On Vacation

Abstract

Using the lens of the precedential status of vacated opinions (that is, opinions supporting a judgment that has been vacated on any one of a variety of grounds), this Article explores the role of precedent at this point in the development of the American legal system. It identifies a deep disconnect in legal scholarship. One branch of the academy is embroiled in empirical debates about whether precedent (as opposed to preferences or institutional concerns) often makes a difference in judicial outcomes. Another branch debates normative questions such as whether foreign law is appropriately considered persuasive precedent in American courts, whether the holding/dictum distinction is evaporating, and whether not for publication opinions can be cited at all. Common to all of this scholarship is the underlying question of what constitutes law, and the extent to which a formalist answer to that question is possible.

The unpretentious vacated opinion provides an unlikely but surprisingly useful entry point into these questions. The growth in recent years of the vacated on other grounds citation indicates that vacated opinions are leading a remarkably robust life after vacation. One thrust of this piece is empirical - exploring the role vacated opinions play in current judicial decisionmaking. A second thrust is normative - exploring what, if any role, they (or, for that matter, opinions reversed on other grounds) should play. The Article concludes that, while vacated opinions should not constitute binding precedent even if they have been vacated on grounds that do not impugn their reasoning for the case at hand, such opinions are, and should be, persuasive authority. More importantly, this inquiry reveals that the notion of persuasive authority turns out to be more meaningful than may first appeal. When it comes to judicial precedents, persuasion, is a badly-chosen word to reflect the role such precedents actually play in our system. Norms of the judicial crafts require courts to take into account at least those non-binding precedents that rank high on commonly-accepted scales of persuasiveness, with the result that persuasive precedents (including vacated and reversed opinions) often look a lot like law.

Keywords: precedent, opinion, formalism, persuasive authority, vacated, vacatur, norms, unpublished opinions, foreign law, holding, dictum, Anastasoff, Hart, vertical precedent, horizontal precedent, stare decisis, judgment, panel, circuit court, path dependence, authority, deference