Concurrence, Posner-Style: Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner

I. Introduction II. The Nature of Concurring Opinions A. Background B. Some Traditional Views on Concurring Opinions C. Recent Takes on Concurring Opinions III. Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner A. Statistics B. Different Ways to Look at Posner's Concurrences 1. Posner as Congressional Adviser: Reflections of His Far-Reaching Intellect and Energy 2. Posner as Advocate of Law and Economics: His Leitmotif 3. Posner the Institutional Critic: His Concern with Core Competencies, Boundaries, and Purposes 4. Posner as Nitpicker: Two Views a. Posner is a Nitpicker b. Posner is Not a Nitpicker 5. Posner as Weaver of Hypotheticals and Wordplay: The Law Professor as Judge 6. Posner the Great: Of Finding and Cutting Judicial Gordian Knots 7. Posner as Reader and Interpreter of Statutes: Searching for Pragmatic Construction 8. Posner's Concerns About Standards of Appellate Review: Judging Lower-Level Decision-Makers 9. Posner Speaking Frankly: Bracing Directness as a Stylistic Technique 10. En Banc Posner: Adding His Two-Cents IV. Some General Observations and Insights A. Judge Posner's Evolving Style: The Strategic Inspiration of Consubstantiality B. The Aesthetics of Judicial Concurring Style V. Conclusion I. INTRODUCTION While a significant body of legal scholarship has emerged on appellate judicial opinion style, (1) little systemic study has been given to examining the nature of modern American concurring opinion style. Style is an ambiguous and eclectic concept, and the opinion style of Judge Richard A. Posner, former Chief Judge of the United States Court of Appeals for the Seventh Circuit, and oft-mentioned candidate to become a Justice of the Supreme Court of the United States, is worth trying to delineate and to understand. (2) In a series of three previous articles, I analyzed Judge Posner's general opinion style during his "rookie season" as a federal appellate court judge, (3) Posner's inchoate dissenting opinion style over the course of his first decade on the court of appeals, (4) and his maturing dissenting opinion style in his later years on the bench. (5) In this Article, I turn to Judge Posner's concurring opinion style during his first quarter century of appellate judging. The structure of the remainder of this Article, before my conclusion, is as follows. First, in Part II, before taking up Judge Posner's concurring opinions, I probe for a working description of the nature and motivations for modern American concurring judicial opinions by looking at previous legal scholarship and exemplars of judicial concurrence. (6) In Part III, I analyze the published concurring opinions written by Judge Posner during 1981-2006--his lifetime tenure to date on the federal appellate bench. (7) Finally, in Part IV, I offer some general observations about Judge Posner's concurring opinion style, and consider some implications of my study for better understanding the form and function of American concurring judicial opinions. (8) II. THE NATURE OF CONCURRING OPINIONS A. Background Interestingly, and ironically, the etymology of the word concur starts in the fifteenth century as meaning "to run together, assemble, meet, rush together in hostility" and "[t]o run together violently or with a shock; to come into collision; to collide." (9) Over the ensuing centuries concur softened in meaning to also encompass "flow[ing] together, as streams (material or immaterial)," "[t]o converge and meet," "[t]o combine in action, to co-operate," and "[t]o agree in opinion." (10) The cognate word concurrence developed a few centuries after the first English usage of the word concur. …