Concurring
Agreeing with the outcome of a court decision but for different or additional reasons than those stated in the majority opinion.
While straightforward in theory, many businesses fail to actively track obligations tied to this concept - often resulting in missed deadlines, unintended renewals, penalties, or loss of contractual rights.
US Law · For business owners and foundersWhat is a Concurring?
A concurring opinion is written by a judge who agrees with the result reached by the majority but disagrees with the reasoning, or who wishes to add additional reasoning. The concurring judge votes the same way as the majority but explains their vote differently.
Concurring opinions are not binding precedent - only the majority opinion creates binding law. However, when no majority agrees on a single rationale, the concurring opinion that represents the narrowest common ground may be treated as the controlling authority under the Marks doctrine.
For businesses involved in litigation, concurring opinions matter because they signal where the law may be heading. A concurrence that garners support from multiple justices can foreshadow a future majority shift, affecting how counsel advises on litigation risk.
In practice, many teams rely on a contract expiry tracking system to stay on top of dates and obligations tied to clauses like this.
Key Elements
Agreement on Result, Not Reasoning
The concurring judge reaches the same outcome as the majority (affirm, reverse, remand) but follows a different legal path to get there.Non-Binding Persuasive Authority
A concurrence has no binding effect on lower courts. It may be cited as persuasive authority but cannot be relied on as controlling precedent.Marks Doctrine
When a court issues a plurality decision with no single majority rationale, the Marks doctrine treats the concurring opinion that commands a majority for the narrowest grounds as the controlling holding.Signal of Legal Evolution
Concurrences often telegraph where the law is heading. Attorneys and businesses monitor concurring opinions in key cases to anticipate future legal changes affecting their contracts and operations.Real-World Example
The Supreme Court rules 5-4 that an arbitration clause in a consumer contract is enforceable. Three justices join the majority opinion. Two justices concur, agreeing the clause is enforceable but on narrower grounds that would not apply to employment contracts.
If your business uses the same clause in employment agreements, the concurrence is the critical opinion to analyze. Even though it is not binding, it signals that five justices would limit the ruling's scope in employment contexts - putting your employment arbitration clause at future risk.
This is why many businesses adopt automated deadline tracking to ensure no critical dates are missed before they pass.
Sample Clause Language
N/A - Concurring is a judicial concept, not a contract clauseWatch Out For
Mistaking a concurrence for controlling law
Citing a concurring opinion as binding precedent is a legal error. Only majority holdings bind lower courts. Always confirm whether the opinion you are relying on commanded a majority.Plurality decisions
When a court splits so that no single rationale gets a majority, you may have multiple concurrences and no clear majority opinion. These "plurality decisions" create significant legal uncertainty.Don't let concurring deadlines catch you off guard
Key dates tied to concurrings - renewal windows, expiry cutoffs, notice periods - can easily slip through the cracks when tracked manually. Missing them triggers automatic extensions, penalties, or lost rights. ExpiryEdge tracks every critical deadline and sends automated reminders before they're due - so nothing slips.
Instead of relying on spreadsheets or manual follow-ups, a centralized renewal reminder system ensures every deadline is visible, tracked, and actioned automatically.
How to Use This in Your Favor
Brief counsel on key concurrences before signing high-stakes contracts
When a contract clause's enforceability depends on recent case law, ask counsel to review not just the majority but also concurrences - they often signal how courts will rule in the next case.Related Terms
Frequently Asked Questions
Does a concurring opinion create binding law?
No. Only the majority opinion creates binding precedent. A concurrence is persuasive authority at best and is often used to argue for evolving legal standards.
What is the difference between a concurring and a dissenting opinion?
A concurring judge agrees with the outcome but differs on reasoning. A dissenting judge disagrees with both the outcome and the reasoning and would have ruled differently.