A recent, and characteristically illuminating, article by Professor Henry Monaghan confidently announces that "[p] recedent is, of course, part of our understanding of what law is."1 As a descriptive matter, Professor Monaghan is entirely correct. Legal analysis-by lawyers, courts, and academics-typically begins and ends with precedent. Law students are meticulously trained in the art of reading, applying, and distinguishing cases. Court pinions, including Supreme Court opinions, on constitutional matters frequently consist entirely of discussions of past decisions, without so much as a reference to the Constitution itself.' Even in this era of law-and-metatheory, case analysis is still the mainstay of legal scholarship. Legal actors disagree, of course, about such important matters as the precise weight to be afforded precedents in particular cases, the appropriate way to determine a precedent's scope, the extent to which precedent actually constrains the judicial process, and the circumstances under which precedents should be distinguished or overruled. Yet almost everyone, at all points on the political and jurisprudential spectrums, agrees to some extent with Professor Monaghan that prior judicial decisions are a critical aspect of law itself. The authority of precedent is a postulate of our legal system. It is uncontroversial. It is warm and fuzzy. And, in some of its most familiar applications, it is unconstitutional.
Gary S. Lawson,
The Constitutional Case Against Precedent
Harvard Journal of Law & Public Policy
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2619