The Adjudicative Model of Precedent
Forthcoming, University of Chicago Law Review, Vol. 87
72 Pages Posted: 6 Feb 2019 Last revised: 15 Aug 2019
Date Written: August 8, 2019
This Article offers the first empirical and normative assessment of a particular model of precedent. On the conventional model, a judicial statement of law is a case’s holding only if it was necessary for the out-come of the case. Most courts, however, lack a fixed understanding of when a statement is “necessary” for the outcome. They thus apply the holding/dictum distinction inconsistently and unpredictably. Several state courts and one federal court of appeals employ a different model of precedent, which defines a holding as any ruling expressly resolving an issue that was part of a case at the time the court made its decision. Based on close readings of cases, anonymous interviews with sixteen federal circuit judges, and a quantitative analysis of an original data-set of federal appellate decisions, the Article finds that courts using the alternative model are more likely to follow their earlier statements of law in cases involving disputes about the holding/dictum distinction. It then argues that the alternative model has three primary normative implications — it promotes methodological consistency; stimulates the development of case law; and affects the relative influence of individual judges on a multi-member court. Finally, the Article defends the con-stitutionality of the alternative model against several objections grounded in Article III.
Keywords: stare decisis, precedent, courts, judicial power, article iii, interpretation, federal, constitution, cases
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