Academic journal article The Review of Litigation

Posner on the Uses and Disadvantages of Precedents for Law

Academic journal article The Review of Litigation

Posner on the Uses and Disadvantages of Precedents for Law

Article excerpt


Richard Posner has long been considered controversial for his jurisprudential views. Most notably, his application of economic methods to legal issues has prompted both a firestorm of criticism and a general shift in much of the legal thought in the United States. Recently, however, Posner's focus on law and economics has shifted toward other jurisprudential issues. In 1998, Posner published his lecture The Problematics of Moral and Legal Theory,1 criticizing the influence of moral theory on law. This argument was met with scathing criticism from such prominent legal and moral theorists as Ronald Dworkin,2 Charles Fried,3 Anthony Kronman,4 John Noonan,5 and Martha Nussbaum.6 A year later, Posner published a book by the same name,7 containing a fuller statement of the lecture's theme.8

Also in the book, Posner addresses some of his critics, who claim that his adjudicative methods are not in fact pragmatic as he claims they are.9 Thus, Posner sets out to delineate what he means by "pragmatic adjudication," including the way pragmatic adjudicators regard legal authorities such as cases, statutes, administrative regulations, and constitutional provisions. Of particular interest are Posner's comments in The Problematics and elsewhere concerning precedents. While Posner's views about other legal sources have been discussed more thoroughly,10 little has been written about his regard for precedent. Thus, this Note looks at Posner's characterization of the ways in which pragmatic adjudicators regard precedents. Part II briefly and roughly sketches the traditional doctrine of precedent. Part III presents Posner's comments about "pragmatic adjudication" and precedents. Part IV discusses Posner's use of Nietzsche in criticizing the reliance of the law on history. Finally, Part V emphasizes the conservative bent inherent in Posner's approach to precedent.


Although few notions are more fundamental to the common law system than the general rule that judges should follow precedents in deciding current cases, the extent to which judges should be bound by precedents has long been a topic of debate."

The typical view of precedent maintains that, where a previous case decided by a court having the right kind of jurisdictional relationship to the current court is legally and factually "on point," the judge will be compelled to follow the precedent in deciding the current case. That is, "[t]he normal interpretation of the doctrine of precedent is, of course, that it is not up to the court to decide whether to follow a precedent; it is bound to do so."12

Posner describes this conception of precedent as part of a larger duty wherein the judge usually begins and ends with a consideration of the appropriate legal authorities, including cases, "to which the judge must defer in accordance with the principle that judges are duty-bound to secure consistency in principle with what other officials have done in the past."13 If the authorities sufficiently dictate a certain result, then "the decision of the present case is likely to be foreordained, because to go against the authorities would, unless there are compelling reasons to do so, violate the duty to the past."14

Other conceptions of precedent vary with regard to the strength of the bond believed to be created by precedents.15 However, as Frederick Schauer notes, it seems central to the notion of precedent that it must provide at least some force greater than a mere reference to past experiences.16 An argument based on past experience finds its basis in the belief that the present (and probably the future) will be substantially similar to the past, such that it is reasonable to utilize the past as a source of information about present decisions. After such utilization, the past has no further meaning, for "[w]hen reasoning from experience, the facts and conclusions of the past have no significance apart from what they teach us about the present. …

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