7th Circuit judge writes one-sentence 'maybe' concurrence; was it a 'dubitante' opinion?
A short, cryptic concurrence by Judge Richard Cudahy of the Chicago-based 7th U. S. Circuit Court of Appeals used the word “maybe” when he may have meant “dubitante.”
Cudahy’s concurrence (PDF)—to a panel opinion by Judge Richard Posner—simply read: “Unfortunately; and I think the opinion must be stamped with a large ‘MAYBE.’ ”
How Appealing dubbed the one-sentence opinion possibly the “concurring opinion of the day” while Above the Law went further, proclaiming that the opinion was “maybe” the “greatest concurrence ever.”
Above the Law suggested that Cudahy agreed with the outcome but not with Posner’s analysis.
The case involved a bid by a Christian organization to operate a building for single room occupancy rentals in Chicago. The group had claimed a violation of the Religious Land Use and Institutionalized Persons Act by the city. Posner allowed a trial.
It’s understandable that Cudahy may not have wanted to sign on to Posner’s opinion, which is written in Posner’s unorthodox style, Above the Law founder David Lat writes. “Judge Posner’s opinion is conversational, pragmatic, unstructured, and not larded up with case citations,” Lat says in his blog post. “It cites just one statute and one case (and that case citation, cited for procedural history rather than doctrinal discussion, doesn’t really count).”
Perhaps Cudahy should have labeled his concurrence a “dubitante” opinion, Lat says, noting the suggestion made in a tweet by University of California at Los Angeles law professor Richard Re. The term is used in law reports to indicate a judge doubted a legal point but was unwilling to state it was wrong, according to Black’s Law Dictionary.
Lat says a few judges have used the term, including Judge Jeffrey Sutton of the Cincinnati-based 6th U.S. Circuit Court of Appeals. His “dubitante” opinion (PDF) was cited in the Supreme Court’s recent decision on Facebook threats, Re noted on Twitter. (See page 8 of the Supreme Court decision (PDF) in Elonis v. United States.)
