The Adjudicative Model of Precedent

87 University of Chicago Law Review 1551 (2020)

53 Pages Posted: 6 Feb 2019 Last revised: 31 Jan 2022

See all articles by Charles Tyler

Charles Tyler

George Washington University - Law School

Date Written: October 17, 2019

Abstract

In most courts, a statement in an opinion is a holding only if it was necessary for the outcome of the case. Several state courts and one federal court of appeals, however, have a much broader definition of a holding, which this Article calls the “adjudicative model.” The adjudicative model defines a holding as any ruling expressly resolving an issue that was part of a case.

This Article offers the first empirical and normative assessment of the adjudicative model. It describes an empirical case study of the Ninth Circuit and finds that, after adopting the adjudicative model, that court was more likely to follow its precedent in cases involving disputes about the holding/dictum distinction. To the extent this finding can be generalized to other courts using the adjudicative model, it promotes consistency in a court’s stated rules of law and hastens the development of case law. But the adjudicative model also creates an incentive for judges to overreach, perhaps reducing the overall quality of a court’s decisions and giving greater influence to its outliers. Because these values are in tension, a court’s definition of a holding should ultimately depend on its particular institutional features—such as its size, decisionmaking processes, and the nature of its docket—which can amplify or diminish the adjudicative model’s relative costs and benefits.

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

Suggested Citation

Tyler, Charles, The Adjudicative Model of Precedent (October 17, 2019). 87 University of Chicago Law Review 1551 (2020), Available at SSRN: https://ssrn.com/abstract=3323487 or http://dx.doi.org/10.2139/ssrn.3323487

Charles Tyler (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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