With countless cases to outline and moot court briefs to prepare, it's no wonder law students sometimes fail to see the forest for the trees—often glossing over some of the broader aspects of the law that are harder to pin down.
Judicial precedent, for instance, is a cornerstone of the U.S. legal system, ensuring certainty and consistency from case to case. It's also a concept that will play a key role in nearly every aspect of your legal career, from 1L exams to your future practice. And yet, few law school textbooks cover the subject head-on and in any kind of depth, leaving many law students in the dark about the nuances of the practice and how it came to be.
Bryan Garner, one of the country's leading legal experts, noticed this and worked with a dozen appellate judges to remedy the situation. The result was The Law of Judicial Precedent, the first hornbook in over a century to explore the subject of precedent.
In this article, Bryan answers our questions about the importance of judicial precedent in the U.S. legal system, the historical background of the concept, and how precedent works in practice.
How would you summarize the role of precedent in the American legal system?
It's the simple idea courts ought to handle similar cases in a similar way over time. It's the idea of fairness and consistency. People should be able to foresee and understand how the law applies to them.
Why do you think this area of the law has been neglected in the past, and what was your inspiration?
This tricky subject is dealt with to a degree, but not thoroughly, in legal-methods courses, and then it's discussed occasionally throughout law school. But it's such an important subject that it needs a full, systematic treatment. That was the inspiration—because writings about it are often exceedingly narrow and scattered among the law reviews. My co-authors and I discovered why a thorough text has been lacking: the subject is devilishly hard to explain well. It took 13 of us—me along with a dozen erudite appellate judges—three full years of hard work.
What are the legal underpinnings of judicial precedent and stare decisis? Where did these doctrines come from?
They derive from English common law, in which judicial decisions are one of the primary sources of law (the others being statutes and constitutions). Civil-law countries don't have the same commitment to precedent as common-law countries. Justinian (a.d. 483–565) forbade the use of precedent, and then this prohibition became enshrined in all legal systems deriving from Roman law. But in Anglo-American legal systems, the doctrine of precedent remains strong.
How much discretion do judges have in determining whether to follow a prior decision on a similar legal question?
The orthodox view is that judges must either follow precedents or distinguish them. It does involve a fair amount of discretion. So-called “willful judges," who impose their own views on the law, will grab more discretion than others. My co-authors and I believe that good judging requires not being willful; it involves self-abnegation.
Can precedent sometimes preserve the “wrong" decisions?
Absolutely. That's one of its weaknesses. But the legal system has ways of overcoming this weakness. For example, a court may determine that the facts of a current case differ in some significant respect from those in an earlier “wrong" decision and therefore find the precedent inapplicable. In certain circumstances, a high court can overturn its own precedents. But lower courts can never fail to follow a clearly applicable precedent from a superior court.
Any advice for law students who will soon be gaining first-hand experience with precedent in practice?
Read critically. Try to understand how your professors discuss and analyze cases. After class, talk with them about case-reading techniques. There's a lot of nuanced know-how you'll need to pick up. Oh, and read The Law of Judicial Precedent.
Learn More About Judicial Precedent
While adding to your already-substantial law school reading list is probably the last thing you want to do, The Law of Judicial Precedent is more than worth your time if you're interested in gaining a deeper understanding of why our judges reach the decisions they do, and how prior case law informs those decisions. The book not only offers an in-depth look at the history behind judicial precedent but also provides a wealth of practical information on how courts apply the rules of precedent that will serve you well in law school and beyond.
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The Law of Judicial Precedent is the first hornbook-style treatise on the doctrine of precedent in more than a century. It is the product of 13 distinguished coauthors, 12 of whom are appellate judges whose professional work requires them to deal with precedents daily. Together with their editor and coauthor, Bryan A. Garner, the judges have thoroughly researched and explored the many intricacies of the doctrine as it guides the work of American lawyers and judges. The Law of Judicial Precedent is available for purchase at ThomsonReuters.com.