Posner, Pragmatism, and Precedent

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3 Responses

  1. Simon says:

    First, establishing a firm tradition of adherence to precedent promotes consistency and serves as a limit on judicial power. Second, disrespect for precedent might undermine the political capital of the judiciary and may lead to a backlash by other branches or the public, thus undermining the judiciary’s power in the future. Third, departing from precedent gradually undermines the function of adherence to precedent, which helps establish the legitimacy of judicial decisions. Undermining this source of legitimacy renders impotent one of the primary sources of judicial power.

    For Federal judges, at any rate, and at very least in the context of statutory interpretation, perhaps we could add a fourth issue (albeit of a distinctly non-pragmatic variety) – that stare decisis may well have been part of the original understanding of the judicial power, per Prof. Strang?

  2. Michael Lee says:

    In my personal experience when Dick Posner decides to part with precedent or stretch the law, he will do so in a Rule 53 opinion. In an unpublished opinion he can safely, as he suggests, step outside the boundaries of adherence whild conserving judicial political capital in the eyes of the public.

    Where he desires to punish an outsider (pro se) for having the audacity to disturb the status quo, an unpublished opinion is the perfect tool. He may avoid the undesirable side effect of bad precedent while providing the desirable side effect of enhancing his capital within the judicial community.

    Michael Lee

  3. yakaya says:

    how does the doctrine of binding or judicial precedent operate?