Precedent and Judicial Power after the Founding

Boston College Law Review, Vol. 42, pp 81-121, December 2000

Posted: 3 Sep 2001 Last revised: 9 Jan 2011

Polly J. Price

Emory University School of Law

Date Written: January 6, 2011

Abstract

A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit's non-citation rule violates Article III of the United States Constitution. This Article affirms the view that judicial power includes a doctrine of precedent, without relying solely upon an originalist interpretation of Article III. This approach identifies a consistent "core idea" of precedent that courts must consider how a similar case was decided in the past, even where there are varying ideas about the binding nature of that precedent. A long-standing tradition has viewed precedent as a necessary starting point for judicial decision. When a court departs from this core idea, it violates the essential function of the judiciary to treat like cases alike or explain the difference.

Suggested Citation

Price, Polly J., Precedent and Judicial Power after the Founding (January 6, 2011). Boston College Law Review, Vol. 42, pp 81-121, December 2000. Available at SSRN: https://ssrn.com/abstract=266411

Polly J. Price (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-7869 (Phone)

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