The Scope of Precedent

52 Pages Posted: 20 Aug 2013 Last revised: 29 Oct 2014

Date Written: January 23, 2014


The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This 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 connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward-looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American 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 should determine 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 informs a judge’s methodological choices.

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

JEL Classification: K10

Suggested Citation

Kozel, Randy J., The Scope of Precedent (January 23, 2014). Michigan Law Review, Vol. 113, No. 2, 2014, Available at SSRN: or

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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