Crafting Precedent

Abstract

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on its own terms as a practice guide for working lawyers and judges. Our initial aim is to identify how the treatise can be useful to lawyers and judges by describing its scope and drawing out some of its more salient lessons. Accordingly, in Part I, we provide a roadmap of the types of problems that the treatise addresses and the principles that it identifies for resolving them. Following the treatise, our discussion explores what types of precedents bind which courts and how much weight they should be given.

In Part II, we home in on the distinct challenge of interpreting precedent. Although the treatise focuses on the reader’s task of interpreting an earlier decision, it also reveals how interpretation is really a “dialogue between courts.” That is, a future court ultimately decides what an earlier decision means, but the authoring court can facilitate that task by clarifying its decision’s reasoning and scope. We see this central insight as an opening to flip the treatise’s perspective and ask how the treatise’s insights on the interpretation of precedent can inform the writing of opinions that become precedents. Knowing the challenges future readers will face in reading and applying a case as precedent, what can the judge do at the front end of the process to craft more effective precedent? Part II is organized according to three key steps in the opinion-writing process: refining the question presented, identifying the governing law, and describing the material facts. At each step, we translate the guidance that the treatise provides for the interpretation process into lessons for authoring courts to consider at the drafting stage.

Keywords: precedent, judicial opinions, jurisprudence

JEL Classification: K40