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ANU College of Law

Phillipa Weeks Staff Library

Level 1, 5 Fellows Road

Acton, ACT 2601

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Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta, and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. Case law thus continues to suffer from a fundamental conceptual shortcoming: the lack of a clear understanding about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis, and to what extent.

This article argues that the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P then Q). Future courts should not, however, be required to reconcile their decisions with other findings, conclusions, or reasons offered by the precedent-setting court. These other elements of a judicial opinion might be informative for future courts in a traditional common-law sense. But to view them as creating binding law via hierarchical stare decisis has the problematic effect of imposing prospective legal obligations that were not explicitly and consciously defined by the precedent-setting court.

This approach allows judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leaves the slate clean for future courts to confront unresolved questions in future cases with the full participation of future litigants. This article’s framework also helps to resolve a host of difficult puzzles relating to judicial decisionmaking, including the process of distinguishing and narrowing precedent, the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and others.

Adam Steinman
Professor of Law & Frank M. Johnson Faculty Scholar, University of Alabama School of Law.




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ANU College of Law

Phillipa Weeks Staff Library

Level 1, 5 Fellows Road

Acton, ACT 2601

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