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

ON THE PHILOSOPHY OF PRECEDENT, T. Bustamante, et al, eds., Forthcoming

San Diego Legal Studies Paper No. 11-070

13 Pages Posted: 9 Sep 2011

See all articles by Larry Alexander

Larry Alexander

University of San Diego School of Law

Date Written: September 8, 2011

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

Suggested Citation

Alexander, Lawrence, Precedential Constraint, its Scope and Strength: A Brief Survey of the Possibilities and Their Merits (September 8, 2011). ON THE PHILOSOPHY OF PRECEDENT, T. Bustamante, et al, eds., Forthcoming; San Diego Legal Studies Paper No. 11-070. Available at SSRN: https://ssrn.com/abstract=1924585

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
254
rank
118,041
Abstract Views
921
PlumX Metrics
!

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information