WIll Bardwell raises a great point on the Wright v. Royal Carpet decision that I wrote about earlier today:

Ultimately, though, it may be much ado about nothing, because technically speaking, I’m not sure that the decision creates binding precedent. The Court’s opinion drew only five votes — not a majority of the Court — and one of its members, Judge Irving, joined in result only. Judge Maxwell’s separate opinion, on the other hand, pulled a total of five full votes (why that doesn’t make it the “majority” opinion, I don’t know). Suffice it to say, though, that a majority of Court’s members declined to concur in the lead opinion’s reasoning.

I didn’t notice the vote counting issue when I read the opinion. The concurrence, which I mistakenly refer to as the dissent in my post, had five votes. The majority opinion included Judge Irving who concurred in result only. But the concurring judges also concurred in the result. It’s how they got there that’s in dispute.

And it looks like the concurring opinion is really the majority. I’m missing something on the vote counting at the Court of Appeals.