Precedential Constraint, its Scope and Strength: A Brief Survey of the Possibilities and Their Merits

Abstract

In this essay I examine how broadly precedents constrain (their scope) and how strongly they do so (their strength). With respect to scope, I look at three models of precedent and conclude that only one of these is both constraining and coherent. With respect to strength, I affiliate overruling precedents with the more general issue of legal transitions and conclude that no algorithm for when to overrule is available. Overruling precedents turns out to be only an instance of the more general problem of the rationality of rule following.

Keywords: precedent, rule model, result model, overruling

JEL Classification: K10