The Adjudicative Model of Precedent

• Published in: The University of Chicago law review 2020-09, Vol.87 (6), p.1551-1604
• Main Author: Tyler, Charles W.
• Format: Article
• Language: English
• Subjects: Analysis; Appellate courts; Case law; Common law; Cost benefit analysis; Courts; Federal court decisions; Federal government; Judicial power; Judicial process; Rule of law; State court decisions
• ISSN: 0041-9494; 1939-859X

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 the 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 over-reach, 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, decision-making processes, and the nature of its docket—which can amplify or diminish the adjudicative model's relative costs and benefits.