Lower courts supposedly follow Supreme Court precedent — but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent court-of-appeals decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice — which I call “narrowing from below” — challenges the authority of higher courts and can generate legal disuniformity. But it is also beneficial. Narrowing from below allows lower courts to update obsolete precedents, mitigate the harmful consequences of the Court’s errors, and enhance the transparency of their decision-making process. This Article contends that narrowing from below is generally legitimate when lower courts adopt reasonable readings of higher-court precedent, even though those readings are not the most persuasive ones available. This conclusion holds true — with some significant modifications — under multiple scholarly models of vertical stare decisis, including models that view higher-court rulings as legally authoritative, comparatively proficient, or usefully predictive. Understanding narrowing from below as a legitimate activity also points toward a new “signals” model of vertical stare decisis. Under this model, lower courts follow the Court’s relatively informal cues to resolve ambiguity in conventional precedent, including by narrowing from below.
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature...
How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms...
Berryessa et al. (2022) consider how prior experience as a criminal prosecutor may influence judicial behaviour, but their concerns about prior...
A federal grand jury in Florida indicted former President Donald Trump on June 8, 2023, on multiple criminal charges related to classified documents...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...
The lawyer-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how...
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to...
It is—and has long been—well known that the Executive’s power is expanding. To date, there are two dominant analyses of the Judiciary’s role in that...
Judicial reasoning and rhetoric should be mutually reinforcing, but they often end up at odds. Edwards v. Vannoy offers an unusually rich opportunity...
About twenty-five years ago, in the introduction to his book Self-Ownership, Freedom, and Equality, Jerry Cohen described encountering an unfamiliar...