Continuing Legal Education – On the Dubitante Opinion (5/4/22)

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.

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