Plurality Decisions and Stare Decisis: The Precedential Value of Dissenting Opinions
75 Pages Posted: 4 Jan 2018 Last revised: 11 Mar 2018
Date Written: February 28, 2018
This paper takes up the problem of the precedential effect of plurality decisions. Courts typically treat plurality cases as binding precedent. However, procedures for interpreting and following plurality decisions vary considerably across courts and judges, producing major inconsistencies in legal outcomes across cases that are ostensibly governed by the same law. The Supreme Court has touched on the problem of treating plurality decisions as precedential, but has failed to articulate a definitive solution. The Court recently granted certiorari in a case — Hughes v. United States — that turns on the interpretation of a plurality precedent. The stakes of the Court’s stance in Hughes are incredibly high. Outcomes of disputes in multiple and diverse areas of law will turn on the method for following plurality decisions that the Court adopts in Hughes. I argue for a dissent-friendly approach to precedent, where dissenting opinions create binding precedent in a subset of plurality cases. I explain why some courts, and the majority of commentators, have categorically excluded dissents from the holding category and why that move is mistaken. Principled decision-making is fundamental to the authority and legitimacy of the common law; it follows, I argue, that judicial agreement at the level of rationale or principle merits precedential status, even where those who agree on principle disagree on how a case should come out. The confusion surrounding plurality decisions and their precedential value has driven many commentators to disparage plurality decisions altogether. I argue that the attack on plurality decisions is unwarranted, and that discarding pluralities as precedent would be both illegitimate and inefficient. In Hughes v. United States, the Supreme Court has an opportunity to reaffirm and clarify both the authority of plurality decisions and the precedential value of principled agreement.
Keywords: Plurality Decisions, Marks Rule, Hughes v. United States, Courts, Judging, Procedure, Criminal Justice, Judicial Opinions, Precedent, Case Law, Dissents
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