Richard Re

Precedent as Permission

PUBLISHER
Texas Law Review
DATE
2021
 

Abstract

This article provides an account of precedent that does not call upon it to do the one thing that everyone expects: constrain judicial decision-making. Instead, precedent is tasked to do something else: identify lawful options. So instead of beginning with precedent’s limited ability to constrain, the argument focuses on what precedent enables.

On reflection, precedent has always had two aspects: a permissive aspect that enables certain options and a prohibitory aspect that rules out others. When combined, precedent’s permissive and prohibitory aspects can render certain outcomes mandatory. But that arrangement is contingent, not essential, and precedent’s permissive aspect alone can do a great deal of work. First, precedent’s epistemic value allows it to operate as a shortcut, affording judges an efficient way to arrive at pretty good legal answers. Second, precedent’s rhetorical value allows it to operate as a shield, thereby helping judges resist political and other pressures to deviate from case law. Precedent can thus foster convergence across jurists as well as fidelity to past decisions—even if it imposes no constraint whatsoever.

The upshot is a new “permission model” of precedent, in contrast with the more familiar “binding model.” The permission model challenges longstanding views of stare decisis, particularly horizontal stare decisis in the U.S. Supreme Court. For example, stare decisis is often lambasted for being a malleable doctrine that overlaps with the merits. But the permission model would celebrate that state of affairs. Malleable, merits-sensitive stare decisis helps the justices manage controversial legal transitions based on their understanding of underlying law. And the binding model could simply be infeasible without enforcement. The permission model also points toward novel reforms, including ways of combining both permissions and mandates. Counterintuitively, the best way to strengthen precedent may be to make it more of a permission.

The permission model may not be the kind of precedent we were looking for, but it usefully informs the mode of precedent that we actually have.

Citation

Richard M. Re, Precedent as Permission, 99 Texas Law Review 907-949 (2021).
 

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