Questionable Precedent

I’ve never understood the intended purpose of basing legal decisions on past precedent. If a ruling can be based in solid reasoning, precedent isn’t needed to support it. If the ruling cannot be based in solid reasoning, it is undesirable for it to be supported. I’ve sometimes been told that the goal is to maintain fairness by ensuring consistency – but repeating unjust actions for consistency’s sake is madness. How is making a mistake twice better than making it once?

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12 Responses to “Questionable Precedent”

  1. I think the three best arguments for it (although I share your skepticism) are:
    1. It builds confidence in rule of law encouraging intrastate activity. I’ll make contracts in a common law country because I have confidence my contracts won’t be completely overturned or unrenewable when the common law courts decide new rules for contracts are better than the old rules.
    2. Oakshottian conservatism (I think that’s what Andrew Sullivan calls it). A system has developed for generations and is functional. Thus one should be reluctant to overturn it because their may be currently nontransparent beneficial elements to that system (or that legal precedent).
    3. The longer courts have gone without overturning a legal precedent, the more unconfident a particular current court should be that it’s reasoning for overturning the law is sounder than the reasoning of the various previous courts that chose not to overturn the law.

    So I think the arguments for using legal precedent aren’t completely without merit, although it does seem like a number of the benefits can be captured without resorting to legal precedent. And I see little merit in an unexplained use of legal precedent for its own sake by a court.

    In general I think legal opinions should be written more like peer reviewed scholarly papers, in fields like experimental economics, and experimental sociology (macro, micro, and psycho). In essence judges are often practicing exactly that with their rulings.

  2. Nick Tarleton Says:

    If precedent weren’t respected, it’s not clear that there would be many more reversals for the better than for the worse.

  3. That’s entirely possible – but if so, then what’s the point of the principle in the first place? I’m willing to grant for the sake of argument that respecting precedent is harmless overall, but harmlessness is not a reason to implement a criterion. If the principle offers no advantages over its absense, why bother?

  4. Nick Tarleton Says:

    A mix of good and bad consistent principles is better than a mix of good and bad inconsistent decisions – the average decision quality is about the same, but the first case is much more predictable. I don’t know how much this argument corresponds to real life, though.

  5. michael vassar Says:

    Ditto Nick: Also, the existence of precedents makes it much easier for people to investigate the law and to act accordingly prior to taking actions that may or may not violate it.

  6. People don’t like surprise. I know I like to find my shoes where I put them.

  7. Douglas Knight Says:

    I don’t know if I really have anything to add, but my versions always seem clearer to me than the comments other people leave…:)

    1. Law needs to be a lot more complicated than legislatures can produce; precedents are courts making law.
    2. Having courts produce solid reasoning or good laws is not an option, but precedence is a pretty easy institution to implement.
    3. In an awful lot of environments, consistency of law is more important than quality of law.
    4. Posner claims that laws made by courts are better than laws made by legislatures and bureaucrats; you might imagine that courts produce better laws because judges see at least one consequence of their laws. Also, judges are more diffuse, so harder to lobby. I’m not sure if the French court system is really different from the common law court system, but I’m told that France produces more laws before cases get to the court.

  8. “So I think the arguments for using legal precedent aren’t completely without merit, although it does seem like a number of the benefits can be captured without resorting to legal precedent. And I see little merit in an unexplained use of legal precedent for its own sake by a court.

    In general I think legal opinions should be written more like peer reviewed scholarly papers, in fields like experimental economics, and experimental sociology (macro, micro, and psycho). In essence judges are often practicing exactly that with their rulings.”

    I’d like to see some discussion on my last two paragraphs. I’m surprised everybody here is stopping with (mostly the same) justifications of the status quo, rather than looking with me and The Blogger Formerly Known As Caledonian at the weaknesses of the way the precedent based common law legal system currently works, and thinking about how it can be improved.

  9. Douglas Knight Says:

    You’ve proposed an outcome, but you haven’t explained an institution that would produce that result. I think better knowledge of actual existing legal systems should come before brainstorming new ones. Unfortunately, I don’t know where to find accounts I’d trust.

    It seems very plausible to me that you can’t do better than using precedence to write low-level laws, given the poor quality high-level laws produced by the legislature. I think more input from economists would be good for lawmaking; having courts make economic arguments when they’re not invoking precedence sounds like a good idea, but I’m not sure it works out so well when Posner does it. Anyhow, this leads to the separate complaint of how to get to a new system.

  10. Douglas,
    I read what you’re saying as legislatures make worse laws than judicial precedence, therefore it’s impossible to improve on judicial precedence. I think the flaw in that reasoning seems pretty obvious. I think the reason you feel you can get away with it is because it’s status quo aligned.

    So what do I think would be an institution that produces a better result?
    I think some main flaws in judicial lawmaking are (1) putting empiricism first, (2) being transparent about the best available analysis of the consequences (including economic) of a judicial decision), and (3) acknowledging that each new judicial decision is an experiment, the data results of that experiment should be collected over time and used to inform future judicial decisions that would seek to cite that decision as judicial precedent for their decisions.

    I’ve run out of time, but I’d like to add that I think it makes sense for judges to be narrow experts on particular areas of law (the way we have specialization, rationally, in most other fields) rather than to write wide ranges of judicial opinions. Right now I think this is only true for a few limited areas of law, such as bankruptcy, and I’m not sure federal bankruptcy judges, for example, are selected from the leading experts on bankruptcy law.

  11. In my penultimate paragraph, I of course mean that (1) through (3) would be corrections to to some of the main flaws in current common law judicial lawmaking.

  12. Douglas Knight Says:

    These minor tweaks do sound good, especially the ones that are independent of precedence. Having judges specialize should improve the consistency of law. But I’m even nervous about the ones that slightly roll back precedence. Also, I think you make precedence out to be stronger than it really is. In the US, there’s a hierarchical system, with precedence only applying locally.

    I think that legislatures make bad laws and that if you gave judges more flexibility, they’d make bad laws, too, for largely the same reasons (although I gave a couple of reasons above why they might be a little better). If you have a cure for the bad legislatures, apply it to them first, before worrying about the judges. In particular, the current system lets legislatures can overturn precedent, so

    Another advantage of the precedence rule is the consensus that judges have no flexibility. This makes them less politicized than they might otherwise be. People think of economic reasoning as a blank check. I’m not sure whether legal training brainwashes the judges and lawmakers to think that the judges have little power.

    I’m not sure what you mean by “being transparent.” Actually getting judges to be transparent is the kind of thing I meant by an outcome, not an institution. If you just mean to make transparent some things that we do non-transparently now, like cost-benefit analysis, that could increase efficiency at only a one-time cost of convincing society it’s the right thing to do, but that’s a pretty high cost. In the current system, innovation is cheap, even if individual innovations aren’t as efficient as they could be.

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