93 Pages Posted: 10 Mar 2005
Statutes have long been regarded as quintessentially written law. In contrast, the other main source of law in a common-law system, judicial opinions or precedents, have traditionally been extolled as lex non scripta, or "unwritten law," even though cases have been reported in writing since the thirteenth century.
In fact, it is true that the common law was traditionally unwritten in an important way. For many hundreds of years, English judges expressed their opinions orally; those opinions were only later summarized in writing by a reporter, and sometimes not reported at all. Even today, precedential opinions may be delivered orally in England, and they are, moreover, often delivered seriatim. Because there may be no clearly authoritative text of a judicial opinion, the nature of English precedent remains relatively conceptual. In such a system, the ratio decidendi, or holding, of a case is something that must be deduced by reasoning rather than by close analysis of the text.
In the United States, on the other hand, precedent has become far more textual as a result of judicial innovations such as requiring judges to write their opinions, elimination of seriatim opinion delivery, the appointment of official reporters, and the increasing availability of verbatim copies of the judge's opinion. Additionally, appellate courts have started to express their holdings in formulaic or canonical fashion, which results in language that resembles the authoritative texts produced by legislatures. Lawyers and judges are consequently interpreting opinions in more textual ways.
A related development is the adoption by many state and federal courts of rules that designate only certain appellate opinions for publication, thus entailing that only those opinions are binding precedent. Opinions not designated for publication have been reduced to persuasive status or may not be cited at all.
Recently, there has been a counter-movement that aims to allow all cases to once again be cited as authority. If adopted, such a measure might return us to an earlier state of the common law, where all cases were precedents, but where the value of a precedent was variable, depending on factors such as the prestige of the judges, the strength of their reasoning, or the number of other cases reaching a similar result. The attraction of this proposal is its potential to detextualize precedent by affording judges greater flexibility to reinterpret earlier cases. In reality, however, changes in the profession (the vastly increasing numbers of lawyers and judges), as well as technological innovations (especially the development of large on-line databases of cases) make it likely that allowing all cases to function as precedents will only further textualize the common law.
The textualization of precedent has some real advantages in a large and relatively bureaucratic jurisdictions, particularly in promoting the rule of law. At the same time, it reduces the flexibility of courts that must apply the rules. In writing their opinions, judges should therefore carefully consider just how textual their holdings ought to be.
Suggested Citation: Suggested Citation
Tiersma, Peter, The Textualization of Precedent. Notre Dame Law Review, Vol. 82, p. 1187, 2007; Loyola-LA Legal Studies Paper No. 2007-28. Available at SSRN: https://ssrn.com/abstract=680901 or http://dx.doi.org/10.2139/ssrn.680901
By Orin Kerr