Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia

Andrew Lynch

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Judicial and Constitutional Studies Legal processes and jurisprudence Comparative constitutional jurisprudence studies

Abstract

This article examines the justifications which support the capacity of individual justices to voice their disagreement from a majority through the writing of dissenting opinions.In doing so, it employs extensive comparison with the practice of dissent in other jurisdictions, particularly that of the United States Supreme Court.The author contends that there are political, procedural and developmental benefits provided by the expression of disagreement amongst the bench.However, arguments for judicial restraint are also weighed, especially in respect of the practice of persistent dissent.The effectiveness of stare decisis as a check on disagreement -and the relationship between the two in general -is also considered.]

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2004A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001 2004Taking Delight in Being Contrary, Worried about Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?

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