The Power of Precedent


The role that precedent plays in constitutional decision-making is a perennially divisive subject among legal scholars and political scientists. The debate rages over both empirical and normative aspects of the issue: to what extent are the Supreme Court and other constitutional actorsconstrained by precedent? To what extent should they be? The disagreements extend even to the meaning of precedent itself: does precedent consist of merely a prior holding or ruling? Or does it include the reasoning underlying the judgment? Taking up a topic long overdue for comprehensive treatment,Gerhardt provides the first book-length analysis of precedent by a legal scholar in several decades. Gerhardt clearly outlines the major issues in the ongoing debates about the significance of precedence, and offers his own novel theory for understanding the institutional power of precedence as asource of constraint on the constitutional decision-making of the Court, the presidency, and the Congress.

Additional information

Publisher: Place of publication:
  • New York
Publication year:
  • 2008


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