded as legal opinions. In the obverse, “a panel dissent does not raise this concern as easily, because such a dissent can become the law of the circuit with the mere shift of one panelist’s vote.”^[140]

• External Corrective Function — “And even when the en banc vote isn’t close, a dissental can shape the path of the law.”^[141] By altering the way the majority’s reasoning is perceived by other courts, legislatures, and litigants, the procedural device also serves an external corrective function.^[142] The mere fact that a number of appellate judges took pains to voice their public disagreement is significant in itself.^[143] It no doubt increases the likelihood of certiorari review and causes a domino effect within the judicial forum.

The external penumbra, impacted by the dissental, includes horizontally and vertically related courts — namely, district courts, other circuits, and the Supreme Court.^[144] First, the lower courts in the circuit, though bound by the panel opinion, may be cautious in applying a contentious opinion to an analogous factual scenario. Second, a sister circuit, when facing an issue that provoked multiple opinions, may elect to adopt the panel’s view, to avoid a split in authority, or, alternatively, may reevaluate the issue anew. A dissental, thus, reduces the persuasive weight that a panel opinion from one circuit carries in another circuit.^[145] Third, the Supreme Court may look at dissentals as red flags warning it about especially urgent questions that need authoritative answers. As Justice Ginsburg articulated, “separate opinions in intermediate appellate courts serve an alert function.”^[146]

Tactical Concurrals

Since Judge Denman penned the first dissental in 1943, the proprietary of the procedural device has sparked scholarly and judicial debate.^[147] Amid hyper fixation on dissentals, their counterparts, concurrals, have received comparably less attention. Although, at first glance, tactical concurrals appear too rare^[148] to merit further study, they present an appealing tool to judges seeking a swifter path to finality and resolution of circuit splits. Unlike dissentals and standard concurrals, tactical concurrals pursue a “particular strategic objective — hastening Supreme Court review by voting to uphold the panel’s decision despite disagreement with the outcome.”^[149] Tactical concurrals posit that cases that fit the judiciary’s criteria for en banc review are — counterintuitively — less deserving of rehearing en banc.^[150]

Under the Florida Rules of Appellate Procedure, even though rehearing en banc is “not favored,” it may be granted to “maintain uniformity” or to rehear cases concerning questions of “exceptional importance.”^[151] As aforementioned, what constitutes “exceptional importance” has not been conclusively defined, leaving the decision to proceed en banc within judicial discretion. A tactical concurral capitalizes on that discretion and uses the en banc review “as a tool for expediency, rather than a reflection of the implications of the case.”^[152] Although a judge might aver that the issues fall within the ambit for en banc review, the tactical concurral, nevertheless, argues that the better course is “for the Supreme Court to grant certiorari and reverse.”^[153] If the tactical concurral’s plea, to the court, “succeeds at gaining certiorari, it will limit the dangers that a circuit split, poses to the administration of the law, and constitute an efficient use of judicial resources.”^[154] And as dissentals proliferate, tactical concurrals may become another mechanism to provide more effective signals to the court.

Proposed Revision(al)s and Enhance(al)s

“The panel has, sincerely and with commitment to the Constitution, done much. The full court should finish the job they have begun.”^[155] Dissentals and concurrals unquestionably offer more than a modicum of value, as even their staunchest critics acknowledge.^[156] They serve indispensable corrective, “law laboratory,” and self-expression functions, at a tolerable systemic cost.^[157] Moreover, they provide a means of criticizing an appellate court’s en banc procedure when alternative avenues for protest are precluded. As a practical matter, dissentals and concurrals will indubitably remain a part of the judicial arsenal, regardless of the volume of legal and academic criticism they engender.

But the continuing existence and undeniable utility of dissentals and concurrals do not mean they are an unalloyed good.^[158] At times, the devices increase judicial workloads, threaten to damage collegiality, and generate confusion about the state of the law.^[159] With these in mind, guidelines may help check the proliferation of dissentals and concurrals, allowing their salutary effects to continue while limiting their potential harms.^[160] Consequently, an addendum to the Fla. R. App. P. 9.331 that explicitly authorizes and regulates dissentals and concurrals would be judicially expedient. In the absence of such an amendment, the practice of dissentals and concurrals would remain a benefit if tempered by the following recommendations.

Because of the strong policy arguments in favor of dissentals and concurrals, and the practical problems that have arisen in the en banc decisional process, consideration should be given to adopting a revised Rule of Appellate Procedure that memorializes these legal creatures. Notably, the Third Circuit’s Local Rules outline a potentially workable modification.^[161] Pursuant to 3d Cir. I. O. P. 9.5.8 (2018), if there is a dissent from the denial of rehearing, “any active judge may file an opinion sur denial of the petition and direct its publication.”^[162] The juridical lexicon “sur” roughly translates to “on; upon; over.”^[163] Thus, the Virgin Islands’ Internal Operating Procedure explicitly codifies the right of a dissenting jurist to publicize a dissental in conjunction with the denial of the petition.

Fla. R. App. P. 9.331(d)(3) governs the disposition of motion for rehearing en banc.^[164] Arguably, the verbiage delineated in the Virgin Island’s code should be juxtaposed onto Fla. R. App. P. 9.331(d)(3).^[165] Because every eventuality, every possibility can never be foreseen, this amendment would lower the statutory threshold and allow opinions, concurring or dissenting from the court’s order denying a motion for rehearing, to be published. As Judge Berzon stated, “asking judges to refrain from publishing their deeply felt views in favor of institutional coherence and finality just does not work.”^[166]

Alternatively, the guideposts enumerated below would enhance the efficacious nature of the devices. Targeting their scope would further legitimize the practice. First, if the panel opinion already contains a dissent, the author of a potential dissental or concurral should ensure that the proposed opinion contains unique arguments that the panel dissent neglected to include. “If the deviations between the panel dissent and the proposal are merely ones of emphasis, the judge should refrain from publishing.”^[167] Similarly, to the extent the judge’s goal in drafting the separate opinion is primarily to parrot the panel’s arguments, or broach inconsequential points, the separate opinion should be avoided. Apocryphal is the judge who dissents for reasons so aptly expressed in the majority opinion.^[168] Additionally, it is axiomatic that the scope of the dissental should be confined to the error in the reasoning of the majority denying rehearing. Otherwise, dissentalers would be given carte blanche to inject new arguments not contemplated by a panel member.

Second, once a judge has elected to file a dissental or concurral, the author should make a concerted effort to keep the opinion within the boundaries of the case. The four corners of the dispute should guide the judicial inquiry. Notably, dissentals and concurrals are properly regarded as a commentary upon an existing panel decision, rather than an alternative to it. Although they may constitute persuasive precedent; dissentals and concurrals should be read in conjunction with the panel decision, not in its place.^[169] Accordingly, the separate opinions should contain only the supplemental material necessary to make its point. “A full recapitulation of a case’s facts and procedural history are unnecessary surplusage.”^[170]

Third, the appellate courts should endeavor to make their en banc votes public. Announcing voting alignments, in conjunction with dissentals and concurrals, would be judicious. The absence of such a notation might be indicative of artificial unanimity — a systematic tally summons the appellate judge to stand up and be counted. This disclosure would militate against the otherwise secret aspects of the deciding process and reflect the closeness of a vote to take a case en banc. Alternatively, to the extent such concerns animate the decision to publish a dissental or concurral, disclosing votes, on en banc calls, “could reduce the impetus for writing a separate opinion in every significant case a judge believes was decided wrongly.”^[171]

Publicizing en banc votes is a highly contentious issue — even so, the balance favors vote disclosure. Disclosing en banc review votes provides transparency for litigants, lawyers, academics, and the public at large.^[172] Moreover, to the extent dissentals and concurrals are used as signals to the Supreme Court, publication of the vote would furnish the court with the numerical alignments of the lower court.

Opponents have cited a myriad of arguments against divulging the outcome of review votes, but these fail to withstand scrutiny. First, critics contend that announcement of the votes might coerce judges to vote when they would prefer to abstain. However, as Judge Reinhardt enumerated, “the votes on en banc calls constitute a part of a judge’s performance of judicial duties.”^[173] Individual judges may opt not to vote on cases, but such abstention need not be shielded from public scrutiny.^[174] Second, opponents avow that publicizing en banc votes might lead to an increase in concurrals and dissentals, lest the votes be misinterpreted. However, existing evidence does not corroborate this fear, since in the circuits with mandatory publishing there has not been an appreciable increase in the number of explanatory opinions.^[175]

Conclusion(al)

“Dissentals, and concurrals, should not be dismissed as the products of isolated judicial voices carrying no further than the court from which they originate.”^[176] They are proliferating at unprecedented rates. This commentary has proposed several guidelines that, although modest, would allow dissentals and concurrals to continue to perform their useful functions while reducing their excesses — “a result that minimizes intrusion on judicial prerogatives while benefiting the legal system as a whole.”^[177]

^[1] In re Jane Doe, 136 So. 3d 748, 750 (Fla. 1st DCA 2014) (Makar, J., dissenting from denial of rehearing en banc) (borrowing the terms “dissental” and “concurral” and initially coining the term “commental”).