Majority Opinion - Style

Style

There is a key stylistic difference between the U.S. on the one hand, and the UK and other common law countries on the other. In the U.S., the disposition of an appeal in a majority opinion is usually drafted in the present tense, so that the disposition is itself a performative utterance. That is, a U.S. court will say that "we affirm (or reverse)" the lower court's decision, or, "the decision of the is hereby affirmed (or reversed)." By saying so, the court actually does so.

In the UK and many other common law countries, the disposition in a majority opinion is phrased in the future tense. For example, the Justices of the Supreme Court of the United Kingdom end a majority opinion by stating that "I would dismiss the appeal" or "I would allow the appeal," while the Justices of the High Court of Australia end a majority opinion by stating that "the appeal should be dismissed" or "the appeal should be allowed." This makes little sense from the American perspective, since the appeal has already occurred.

American dissenting and concurring opinions are sometimes partially drafted in the future tense, since they are speaking in terms of hypothetical situations that will not actually occur, as opposed to what the majority is actually doing in its opinion. However, even dissenting opinions may end in a present tense performative utterance, which is usually some variation on the phrase "I respectfully dissent."