Reasoning and Precedents in Appellate Courts

6 Pages Posted: 17 Feb 2022 Last revised: 8 Apr 2022

See all articles by Saul Levmore

Saul Levmore

University of Chicago Law School

Date Written: February 1, 2022


Imagine that on an appellate panel facing two questions, Judge A thinks that a petitioner has standing in a case, but that this petitioner should lose on the merits because of the way a statute or precedent is understood. Judge B thinks there is no standing but argues that if there were standing, petitioner should prevail on the merits. Judge C thinks there is standing and also thinks petitioner should prevail on the merits. “Outcome voting” asks each appellate judge about affirming or reversing the lower court opinions on these matters. Here, A and B, if asked as individuals, think petitioner should lose – Judge B because of the standing problem and Judge A because of a judgment regarding the merits. Under “issue voting,” we would instead poll the panel issue by issue, asking first whether a majority thinks there is standing, and then inquiring how a majority – and it could well be a different majority – rules on the next issue, in this example, the merits of the case. In the example set out here, there would be a vote for standing (AC combined) and then a positive vote on the merits (BC), and petitioner would win because of these distinct 2-1 votes. But under the practice of outcome voting, which is the usual practice in American jurisdictions,1 AB combine to produce a loss for the plaintiff. Critically, the Marks Rule says that the holding, or precedential value, of a fractured court should be viewed as that position representing the narrowest grounds offered by the concurring judges (as to the outcome of the case).2 Here, the rule leaves C out of the group when it comes to writing the majority decision; it is against petitioner, because of A and B’s judgments (though they decide against petitioner on different grounds) and C dissented from that result, or outcome.

Suggested Citation

Levmore, Saul, Reasoning and Precedents in Appellate Courts (February 1, 2022). U of Chicago, Public Law Working Paper No. 789, Available at SSRN: or

Saul Levmore (Contact Author)

University of Chicago Law School ( email )

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