The Doctrine of Precedent in the United States of America

23 Pages Posted: 4 Sep 2008 Last revised: 14 Sep 2008

Date Written: September 3, 2008

Abstract

American conceptions of precedent developed and are best understood in the context of the American common law tradition in which they have played a decisive role since the first English settlement of America in the early seventeenth century. Old common-law attitudes toward precedent are so deeply ingrained in the behavior of American lawyers and judges that they hardly rise to the conscious level. This can produce a certain confusion, when judges try to explain the principles behind their decisions, but there has been a remarkable consistency in practice, maintained by attitudes passed from generation to generation within the American legal profession.

Whether they are interpreting the common law, statutes or constitutions, American judges respect their own precedents as a "principle of policy" rather than as an "inexorable command." American judges find it easiest to overturn precedents when experience has proved them to be unworkable or a long line of subsequent cases has gradually undermined their foundations. They find it hardest to do so when property, contracts, or liberty is at stake. Reason is the ultimate measure of the law, but judicial departures from precedent require special justification to warrant the inevitable damage they cause to the settled expectations of a law-abiding society.

Keywords: common law, precedent, jurisprudence, legal history

JEL Classification: K10

Suggested Citation

Sellers, Mortimer Newlin Stead, The Doctrine of Precedent in the United States of America (September 3, 2008). Published in modified form in American Journal of Comparative Law, Vol. 54, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=1262933

Mortimer Newlin Stead Sellers (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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