About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

74 Fla. L. Rev. 1 (2022)

handle is hein.journals/uflr74 and id is 1 raw text is: PLURALITY DECISIONS AND THE AMBIGUITY OF
Ryan C. Williams*
The Supreme Court sometimes decides cases without reaching a
majority-supported agreement on a rule that explains the outcome.
Determining the precedential effect of such plurality decisions is a task
that has long confounded both the Supreme Court and the lower courts.
But while academic commenters have proposed a variety of frameworks
for addressing the problem of plurality precedent, little existing
commentary has focused on a deeper and more fundamental question
namely, what makes plurality precedent so confusing? Answering this
question is not only critical to developing a more coherent and
administrable doctrine of plurality precedent but is also a useful prism
through which to examine our shared understanding of precedential
authority more generally.
This Article argues that plurality decisions are so confusing because
they expose a latent ambiguity in our law of precedent. Looking to the
debates surrounding plurality precedent reveals at least three distinct
and to some extent, mutually inconsistent-models of precedential
authority. The first of these models, the judgment model, is closely
connected to the traditional common law view, which grounds the
precedential authority of judicial statements in the ability of those
statements to explain the particular judgment issued by the court in the
case before it. The second model, the prediction model, views the
holding of a case as the rule that best predicts the future behavior of the
court based on the expressed views of the participating judges. Finally,
the pronouncement model focuses on the judiciary's law declaration
function, viewing all majority-endorsed legal rules as entitled to
precedential force regardless of their connectedness to the court's
judgment or their capacity to predict the court's future behavior.
Exposing the ambiguities inherent in plurality precedent does not
provide a clear answer to how the conflict among the competing models
should be resolved. But doing so may help eliminate some of the
conceptual confusion that has grown up around plurality precedent. In
particular, focusing on the underlying theories of precedential authority
that drive the various approaches to plurality precedent suggests that
some of the most widely accepted approaches that have been embraced
by lower court judges may lack a coherent justification in any plausible
model of precedential authority. Recognizing the underlying ambiguity
* Assistant Professor, Boston College Law School. My thanks to Richard Re, Asher
Steinberg, Adam Steinman, and Nina Varsava for helpful feedback on earlier versions of this

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most