Dubitante

Dubitante

Literal Meaning

Doubting the correctness of the decision.

Explanation & Origin

Latin, ablative singular masculine of dubitans, present participle of dubitare to doubt.

Dubitante (Latin: “doubting”) is used in law reports of a judge who is doubtful about a legal proposition but hesitates to declare it wrong.

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.

The legal philosopher Lon L. Fuller said that “the opinion entered dubitante [means that] the judge is unhappy about some aspect of the decision rendered, but cannot quite bring himself to record an open dissent.”

Another use of maxim is that doubt but lack of conviction that the majority is wrong.

Illustration

“Justice X acquiesces in the Court’s opinion and judgment dubitante on the question of Constitutional preemption.”

Case Reference

Feldman v. Allegheny Airlines, Inc. [ED. Ark. 2000]

Judge Friendly’s in the case stated that “Although intuition tells me that the Supreme Court of Connecticut would not sustain the award made here, I cannot prove it. I therefore go along with the majority, although with the gravest doubts.”

Majors v. Abell [361 F.3d 349]

In Majors, Judge Easterbrook wrote a dubitante opinion, arguing that Judge Posner’s opinion ignored four controlling cases from the Supreme court protecting anonymous speech.

He added: “Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law”

Loughrin v. United States  [134 S.Ct. 2384]

In this case the United States Supreme Court Justice Antonin Scalia wrote in his concurring opinion: “But I am dubitante on the point that one obtains bank property ‘by means of’ a fraudulent statement only if that statement is ‘the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control’ … What the proper solution may be should in my view be left for another day.”

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje

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