Precedents

"PRECEDENT, n. In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament."

"The right hon. Gentleman tells us to go back to precedents; with him a great measure is always founded on a small precedent. He traces the steam-engine always back to the tea-kettle. His precedents are generally tea-kettle precedents."

"I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. … That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society."

"What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly sacrificed. Above all is this true when honest men have shaped their conduct on the faith of the pronouncement."

"The repetition of a catchword can hold analysis in fetters for fifty years or more."

"If Napoleon had nuclear subs, we'd all be speaking French. So, the history thing can be oversold."

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

"What is today supported by precedents will hereafter become a precedent."

"Ages, precedents, have long been accumulating undirected materials, America brings builders, and brings its own styles. The immortal poets of Asia and Europe have done their work and pass'd to other spheres, A work remains, the work of surpassing all they have done."

"The most obvious example of the way law constructs and uses history is found in the doctrine of stare decisis and the practice of justifying present decisions in light of precedent. In the common-law tradition the past is supposed to govern the present. Like cases are to be treated alike. Precedent tells a judge to adhere to the decision in a previous “similar” case. As Shauer notes, an argument “from precedent . . . urges that a decision makers give weight to a particular result regardless of whether that decision maker believes it to be correct and regardless of whether that decision maker believes it valuable in any way to rely on that previous result.” In this understanding, adherence to precedent is a rule, according judges no judgmental discretion. There is, of course, another way of understanding how precedent works that accords judges greater interpretive possibility. Past decisions creates a presumption, but a presumption that can be, and sometimes is, rebutted. Yet both of these conceptions treat the past as discoverable and potentially constraining or authoritative. The judge researching precedent constructs a doctrinal history in the service of elucidating a present problem. These two different ways of thinking about precedent imply two different attitudes toward the past, as commander of the present and barrier to change, or as guide, suggesting paths, but mandating no particular way of being in the present. And beyond these different attitudes toward the past there are the difficulties of determining what counts as an applicable precedent as well as what a precedent stands for in the way of its legal meaning. Neither is self-generating. Analogies proliferate almost without limit. Judges read the relevance of past cases differently, and there are no metarules that govern such determinations of relevance. This is not to say that the search for relevance is a free-for-all. Conventions, habits, institutions, reasons all guide the judgment of what is relevant. Yet judges with different conceptions of their role adopt different standards of relevance as well as entirely different orientations toward the way the past should be used in law."

"Even when judges agree on the relevance of a past case to a present one, they may, and frequently do, disagree about how the applicable precedent should be read. Thus judges construct law’s own history in the process of deciding present cases. They do so through a complex genealogical operation that accords them enormous discretion, and yet allows them to claim that they are fully and completely bound by the past. In law “the past is primarily a source of authority”-if we interpret it correctly, it will tell us how to conduct ourselves now. History is not only a source of authority but of legitimacy.” Reading and decoding the past, arguing about its meaning, and shaping decisions as if they were the inexorable product of an uncontested history is the very stuff of law. Judges make history anew with each opinion, all the while proclaiming that they are simply discovering a past whose significance is, or should be, self-evident."

"Indeed the authority of legitimacy of a judicial decision is to some extent a product of its ability to cloth itself in the history of law, to plausibly claim that there is nothing innovative or new being done or said even while new departures are being undertaken. Alternatively, when judges make a radical departure from the past, the gravitational force of law’s history “compels” them to find a loophole, a gap in the seamless web of history, or to say that there are no applicable precedents, or that the applicable precedents are somehow less relevant than they might otherwise seem. In this sense law is always facing backward, engaged with the past, constructing majestic narratives of continuity with occasional flaws in the tapestry."

"Let us note but two examples of the use of precedent in the construction of a historical narrative that, in turn, works to supply authority and legitimacy. The first is found in “Planned Parenthood v. Casey”, the 1992 Supreme Court decision upholding, while limiting, abortion rights under the Amendment. In the now famous opinion by Justice O’Connor, Kennedy and Souter, those justices took pains to explain their own reservations about “Roe v. Wade”, whose “essential holding” their opinion in Casey was intended to reaffirm. “Some of us,” the justices noted, “find abortion offensive to our most basic principles of morality, but that cannot control our decision.” It could not do so if they were to uphold their duty to protect the “liberty of all” and to respect their obligation to “follow precedent.” This obligation flows from “the very concept of the rule of law,” which, in their view, “requires such continuity over time that a respect for precedent is, by definition, indispensable.” Yet in spite of this rather striking defense of the role of precedent in our legal system, O’Connor, Kennedy, and Souter went on, almost as if to take back what they had just said, to note that adherence to precedent was not “an inexorable command.” The decision whether to adhere to precedent was, in their view, always one that had to be guided by “prudential and pragmatic considerations,” including whether the rule developed by a prior case has proven to be unworkable, whether people have come justifiably to rely on it, and whether subsequently developed principles of law have rendered the prior rule a nullity. By taking this pragmatic and prudential approach to precedent the three justices constructed an historical narrative that made room for the possibility of change, of evolution. They wrote a history of constraint, yet also of possibility, rather than of an iron hand of the past inexorably determining present policy. They allowed themselves to be seen as “judging” a past that they themselves first had to interpret. Yet they acknowledged that the past created a presumption in favor of continuity and that in no case should a decision to overrule precedent, and in so doing to rewrite history, rest simply on a “belief that a prior case was wrongly decided."

"“[T]he “Casey” majority presented perhaps the Court’s most extended discussion of the concept of precedent in this century” (81)"

"As Morton Horwitz put it, “Casey was “unique in American constitutional history for its highly self-conscious discussion of the question of constitutional legitimacy” and for constructing a historical narrative to “provide a standard for determining when overruling precedent is appropriate.”"

"At each turning point, the justices argued, the Court had to resolve an “intensely divisive controversy” in such a way as to call “the contending sides of a national controversy to end their national division.” Again constructing a monumental history, the justices announced “The court is not asked to do this very often.” In these rare moments the Court has to stand firm; it has to defend a previously made “water shed decision” lest the Court’s own legitimacy be jeopardized. Here the Court writes a history that goes beyond a history of legal doctrine; it is a history that takes into account the social and political world in which it is portrayed as playing a decisive role. Adhering to precedent in such circumstances gives testimony to the power of principles to guide the nation. By imagining the possibility of departing from precedent, by treating precedent as a standard, not a rule, the justices are able rhetorically both to elevate the stakes in its present decision and marshal a narrative of the past to serve as a springboard for an explanation of why it is both wise and prudent to adhere to a decision about whose substantive judgment they had earlier expressed doubt. In the history that “Casey” tells, the Court faced a severe challenge; adhering to precedent presented the best, though not only, answer."

"Yet there is another image of precedent, of law’s history, in which the force of precedent compels judgment, in which precedent is treated as a rule for foreclosing the possibility of any other legitimate considerations. This image is perhaps best exemplified in Justice Marshall’s dissent in Payne v. Tennessee. In Payne the Supreme Court overruled its earlier decision in Botth v. Maryland in order to hold that the use of so-called victim impact statements in the sentencing phase of capital trials was not a violation of the eighth Amendment. The majority opinion written by Justice Rehnquist explained its overruling of Booth by invoking attitude toward precedent that would later emerge in Casey to justify adhering to precedent. As Rehnquist put it, “Adherence to precedent is ‘usually the wise policy.’” It is not, Rehnquist warned, a “mechanical formula” of adherence to the latest decision no matter how misguided. Marshall responded by conjuring a different relationship of law’s present to its past. He called for “fidelity” to precedent and claimed such fidelity was essential if courts were not to subject the people to the rule of “an arbitrary discretion.” In his view the Court has “a duty to stand by its own precedents.” Discharging that duty, against the ties of changing personnel on the Court or a changing political climate in the country, was Marshall claimed, necessary to a judiciary that sought to be a “source of impersonal and reasoned judgments.” The history that Marshall constructed is a history in which the past should rule the present, in which authority could and should be excavated from a continuous process of reading and rereading of the judiciary’s own products. It is a history of “fidelity,” of “duty” in the face of temptation. Failing to follow precedent would mean that “power, not reason,” would be the currency of judicial decision making."

"These two different attitudes toward precedent reveal an important part of the terrain of inquiry into law’s use and construction of history. They remind us of the complex and contingent interpretive possibilities of a legal order dedicated to a faithful respect for its past. Reasoning by analogy, distinguishing cases, identifying rules and their exceptions provide, in one sense, the very substance of legal reasoning. But in another they provide the resources with which law can live within the prison of history and yet escape it as needed. They provide but one indication of the fact that law’s history is almost always the subject of contest and interpretive dispute, that its' is a purposive and politicized attitude toward history. They also suggest that the interpretive touchstone for such contestation in the question of legitimacy."

"Judicial decisions on prisoners’ rights construct their own history, “founded on precedent, repeated, and gaining in force with each repetition.” Precedent, she argues, operates like ritual in that it gains authority the more it is tried and used. The law, in the histories it constructs and the memories cited there, “is a tomb of dead ideas.”"

"Concern for the memory of slavery and its place in law also animates the next essay, by Brook Thomas. His concern, however, is less with memory than with the way law both lives in, and finds resources to escape, the precedential world it creates. Thomas wants to illuminate what might be called the indeterminacy of historical argument in legal decision making as well as the way judges can both appeal to history and yet evade the history to which they appeal. He argues that, at least in the context of decisions on racial discrimination, judges deploy metaphors to produce novel interpretations of legal doctrine while continuing to honor the doctrinal history that they are changing. “Metaphor . . . allows for innovative interpretations that paradoxically claim to stay true to the meaning of the text at hand.”"

"Thomas notes that the Supreme Court in Brown did not directly confront either Taney’s metaphor or the precedent of “Plessy”. Instead it spoke of racial segregation as having “generated” a sense of inferiority among black schoolchildren. The metaphor of generation allowed the Court to avoid ruling on the motive behind Jim Crow laws, just as it avoided ruling on the original intention of the Fourteenth Amendment. Thomas claims that the genius of “Brown” was that it used metaphor to adhere to precedent while, at the same time, altering the course of history. Opposing a static view of history, the “Brown” Court treated temporality as a component of reality. If reality changes, a truly historical approach requires that law update itself as well."

"While metaphor provides a space for innovation, the last essay-by G. Edward White-shows how reasoning by analogy is used to stitch together the threads of precedent that comprise law’s own history. Analogical reasoning, White argue, “is in fact the standard technique of reasoning in the Anglo-American legal system. It consists of establishing previously decided cases as ‘authoritative’ because they embody certain rules that the system has internalized.” It allows judges to construct a history of doctrine with little overt reference to the world outside law and, as a result, provides a crucial component of the argument that legal decision making is autonomous. And, White notes, while analogical reasoning may seem to the nonlawyer to impose few constraints on judges, in practice the legal system places a “high value on following precedent and thus treats most previous decisions whose rules appear arguably apposite as being so. When lawyers and judges seek to be creative, the vehicle for their creativity is the marshaling of rich and persuasive analogies yet since those analogies “invariably summon up existing cases, rules, and principles, the discourse of American law is inherently time-bound and conservative.”"

"White examines the hold of analogical reasoning on the legal imagination by assessing the way courts responded to innovations in the social world. The two examples that are the subject of this essay are the treatment of radio and motion pictures in the early part of the twentieth century. He looks at how law responded to these innovations and, in particular, how courts responded to challenges to efforts to impose a regulatory regime on them. The drive to regulate emerged from a particular awareness of the media’s mass quality and the immediacy of the effects the created; in addition, it was fueled by the Progressive Era’s tendency to approve regulation by experts as a way of addressing social concerns. Yet these regulations, at least from the perspective of today, raise serious First Amendment issues. White examines cases challenging regulation to sow that analogical reasoning was used to construct a legal history in such a way as to justify regulation in spite of the First Amendment. In the case of film, courts constructed such a history by categorizing it as a form of property. Like property, film might be used to do “evil.” Courts then conjured the history of the “police powers” by which states could invoke their powers to protect the morals of the public. In addition, they brought the regulation of film within the history of administrative law and, as a result, focused only on the nature of the legislative delegation involved. Having established framework of analogies, courts then were able to bring to bear the relevant precedents. In their treatment of those cases they tended to anticipate the position of Marshall in “Payne”, insisting on the value of consistency and continuity of law’s doctrinal structure."

"White finds “striking parallels” as he explores the way law’s history was brought to bear on the question of the regulation of radio. Faced with an evolving and developing First Amendment jurisprudence, courts nonetheless had little trouble, White argues, upholding the Radio Act of 1927, through which the Congress asserted government ownership of the airwaves. They focused on radio’s potential to reach vast audiences as well as the scarcity of radio frequencies. They drew an analogy to film and claimed that, like the former, radio was intrusive and pervasive in its reach. Yet today, somewhat paradoxically, the latter is subject to a far more restrictive regulatory regime than the former, though today new analogies and new precedent prevail. Film and radio are now regarded not simply as property; the new analogical structure provides greater First Amendment protection by treating them as like the print media."

"In the end, White claims that analogical reasoning in itself, though powerful in explaining the way innovations are accommodated in the construction of a doctrinal history, is insufficient to explain this process. He suggests that we can understanding the way innovations are accommodated in the construction of a doctrinal history, is insufficient to explain this process. He suggests that we can understand how law’s history gets created by focusing on both the concerns that are vital in the larger culture in which decisions are being made, and the available analogies through which legal discourse can respond to those concerns. Precedent constrains yet leaves room for adaptation. The internal history that law constructs to legitimate itself is not, and cannot be, completely insulated from the external history that gives rise to problems, cases, and calls for legal resolution"

"It is of dangerous consequence for Judges, in their judgments, to rely too much on precedents that perhaps went forth through the necessity of the present times."

"I cannot bear to be told when an argument has been addressed to me by which I am not convinced, that there is a case decided which I am bound to follow."

"My duty is, as a Judge, to be governed by fixed rules and former precedents."

"He who will have advantage of precedents, ought to search for them at his peril, and for his speed, for, the Court will not search for them; for if none, or no usual precedents are shewn, the Court ought to adjudge according to law and reason."

"If any precedent should be found, you should have time to make use of it."

"It is dangerous to make a precedent, an innovation."

"It is hard, I confess, and so are many other things in the law; but I am wonderfully tender of making precedents."

"A course of precedents and judicial proceedings in Courts of justice make the law: it would be endless to cite cases upon it. A course of practice for a few years has been held to controul an Act of Parliament."

"We must, as in all cases of tradition, trace backwards, and presume, from the usage which is remembered, that the precedent usage was the same."

"From authorities I come to precedents; though they be not judgments, yet they show the practice of the law: and what better book have we in the law than the book of precedents, or what is there of more authority than that, for we have not the twelve tables for our common laws? The common law is but the common usage of the land."

"Recognised precedents have the force of decisions, by which Courts and Judges individually must hold themselves bound."

"The precedents are all against you, every one of them, and what shall guide our judgments, since there is nothing alleged in this case but precedents?"

"Matters depending in our Courts are composed of an infinite number of special circumstances, and it therefore is as rare to find a precise correspondence between the facts of one case and those of another, as an exact resemblance in the face of one man to that of another. Therefore it is the wisdom of the sages of our law, by the analogy with other cases, to investigate their doubts, and thus to satisfy their judgments."

"I hope we shall resolve according to the reason of former times, and according to our consciences."

"What is determined upon solemn argument establishes the law, and makes a precedent for future cases : which is not the case of questions agreed by consent of parties, or never litigated."

"I have often thought since that there is sound sense in what was once said by the late Lord C. J. Eyre, that the sooner a bad precedent was gotten rid of, the better."

"I lay great stress upon the two precedents of near a century and a half ago, and no instance in contradiction of them."

"I think what has been considered as settled law for thirty years past ought not now to be departed from."

"Precedent indeed may serve to fix principles, which for certainty's sake are not suffered to be shaken, whatever might be the weight of the principle, independent of precedent. But precedent, though it be evidence of law, is not law in itself; much less the whole of the law."

"Precedent goes in support of justice."

"I should be sorry that any opinion of mine should shake the authority of an established precedent; since it is better for the subject that even faulty precedents should not be shaken than that the law should be uncertain."

"Seldom will it happen that any one rule will exactly suit with many cases."