The Role of Dissents in the Formation of Precedent

Abstract

I argue that dissenting opinions play an important role in the formation of precedent in the context of plurality decisions. Courts typically treat plurality cases as precedential. However, procedures for interpreting and following plurality decisions vary considerably across courts and judges, producing major inconsistencies in the adjudication of cases that are ostensibly governed by the same law. I suggest that, when a majority of judges agrees on legal principle, that principle should have binding effect, even if the judges in principled agreement are divided on the judgment. I explain why some courts and most commentators have categorically excluded dissents from the holding category, and why that move is mistaken. First of all, an analysis of the holding/dicta distinction shows that, in some cases, dissenting views belong on the holding side. Second, if we think that principled decisionmaking is fundamental to the authority and legitimacy of the common law, then 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.

Keywords: Plurality Decisions, Courts, Judging, Procedure, Criminal Justice, Judicial Opinions, Precedent, Case Law, Dissents

JEL Classification: K00, K10, K15, K40, K41