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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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