Broadening Precedent

52 Pages Posted: 6 Feb 2019 Last revised: 16 Feb 2019

Date Written: January 26, 2019


Stare decisis gives courts the power to establish law. The scope of that power—how much law a court may establish—is of immense practical and jurisprudential significance. In most disputes, it partly defines the content of the relevant law. And it affects the allocation of power among judges and between the branches. Despite its significance, federal stare decisis jurisprudence is remarkably unclear. The received wisdom says a case’s holding must relate to its judgment. But the federal courts lack a fixed understanding of what type of relationship is required. Repeated methodological disagreements both between and within the federal courts therefore persist. Scholars have bemoaned the resulting manipulability of precedent but have assumed it to be insoluble.

This Article introduces and assesses an alternative model of stare decisis (the “Case Model”), which has governed in several state courts for decades. The Case Model eschews a narrow focus on the judgment, defining a holding as any ruling resolving an issue germane to an earlier case in a well-reasoned opinion. The model thus expands the concept of a holding and a court's power to establish law. Should the federal courts consider adopting the Case Model? What it make them more likely to follow earlier cases? Would adopting the Case Model be constitutional? And what would it even mean for a court to change its stare decisis jurisprudence?

Unknown to most, the Ninth Circuit adopted the Case Model in 2005. That circuit’s experience over the last fourteen years thus provides an opportunity to examine these questions. Based on close doctrinal analysis, an examination of nearly 1,000 circuit decisions over a sixteen-year period, and interviews with sixteen Ninth Circuit judges, this Article draws four positive and normative conclusions. First, a court may adopt a new rule of stare decisis by repeatedly applying it over time, but not simply by announcing it in a single case. Using this criterion, the Case Model is now governing Ninth Circuit law. Second, the Case Model demarcates Article III’s outermost limit on a court’s authority to decide “Cases”—a limit that gives courts greater lawmaking authority than scholars have acknowledged. Third, the Case Model likely allows courts to make more consistent decisions across time, but it also creates opportunities for judicial overreach, potentially increasing the probability and severity of a court’s mistakes. Fourth, a court’s decision to adopt the Case Model should depend on its defining features, such its size, docket, membership, and likelihood of review by other government actors.

Keywords: stare decisis, precedent, courts, judicial power, article iii, interpretation, federal, constitution, cases

Suggested Citation

Tyler, Charles, Broadening Precedent (January 26, 2019). Available at SSRN: or

Charles Tyler (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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