An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent

Deferentialism: A Post–originalist Theory of Legal Interpretation

In this paper, I present “Deferentialism,” a new conception of legal interpretation that has close affinities with originalism, while shedding much of its accumulated baggage. The new conception includes two dimensions of deference to original sources: one to a species of original meaning, and the other to a species of original intent. The dimensions are ordered. The first task is to identify t...

Precedent in the Making

The Practice of Precedent: Anastasoff, Noncitation Rules, and the Meaning of Precedent in an Interpretive Community

Like sailing, gardening, politics, and poetry, law and ethnography are crafts of place: they work by the light of local knowledge. The instant case, Palsgraff or the Charles River Bridge, provides for law not only the ground from which reflection departs but also the object towards which it tends, and for ethnography, the settled practice, potlatch, or couvade, does the same. Whatever else anth...

Unit precedent

The Result Model of Precedent

The result model of precedent holds that a legal precedent controls a fortiori cases— those cases, that is, that are at least as strong for the winning side of the precedent as the precedent case itself. This paper defends the result model against some objections by Larry Alexander, drawing on ideas from the field of Artificial Intelligence and Law in order to define an appropriate strength ord...