Fractured Courts and Stare Decisis: A Dissent-Friendly View of Precedent
58 Pages Posted: 4 Jan 2018
Date Written: December 28, 2017
In this paper I take up the problem of the precedential value of plurality opinions. Focusing on dual-majority cases—where one judicial majority agreed regarding legal test, theory, or principle and a different majority agreed regarding judgment—I argue for a dissent-friendly model of precedent. On my dissent-friendly approach, dissenting opinions constitute binding precedent in dual-majority cases. Many courts, including the U.S. Supreme Court on multiple occasions, have taken the dissent-friendly approach to following dual-majority decisions as precedent. However, these courts have not explained in satisfactory detail why they chose to count dissents in the precedent calculus rather than adopting an alternative method. Moreover, other courts, along with the majority of commentators, instead take it as self-evident that dissenting opinions cannot establish binding law. So not only are views on the matter divided, but productive dialogue between them has been limited. I begin this paper by defining plurality and dual-majority decisions, examining why and when we might expect a dual-majority case, and explaining why we should care about plurality decisions and their precedential value. I then defend the dissent-friendly method for following dual-majority decisions, while comparing that method to alternatives. I argue that the very reasons commentators have offered for excluding dissents actually push in the opposite direction. Moreover, the values underlying stare decisis would seem to push in favor of the inclusion of dissents, as would the values of principled and conceptually coherent decision-making. The dissent-friendly view I develop takes seriously principled alignment among judges in plurality decisions, whereas alternative views make nothing of it.
Keywords: Courts, Judging, Civil Procedure, Plurality Decisions, Legal Decisionmaking, Judicial Opinions, Precedent, Case Law, Dissents
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