Publication Date
2013
Abstract
Why and when should courts presumptively defer to their
own past precedents? The doctrine of precedent lies at the
core of American jurisprudence and legal practice, but the
source of its normative force remains unclear.
Consequently, its application is confused and contested.
In this Article, I argue that precedent matters because
and to the extent that it generates reliance interests on the
part of the public. Although I am not the first to suggest
that reliance is the foundational justification for deference
to precedent, this Article represents the first sustained effort
to defend the reliance approach in deontological terms and
to consider its far-reaching theoretical and practical
implications.
In particular,this approach, which has both descriptive
and normative aspirations and features, suggests that we
must at once limit and expand our traditional notions of
what qualifies as precedent. More broadly, it upsets what I
call the gravitational account of laws, suggesting that the
lived experience of those regulated by the law can and
should operate as a constraint on judges.
Recommended Citation
Levin, Hillel Y.
(2013)
"A Reliance Approach to Precedent,"
Georgia Law Review: Vol. 47:
No.
4, Article 2.
Available at:
https://digitalcommons.law.uga.edu/glr/vol47/iss4/2