Dubitante

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Dubitante (Latin: "doubting") is used in law reports of a judge who is doubtful about a legal proposition but hesitates to declare it wrong. E.g., "Justice X acquiesces in the Court's opinion and judgment dubitante on the question of Constitutional preemption."

Some judges use this term after their names in separate opinions, as if analogous to concurring or dissenting. Doing so may signal that the judge has doubts about the soundness of the majority opinion, but not so grave as to cause him to dissent.[1]

Examples[edit]

Majors v. Abell, 361 F.3d 349, 358 (7th Cir. 2004) (Easterbrook, J., dubitante).

In Majors, Judge Easterbrook wrote a dubitante opinion, arguing that Judge Posner's opinion ignored 4 controlling cases from the Supreme court protecting anonymous speech. Judge Easterbrook is one of only 4 to 6 judges who occasionally use this format.

Harvard Professor Richard Fallon believes judicial activism in areas of abortion rights could be seen as dubitante. [2]

In Loughrin v. United States (573 U. S. ____ (2014)), United States Supreme Court Justice Antonin Scalia wrote in his concurring opinion that "... But I am dubitante on the point that one obtains bank property 'by means of' a fraudulent statement ..." [3]

References[edit]