Precedent and Fairness
22 Pages Posted: 18 Oct 2021
Date Written: October 14, 2021
Courts in common law systems decide cases as they decided similar cases in the past - even if they believe they decided those past cases wrongly. What, if anything, justifies this practice? I defend two main claims. The first is that fairness favors treating like cases alike if that means treating them correctly. The second is that a court is about as likely to decide an instant case correctly as it was to decide an earlier case correctly. Together, these claims tell us that departing from and following precedent are equally likely to yield a correct decision, whereas following precedent may also yield a fair decision. Following precedent is the dominant option. Fairness therefore provides a reason for the practice of precedent. While that conclusion is not original, my path to that conclusion is, as far as I know, novel.
Keywords: precedent, fairness, legal reasoning, overruling, distinguishing
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