The Road Not Taken: Comparative International Judicial Dissent

Abstract

and the Journal's anonymous reviewers for perceptive comments and productive dialogues. We also thank the judges, court officials, and practitioners that we interviewed, to whom we promised anonymity. 1 HOMER, THE ILIAD, bk. XVIII, lines 497-508. 2 Our study encompasses all judicial opinions that accompany a court's judgment, whether denominated a dissent, concurrence, declaration, individual opinion, or separate opinion, and whether authored individually or jointly. For ease of exposition, we will use the term -dissent‖ as a shorthand for separate or minority opinions, while specifying, throughout the paper, when we are referring to separate concurring, dissenting, or other types of minority opinions.Court of Justice's authority. 3 Other scholars foreground dissents to gauge whether certain human rights courts are -backsliding,‖ to evaluate the legacy of prominent jurists, to consider gender and other forms of judicial diversity, and as the most visible example of a larger category of judicial speech acts. 4 This rapidly expanding literature usefully highlights the centrality and importance of dissent at many international courts. Yet this research tends to analyze dissents by a single jurist, at a specific court, or within a particular international legal regime. The lack of comparative analysis leaves us with, at best, a partial understanding of why judges at some international tribunals routinely issue judgments accompanied by forceful dissents while at other courts jurists refrain from issuing minority opinions, or the effects of these diverse practices.Moreover, there is a curious gap in recent writings on dissent. These studies generally sidestep three central questions raised by minority opinions, namely their impact upon a court's legitimacy, judicial independence, and the development of legal doctrine. 5 This omission is even more striking because debates over dissent at international courts have a lengthy history -and this history focuses precisely upon the consequences of different dissent practices for judicial legitimacy, independence, and legal doctrine.We seek to fill this gap by providing the first comparative study of dissent at international tribunals. Our goals are several. In excavating a rich history of contestation over dissent, we seek to recover a forgotten discourse and illuminate the central claims advanced in earlier debates. Our more important goal, however, is forward looking: we seek to advance these debates by examining anew the impact of separate opinions. To do so, we employ multiple methods, including analysis of debates 3

Collective Choice and Dissenting Opinions in Multimember Courts - Elements for Assessing Judicial Reasoning in Courts of Constitutional Decision Making in South America

“…96 Garoupa and Santos (2022, p. 5. On the other hand, Dunoff and Pollack (2022), p. 340. Found that "the presence of dissents has little systematic impact on legitimacy" of courts.…”