Do Precedents Constrain Legal Decision-Making?

Abstract

Do Precedents Constrain Legal Decision-making?

Emily Sherwin, Cornell Law School

Forthcoming in Timothy Endicott, Hafsteinn Kristjansson & Sebastian Lewis, eds. Philosophical Foundations of Precedent (Oxford University Press 2022/2023)

Judicial decision-making is constrained by determinate, authoritative rules laid down in precedent cases. Other proposed forms of precedent-based decision-making, including analogical reasoning, reasoning from the facts and outcomes of prior cases, and reasoning from legal principles, do not effectively constrain current decision-making. Analogical intuitions, in particular, may aid in legal reasoning by suggesting useful comparisons, but they do not constrain legal reasoning. Thus, in the absence of a determinate rule, judges must rely on their own reasoning about what outcome is best, given the facts at issue and the practical and moral aims of legal decision-making.

Keywords: Precedent, Legal Reasoning, Judicial decision-making, authoritative rules, Analogical Intuitions