Quote:
Originally Posted by darryl
In common law jurisdictions a majority decision decides the case, and represents the law. All lower courts in that hierarchy are bound to follow the decision, and it is often given heavy weight outside that hierarchy, sometimes even in other countries. A minority judgement is worthless as a precedent, and does not represent the law. This is not to say that a dissent, particularly a well reasoned one, has no value. Nor does it imply that a judge who is part of a minority is worthless. Sometimes a well reasoned dissent will provoke much debate, and may be influential in the precedent being overturned, either by Parliament or legislation. But unless and until this happens, it is not the law. This is the same in both Australia and the US.
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However, the US isn't a common law country. There are some aspects of US law which are common law, but many aspects are not. While it is derived from English law, it branched off in a very different direction.
Citing dissents happens a fair amount in the US, especially as attitudes towards the original decision shift. An example is that when the DC Circuit court upheld the appointment of Mueller, they cited Scalia's dissent in Morrison v Olsen et al. (usually referenced simply as Morrison), a rather famous and influential dissent.
Appellate law in the US is generally focused on the technical aspects which were specifically listed in the appeal as opposed to the rightness or wrongness of the trial judge's decision. So saying that a decision was upheld as a way to validate that the decision was correct is misleading. That's simply not the way it works in the US. Appellate courts decide if a specific point of law was correctly applied, not if the case was correctly decided.
Most of the time, when a judgement is overturned, it is returned to the trial court to reconsider keeping in mind the appellate court's clarification of how the law should be applied. No idea how common law countries do appeals.