Phil 155 – Spring 06 The Doctrine of Precedent – Supplementary Notes
Anderson
[These notes are a synopsis of the article “Precedent”, by Larry Alexander, in A Companion to Philosophy of Law and Legal Theory, Dennis Patterson, ed.}
The doctrine of precedent, or stare decisis, is the idea that courts should follow earlier decisions on matters of law. Courts of inferior rank are bound by courts of superior rank and courts can also be bound by their own earlier precedents. Courts can sometimes justifiably depart from precedent, but precisely when that constitutes good legal decision-making and when not is part of the problem. Obviously a court cannot depart from precedent merely because it sincerely believes the precedent court erred or decided unjustly, for that would make the whole idea of following precedent a trivial exercise. The value of following precedents should be obvious: it is part of our idea of fairness or justice that similar cases ought to be decided in similar ways. In addition, precedent gives stability and predictability to the law. We rely on past legal precedents in planning a future course of action.
To see how the problem of understanding precedent arises in more detail, consider a case in which the key relevant facts are A, B, and C and the precedent court decided for the plaintiff. The court’s ruling is: In all cases with fact A, plaintiff shall prevail. Consider now a later case – the constrained case – in which the relevant facts are A and B, but not C. The constrained court thinks that because C was absent, the defendant should prevail. Does precedent require a decision for the plaintiff in the constrained case (because of fact A), or can the constrained court decide for the defendant (because of the absence of fact C)? There are two ways to go here. The constrained court might be expected to follow a narrow interpretation of the precedent court’s action, whereby the latter only decided the legal issue of what to do when facts A and C are both present, and in such cases, courts must decide for the plaintiff. In the case at hand, the constrained court would not then have to decide for plaintiff given the absence of fact C. Alternatively, the constrained court might be expected to follow a wide interpretation, whereby the precedent court settled what to do whenever fact A is present with or without C, namely, decide for the plaintiff. Which interpretation should be used?
Legal analysts differ widely on the best way to answer this question. I will only comment here on one possible response. This is the view that precedent courts must not just cite a set of relevant facts but also promulgate rules of law and it is the rules that do the constraining, not the facts alone. The rule in a given case may be expressed in the opinion of the precedent court or it may be unexpressed but inferable from the court’s decision and opinion. Thus, in the case described above, whether the constrained court should go with the narrow or the wide interpretation cannot be determined without knowing the precedent court’s reasons for claiming the plaintiff prevails in all cases with fact A.
Two possible objections to this rule model of precedent:
(a) It is not always clear from the court’s opinion what the rule is. Reply: True, but this doesn’t show the rule model of precedent is mistaken, only that courts don’t always do a good job of writing opinions.
(b) The theory implies that when a court sets a precedent by formulating a relevant rule, they are acting, in effect, as legislators. Reply: The point must be granted. When courts set precedents they are making new law, not merely applying existing laws.
The rule model of precedent escapes the criticism of the legal realists, a school of legal theory that argues precedents can never constrain. Since there are always factual differences between precedent cases and constrained ones, realists argue the constrained court that wishes to avoid the precedent can draw on some of those differences to show the precedent case does not apply to them. But with the rule model the only factual differences that would count are those that are relevant to the rule of law that the precedent court has identified as central to the case. Hence in many instances,the constrained court will be hard-pressed to find any significant and relevant factual difference within this narrow compass.
Coming back to our original question, when can a constrained court overrule a precedent court ruling? Two situations must be considered: (a) Cases of vertical constraint, where the constrained court has a status inferior to the precedent court within a particular hierarchy of courts. (b) Cases of horizontal constraint, where the precedent court is the same as the constrained court. In cases of vertical constraint, the constraint is usually regarded as absolute. Inferior courts cannot set aside the precedents of superior courts.
In cases of horizontal constraint, courts can sometimes overrule their own precedents. But their reasons for doing so must be sufficiently weighty. How weighty? There is no easy answer to that question.
For further reading consult: Ronald Dworkin’s work Taking Rights Seriously, especially Chapter Three, “Hard Cases”.