Michael Allan Wolf (University of Florida Levin College of Law) has posted Cornerstones and Keystones: Confronting Stealth Attacks on the Regulatory State (University of Illinois Law Review, Volume 2026, pp. 947-1001) on SSRN. Here is the abstract:
This Article is the first to identify the Roberts Court’s pattern of stealth overruling of several takings precedents by neutralizing or ignoring essential language from prior decisions. The Article explores six examples of this phenomenon and proposes a framework for identifying when a subsequent Court’s critical assessment of key language from a prior decision, whether it technically qualifies as a “holding” or not, necessitates consideration of the stare decisis factors used in Dobbs v. Jackson Women’s Health Organization. Rather than focusing on the sometimes-arbitrary distinction between holding and dictum, the Article introduces two other indicia of precedential language that warrant a robust stare decisis consideration à la Dobbs. First, the targeted language may be a cornerstone, that is, the foundation for a significant body of subsequent state and federal case law. Second, the passage in question may constitute a keystone, that is, language that was critical to the formation of a majority opinion or without which the opinion no longer makes sense.
Litigators and their allies can mine several sources to identify cornerstones and keystones, allowing them to argue convincingly that the Court’s attempt to ignore or abandon precedential principles warrants a full stare decisis analysis: state and federal cases, public papers of Supreme Court Justices, oral arguments, and party and amicus briefs. Relying on dozens of takings cases and snippets from the public papers of Justices Blackmun, O’Connor, Powell, and Stevens (reproduced here), the Article demonstrates how the Roberts Court has already overruled by stealth six essential principles of takings jurisprudence.
While scholars, judges, and advocates have fixated on the Court’s head-on confrontation with Chevron deference in Loper Bright, the Roberts Court has been issuing perturbing decisions with even greater implications for the future of the regulatory state. Flying under the radar, the Court has followed a path that, if continued, could result in the gradual dismantling of police power and other regulations at all levels of government.
This is an important contribution to the literature on takings and the practice of stealth overruling, but I have reservations about one aspect of the framing. The Article characterizes the distinction between holding and dictum as “sometimes-arbitrary,” citing scholars who find the line elusive, contested, and malleable. That characterization conflates two different claims. The claim that the distinction is manipulated in practice is surely correct: courts sometimes characterize inconvenient rationales as dicta and convenient dicta as holdings.
But manipulation in practice does not entail arbitrariness in principle. On the best account, the holding of a case is its ratio decidendi — the legal rule or principle necessary to the resolution of the issues actually presented on the facts of the case. That distinction has penumbral cases, but so do almost all legal distinctions; vagueness at the margins is not arbitrariness at the core. Indeed, Wolf’s own “keystone” — language critical to the formation of a majority opinion or without which the opinion no longer makes sense — is best understood as a formulation of the ratio decidendi, and the Seminole Tribe passage he quotes (binding force attaches to “the well-established rationale upon which the Court based the results of its earlier decisions”) says as much. On this reading, the Article’s framework does not displace the holding-dictum distinction; it recovers it. For a basic introduction to the holding/dictum distinction, see Legal Theory Lexicon 005: Holdings.
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