The Role of Dissents in the Formation of Precedent

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 disagree on result or case outcome. 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 holdings/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 case 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

A formal analysis of some factor- and precedent-based accounts of precedential constraint

In this paper several recent factor- and dimension-based models of precedential constraint are formally investigated and an alternative dimension-based model is proposed. Simple factor- and dimension-based syntactic criteria are identified for checking whether a decision in a new case is forced, in terms of the relevant differences between a precedent and a new case, and the difference between absence of factors and negated factors in factor-based models is investigated. Then Horty’s and Rigoni’s recent dimension-based models of precedential constraint are critically examined. An alternative to their reason models is proposed which is less expressive but arguably easier to apply in practice

Modelling and Explaining Legal Case-based Reasoners through Classifiers

This paper brings together factor-based models of case-based reasoning (CBR) and the logical specification of classifiers. Horty [8] has developed the factor-based models of precedent into a theory of precedential constraint. In this paper we combine binary-input classifier logic (BCL) to classifiers and their explanations given by Liu & Lorini [13,14] with Horty’s account of factor-based CBR, since both a classifier and CBR map sets of features to decisions or classifications. We reformulate case bases in the language of BCL, and give several representation results. Furthermore, we show how notions of CBR can be analyzed by notions of classifier explanation

Defining Dicta

The doctrine of stare decisis applies only to holdings of past cases, but scholars and courts have paid far more attention to stare decisis doctrine than to the distinction between holding and dicta, particularly in recent years. The lack of attention that the distinction receives may reflect a sense among legal analysts that they know dicta when they see it, but the problem is considerably more analytically complex than it may at first appear. In this Article, Professors Abramowicz and Stearns identify a number of structural problems that may affect whether statements in judicial opinions should be classified as holding or dicta. Drawing on a theoretical model that illustrates the role of the holding-dicta distinction in disciplining the application of stare decisis, they then develop four normative criteria and apply those criteria to each of the structural problems. After describing the weaknesses in various previous attempts to identify the holding-dicta line, the authors offer their own definitions. A holding consists of those propositions along the chosen decisional path or paths of reasoning that are actually decided, are based upon the facts of the case, and lead to the judgment. A proposition in a case that is not holding is dicta

How to Realize the Value of Stare Decisis: Options for following Precedent

When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through---{1) follow the precedent, (2) overrule, or (3) distinguish-without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach-one that is sensitive to the contextual factors that make one method preferable to another

Constitutionalism Outside the Courts

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and enforcement: protection of constitutional values through political processes and checks and balances; the role of social movements in shaping constitutional meaning; resolution of particular constitutional controversies in the political branches through processes of “constitutional construction”; and the role of “administrative constitutionalism.” The critique of judicial supremacy and the analysis of extrajudicial interpretation and enforcement have had a salutary impact in broadening the horizons of constitutional law. To the extent that theories of constitutionalism outside the courts are used to go further and attack judicial review, however, I find them less persuasive. One need not believe in judicial supremacy to value the courts’ ultimate settlement function in litigated constitutional controversies. If the Constitution is to continue to act as an external constraint on political action, then constitutionalism outside the courts can never be wholly autonomous of constitutionalism inside