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14 Duke J. Const. L. & Pub. Pol'y 285 (2019)
The Role of Dissents in the Formation of Precedent

handle is hein.journals/dukpup14 and id is 286 raw text is: THE ROLE OF DISSENTS IN THE FORMATION OF PRECEDENT NINA VARSAVA* ABSTRACT 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. Copyright @ 2019 Nina Varsava. * For helpful comments on drafts of this paper and discussions of the ideas I develop here, I'm grateful to Bernadette Meyler, Amalia Kessler, Gideon Yaffe, Alvin Klevorick, John Morley, Debra Satz, Joshua Landy, Kate Redburn, Emma Stone, Ryan Williams, Judith Resnik, Ian Ayres, Roseanna Sommers, Abner Greene, and Dmitry Orlov. Thank you also to the faculty of Queen's University Faculty of Law in Kingston, Canada, as well as participants of the 2017 Yale Law Women Workshop and the 2018 Law, Culture, and Humanities Conference at the Georgetown University Law Center, where I presented earlier versions of the paper.

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