An Epistemic Defense of Precedent

An Epistemic Defense of Precedent, in Precedent in the U.S. Supreme Court, Christopher J. Peters, editor, Springer, 2013.

14 Pages Posted: 17 Oct 2017  

Deborah Hellman

University of Virginia - School of Law

Date Written: 2013

Abstract

This chapter presents a normative justification of stare decisis, that is, of a court's presumptive deference to its own prior decisions. Critics often contend that valid epistemic reasons to follow precedent-reasons based on the notion that fol­lowing precedent will lead to better decisions-do not exist. The author argues, however, that a judge may have both "procedural" and "substantive" epistemic reasons to follow precedents with which she disagrees. Procedurally, a presumptive obligation to follow precedent can force a judge to confront opposing arguments and articulate strong reasons for disagreeing with them, thus improving her own decisionmaking. Substantively, the case-by-case process of generating precedent, involving the input of many judges over time, may generally be superior to ad hoc decisionmaking by a single judge or court. As a conceptual matter, the author argues, these epistemic reasons truly are reasons to follow precedent, because they might apply even when a judge believes a given precedent was decided incorrectly.

Suggested Citation

Hellman, Deborah, An Epistemic Defense of Precedent (2013). An Epistemic Defense of Precedent, in Precedent in the U.S. Supreme Court, Christopher J. Peters, editor, Springer, 2013. . Available at SSRN: https://ssrn.com/abstract=3053974 or http://dx.doi.org/10.2139/ssrn.3053974

Deborah Hellman (Contact Author)

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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