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Tuesday, February 04, 2014

The Scope of Precedent

I'm skeptical of the holding/dicta distinction. It's not that I view the distinction as untenable. As I see it, the problem goes a bit deeper. I think the holding/dicta distinction can overshadow more fundamental debates about why some judicial statements deserve deference while others don't. Those debates are bound up with underlying matters of interpretive methodology and constitutional theory. At least that's my claim in a draft article called The Scope of Precedent (available on SSRN).

My argument begins with the proposition that defining the scope of precedent is complex and value-laden. The scope of precedent depends on understandings about the proper roles of superior-court and inferior-court judges. It depends on the Constitution's description of the judicial department and the judicial power. And it depends on broader theories of legal interpretation. If you focus on the benefits of requiring future judges to pay close attention to the statements of their predecessors, you should tend toward a more capacious definition of precedent. If you're concerned about the extent to which judicial pronouncements threaten to displace statutory or constitutional text, you should tend toward a more restrictive definition of precedent. Likewise, if you adopt a particular reading of Article III, or if you endorse an interpretive methodology such as originalism or common-law constitutionalism, you'll create downstream effects for the way in which precedents should be defined.

The problem is that these deeper implications often (though not always) get overlooked or brushed aside in the caselaw. That leads to treatments of precedent that can appear conclusory and results-oriented. Criticisms like these are commonly directed at the U.S. Supreme Court, and they're completely understandable: Precedents are frequently defined broadly but sometimes defined narrowly, and there's no satisfying explanation for how to tell which is which.

The solution, I think, begins with greater analytical transparency in the definition of precedent. Calling something dicta, or dismissing it as merely "descriptive" and thus unworthy of deference, isn't enough. There needs to be a better explanation -- be it pragmatic, historical, or otherwise -- for why a particular type of statement isn't worthy of deference. Only upon making that transition can the caselaw move toward something like internal coherence in defining the scope of precedent.

Posted by Randy J. Kozel on February 4, 2014 at 09:57 AM | Permalink


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