The Holistic Theory of Precedent

Abstract

Standard theories of precedent limit the legal effect of a precedent to cases that fall within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases that fall outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: it also requires the judge, for purposes of deciding the case, to update her other beliefs around the assumption that the precedent’s holding is true. The Article employs the framework of Bayesian epistemology to develop this idea and demonstrate its fit with judicial practice. Recognizing the full breadth of precedent’s legal effect has significant scholarly and doctrinal payouts related to, inter alia, the workings of the Marks rule, the soundness of the Erie doctrine, the degree of indeterminacy in how far precedents extend, the extent to which it is legally proper for a judge to consult her priors when deciding whether to distinguish a precedent, and the way to solve the “problem of the second best” as applied to precedent.

Keywords: precedent, holism, Bayesian epistemology, analogy, stare decisis, positivism