The Scope of Precedent

Randy J. Kozel

Notre Dame Law School

January 23, 2014

Notre Dame Legal Studies Paper No. 1443

The scope of judicial precedent is capacious. The U.S. Supreme Court commonly defers to sweeping rationales and elaborate doctrinal frameworks articulated by its predecessors. The Court’s practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by — and, indeed, oftentimes subvert — the classic distinction between binding holdings and dispensable dicta.

This Article contends that the scope of precedent is derivative of recurring, foundational debates about the proper ends of judicial interpretation. A precedent’s forward-looking effect does not depend on the familiar categories of holdings and dicta. It arises from deeper normative commitments that define the nature of adjudication within U.S. legal culture.

The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common-law constitutionalism and beyond, carry distinctive implications for describing a precedent’s constraining effect. So, too, do various methods of interpretation in the statutory and common-law contexts. Ultimately, what determines the scope of precedent is the set of premises — regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy — that inform a judge’s methodological choices.

Number of Pages in PDF File: 55

Keywords: precedent, stare decisis, constitutional law, statutory interpretation, federal courts

JEL Classification: K10

working papers series

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Date posted: August 20, 2013 ; Last revised: January 24, 2014

Suggested Citation

Kozel, Randy J., The Scope of Precedent (January 23, 2014). Notre Dame Legal Studies Paper No. 1443. Available at SSRN: http://ssrn.com/abstract=2312581 or http://dx.doi.org/10.2139/ssrn.2312581

Contact Information

Randy J. Kozel (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
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