Subprecedents

38 Pages Posted: 22 May 2018  

Jason Mazzone

University of Illinois College of Law

Date Written: May 8, 2018

Abstract

Everyone had heard of super-precedents: cases that have very strong precedential value and so are thought immune to overruling. Subprecedents deserve equal attention. Subprecedents are those cases that, by design or effect, have only very weak precedential significance. In contrast to their more demanding super-precedent cousins, subprecedents do not claim to constrain future judicial decision-making and thus invite being ignored. Yet subprecedents play important, frequently unnoticed, and often surprising roles in a legal system that values stare decisis. This essay, prepared for a symposium on Randy Kozel’s book, Settled Versus Right: A Theory of Precedent (2017), presents the case for paying greater attention, as we seek to make sense of the rules and operations of stare decisis, to the nature and contributions of subprecedents. The essay identifies seven different kinds of subprecedents with different characteristics and functions and it explores the roles they each play in our legal system. Despite their seemingly modest nature, subprecedents, it turns out, shape opportunities to seek and obtain legal remedies, facilitate and constrain judicial decision-making, and, ultimately, guide the direction of the law. Subprecedents, in their own quiet way, play powerful roles. They need to be understood and reckoned with.

(Comments welcome on this draft.)

Keywords: stare decisis, Kozel, precedent, subprecedent, Casey, overruling, super-precedent

Suggested Citation

Mazzone, Jason, Subprecedents (May 8, 2018). University of Illinois College of Law Legal Studies Research Paper No. 18-18. Available at SSRN: https://ssrn.com/abstract=3175533 or http://dx.doi.org/10.2139/ssrn.3175533

Jason Mazzone (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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