Precedent

36 Pages Posted: 16 Sep 2004  

Larry Alexander

University of San Diego School of Law

Emily L. Sherwin

Cornell University - Law School

Abstract

This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent.

The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.

Keywords: legal precedent, judicial reasoning, rule-based precedent, legal decision making

JEL Classification: K00, K10,

Suggested Citation

Alexander, Larry and Sherwin, Emily L., Precedent. U San Diego Legal Studies Research Paper No. 05-14. Available at SSRN: https://ssrn.com/abstract=591666 or http://dx.doi.org/10.2139/ssrn.591666

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Emily L. Sherwin

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Paper statistics

Downloads
744
Rank
26,142
Abstract Views
3,868