When the dissent creates the law: Cross-cutting majorities and the prediction model of precedent

Abstract
Despite the increasing frequency of fragmented plurality decisions, courts and scholars have yet to agree on how properly to interpret these decisions' precedential effects. In some particularly frustrating cases, such as Rapanos v. United States, the usual tools of the Marks rule are unhelpful because the majority agreement, while easy to discern, is not between "those Members who concurred in the judgment." In those cases, which this Comment labels cross-cutting majorities, a majority of Supreme Court Justices clearly agrees that a particular legal rule exists, but that majority depends on the votes of Justices who actually dissented from the judgment. This Comment suggests a framework with which to analyze the precedential effect of these cross-cutting majority opinions. Part I defines the key terms of the debate. Part II discusses the traditional command model of precedent, in which lower courts are required to follow only unified majority rules that were necessary to the result of a particular judgment. This model strongly cautions against treating cross-cutting majorities as binding precedent. Part III focuses on a particular concern of the command model: cross-cutting majorities are mere dicta because they are not tethered to the majority judgment. Part IV examines an alternative conception of precedent and law, the prediction model, in which lower court judges ought to conform their decisions to expectations of how a higher court, if any, would rule on the issue. This Part argues that the prediction model, despite important limitations, offers a pragmatically powerful and theoretically legitimate means of addressing cross-cutting majorities. Part V turns to a discussion of meta-precedents: federal court decisions that, explicitly or implicitly, have confronted this issue. Part VI revisits the dicta problem and argues, based on the prediction model, that lower courts should treat cross-cutting majorities as maximally persuasive, albeit non-binding, authority.
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