Article

The Adjudicative Model of Precedent

Charles W. Tyler

Visiting Professor of Law and Executive Director, Constitutional Law Center, Stan-ford Law School.

For excellent comments and suggestions, I thank Michael Abramowicz, Will Baude, Sam Bray, Aaron-Andrew Bruhl, Christian Burset, Jud Campbell, Ray Campbell, Nathan Chapman, Michael Dorf, David Freeman Engstrom, Nora Freeman Engstrom, Abbe Gluck, Jacob Goldin, John Harrison, David Hyman, Ben Johnson, Hajin Kim, Randy Kozel, Marin Levy, Daniel Markovits, Michael McConnell, Tracey Meares, Anne Joseph O’Connell, James Phillips, Zach Price, Jane Schacter, Geoff Sigalet, Shirin Sinnar, David Sklansky, Norm Spaulding, Mark Storslee, Diego Zambrano, and participants at the Civil Procedure Workshop and the Peking University School of Transnational Law Faculty Workshop. Ben Gibson, Emily Goldenberg, Benjamin Keener, Ariella Park, Austin Peters, and Victor Xu provided excellent research assistance. Finally, I am grateful to the federal judges who agreed to be interviewed for this project and to the indefatigable editorial team at The University of Chicago Law Review.

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 overreach, 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.

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