Realism About Precedent
Forthcoming in T. Endicott, H. Kristjansson, & S. Lewis (eds.), Philosophical Foundations of Precedent (Oxford: Oxford University Press)
16 Pages Posted: 31 Jan 2022 Last revised: 2 Feb 2022
Date Written: January 29, 2022
In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court. Since cases are never identical in all particulars, this always requires figuring out which general categories that subsume the particulars of different cases are the relevant ones: I will call this “relevant similarity” in what follows. Relevant similarity is typically assessed in light of either the reasons the earlier court actually gave for the decision or the reasons that can be imputed to the earlier court based on the legal decision that court reached. Realists about precedent—from Karl Llewellyn to Julius Stone to this author—are skeptical that precedent really binds courts. Realists are skeptical not because they believe judges improperly disregard binding precedents; the worry, rather, is that judges can often properly distinguish precedents that might impede the decision they want to reach on moral or political grounds. They can do so precisely because judgments of “relevant similarity” that are central to distinguishing are largely unconstrained by law. First, such judgments depend on inchoate and sometimes unconscious norms that govern general classifications of particulars, about which reasonable people can and do differ, and about which the law is mostly silent. Second, given the range of permissible characterizations of the earlier court’s reasons in many instances, the requirement that the judgment of relevant similarity or difference be consistent with those reasons imposes only a limited constraint on the general classification employed.
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