Precedent as Permission
36 Pages Posted:
Date Written: March 16, 2020
This essay provides an account of precedent that does not call upon it to do the one thing that everyone expects: constrain judicial decision-making. Instead, precedent is tasked to do something else: identify lawful options. So instead of beginning with precedent’s limited ability to constrain, the argument focuses first on what precedent enables.
On reflection, precedent has always had two aspects: a permissive aspect that enables certain options and a prohibitory aspect that rules out others. When combined, precedent’s permissive and prohibitory aspects can render certain outcomes mandatory. But that arrangement is contingent, not essential, and precedent’s permissive aspect alone can do a great deal of work. First, precedent’s epistemic value allows it to operate as a shortcut, affording judges an efficient way to arrive at pretty good legal answers. Second, precedent’s rhetorical value allows it to operate as a shield, thereby helping judges resist political and other pressures to deviate from case law. When precedent operates in these ways, it fosters convergence across jurists as well as fidelity to past decisions—even if it imposes no constraint whatsoever.
The upshot is a new “permission model” of precedent, in contrast with the familiar “binding model,” which views precedent as constraining. The permission model challenges longstanding views of stare decisis. For example, stare decisis is often lambasted for being a malleable doctrine that overlaps with the merits. But the permission model would actually celebrate that state of affairs. Malleable, merits-sensitive stare decisis helps judges manage controversial legal transitions based on their understanding of underlying rights. And the binding model could simply be infeasible without enforcement. The permission model also points toward various reforms, such as ways of combining mandatory and permissive rules. These observations are especially applicable to the U.S. Supreme Court.
The permission model may not be the kind of precedent we were looking for, but it usefully informs the mode of precedent that we actually have.
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