by Michael J. Gerhardt. New York: Oxford University Press, 2008. 352pp. Hardcover. $45.00/£23.99. ISBN: 9780195150506.
Reviewed by Douglas E. Edlin, Department of Political Science, Dickinson College. Email: edlind [at] dickinson.edu.
Michael Gerhardt’s THE POWER OF PRECEDENT is an impressive achievement. The book is Gerhardt’s effort to “bridge the chasm” (p.3) that is all too familiar to readers of the LPBR: the divide between legal scholars who view precedent (and law more generally) as a substantial influence on judicial thought and action and social scientists who view precedent (and law more generally) as politics by other means. Spanning that chasm is a challenge no book can meet on its own, of course. But Gerhardt has made a real start. His book engages meaningfully with leading scholarship from social scientists and academic lawyers, without succumbing to reductionism or polemic. And he has written a book that is engaging, provocative, balanced and (I cannot emphasize this enough) a genuine pleasure to read.
In this review, I will summarize Gerhardt’s argument as it progresses, pausing along the way to interject comments, questions and the occasional criticism. Gerhardt frames his discussion of precedent with a limitation and an expansion in relation to traditional approaches, as an attempt to “combine conventional legal analysis with social science research” (p.79). He limits himself to an analysis of precedent on the Supreme Court in constitutional cases. But he also considers the creation and effects of what he calls “nonjudicial” precedent. His proposed conception of precedent, which he calls the “golden rule of precedent” (p.3), also reflects his desire to bridge the gap in approach between legal and social science analysis. According to the golden rule of precedent, as Gerhardt conceives it, justices “treat others’ precedents as they would like their own to be treated or risk their preferred precedents being treated with the same kind of disdain that they show others’” (p.4). By framing precedent in this fashion, Gerhardt allows readers to decide for themselves, to an extent, why justices follow precedent. It might be, as many legal scholars would have it, that justices follow precedent because of a sense of institutional obligation and mutual respect. Or it might be, as many social scientists believe, that justices follow precedent (if at all) because of a calculation of rational self-interest. This adherence to precedent may therefore be conceived as a normative judicial practice or as an individualized cost-benefit calculation. In other words, Gerhardt’s golden rule can be read as compatible with (and palatable to) legal scholars’ and social scientists’ approaches to the subject. And Gerhardt attempts to articulate this approach in a manner that will not alienate either of his target constituencies. This is an intriguing notion, which works well for Gerhardt’s purposes, although it raises a possible conceptual difficulty that I discuss at the end of this review. [*812]
Gerhardt begins his argument in Chapter 1 by asserting that a “basic principle of constitutional law” in the United States precludes Congress from overturning “the Court’s constitutional decisions through ordinary legislation” (p.9). This seems a curious place for Gerhardt to start, because some social scientists would disagree with this claim from the outset. For example, James Meernik and Joseph Ignagni (1997) argue that Congress enacts legislation in a statistically meaningful number of instances that effectively counteracts constitutional decisions of the Court. In addition, even if Gerhardt proceeds from an accurate understanding of American constitutional law, the basic principle to which Gerhardt alludes is itself the result of judicial precedent rather than constitutional provision. That fact troubles many of the scholars whom Gerhardt hopes to persuade and his assumption of this basic principle without any reference to the relevant underlying debates about departmentalism, democratic deficits or bootstrapping might seem slightly cavalier. In any event, and perhaps more to the point, nothing in Gerhardt’s argument depends upon this claim, so we need not detain ourselves further here.
The rest of Chapter 1 consists of a remarkably thoughtful and accessible collation and integration of statistical and doctrinal materials, supported by a series of very useful appendices that chart instances of explicit, implicit and urged overrulings by subject, court and justice. For example, Gerhardt provides detailed analysis of rates of overruling together with other judicial methods of minimizing or marginalizing disfavored precedents. In addition, these data are correlated to account for fluctuations in relation to time, caseload and personnel. Gerhardt provides an interesting breakdown of these decisions according to Chief Justices’ tenure and individual justices’ votes and efforts to persuade the Court to overrule (even when unsuccessful). Among other things, this individualized analysis exposes the unhelpfulness and oversimplification of attempting to categorize justices along a binary axis of judicial activism or restraint.
Gerhardt also rightly notes that simply counting the number of overrulings and attempted overrulings as conclusive evidence of judicial attitudes toward precedent is misleading, because this fails to account for repeated dissents by particular justices concerning the same legal issue (e.g., Thurgood Marshall’s and William Brennan’s dissents in death penalty cases). Gerhardt explains further that changes in the rate of overruling along with academic and popular fixation on the effect of personnel changes on the stability of precedent obscures the fact that “the Court usually employs the same criteria in reviewing its precedents” now as it has for at least a century (p.17).
Gerhardt examines various articulations of varying approaches to the relative force of existing precedent on later decisions. He considers, for example, cases involving the exclusionary rule, victim impact statements, abortion, affirmative action and state sovereignty. He concludes that, since 1999, the Court has “explicitly overruled” only seven constitutional precedents. In each of these cases, the Court’s stated rationale was “irreconcilability [of the relevant precedent] with subsequent case law” (p.31). [*813] Gerhardt also indicates that the Court usually attempts to avoid explicit overruling of its constitutional precedents. Instead, the Court more frequently opts to narrow the construction of precedent or to overrule precedent by implication or “sub silentio” (p.35).
Chapter 1 ends with Gerhardt touching on the important point that precedent influences judicial reasoning and decision making in many cases in which the justices do not address that influence directly. This influence can best be appreciated by considering the number and nature of cases in which certiorari is denied. The extensive “areas in which the Court no longer decides cases” highlight “the extent and number of the settled areas of constitutional law” (p.45).
In Chapter 2, Gerhardt surveys and evaluates what he calls the “most prominent” theories of precedent among legal scholars and social scientists. He divides these theories into two groups: the “weak view” and the “strong view” of precedent. Neither, as it turns out, is adequate. I should mention here, before going on to discuss his analysis of these views, that Gerhardt generally prescinds from consideration of whether the meaning of precedent can be definitively determined, how holdings are distinguished from dicta, and whether the content of precedent cases is necessarily found in a specific opinion or constructed through lines of argument and processes of interpretation. Although some readers may view this as problematic, I found it refreshingly forthright and pragmatic. While there surely are important issues of ambiguity in textual meaning and lapses in judicial candor, for the most part lawyers and judges know what the cases say. Typically, they disagree about whether they should follow what the cases say, and these are the most pertinent disagreements for Gerhardt’s purposes. In addition, some readers may be surprised to find that the work of certain scholars, e.g., Larry Alexander and Frederick Schauer, is not discussed in this book (although Gerhardt might say that the work of these scholars can accurately be placed into the two categories he identifies). I suspect there is a good reason for this. Gerhardt has written a book that engages a wide swath of scholarship from two disciplines in the hope of encouraging those groups to talk more directly with each other. To do so effectively, the scholarship cannot be allowed to overwhelm the discussion. Gerhardt has tried to represent various academic and judicial perspectives fairly while still allowing the pace of the discussion to remain crisp and lively. He has succeeded admirably. Everyone who reads this book will find something with which to disagree. That is to be expected. Everyone who reads it will also enjoy the feeling of intellectual frisson that the book generates. That is somewhat unexpected, but most welcome.
Drawing on the work of Thomas Lee, Gerhardt traces the origins of the weak view to writings of Blackstone and other seventeenth- and eighteenth-century British writers and judges. According to this well-known “declaratory theory” of law, judicial decisions are evidence of the law but are not necessarily law in and of themselves. Accordingly, judicial decisions deemed to be erroneous may be discarded as misstatements, or non-statements, of the law, properly [*814] understood. This approach, which Gerhardt characterizes as “treat[ing] common law as the model for constitutional adjudication” (p.48), involves relying more on distinguishing and analogizing, rather than overruling, in the exegesis of constitutional law.
Gerhardt then notes that certain justices and academics – Douglas, Black, Scalia and Thomas are cited as judicial examples – subscribe to the weak view. Raoul Berger is mentioned as an academic proponent of this view. Indeed, an interesting and counterintuitive (to some) observation here is that “conservatives have asserted a weak view of precedent more openly and boldly than their liberal counterparts” (p.54).
In criticizing the weak view, Gerhardt points out three problems. First, it has never enjoyed consistent support among a majority of the Court (or even among its purported adherents over the course of their careers). Second, the weak view’s basic assumption that precedents lack provenance as legal sources is belied by the Constitution’s “text, structure, and original meaning” (p.58). The constitutionally established authority to resolve cases and controversies necessitates “a power to determine the sources of authority on which constitutional rulings properly rest” (p.59, quoting Richard Fallon). Moreover, according to Gerhardt, Congress may not attempt to define or restrain the approaches the Court may take in relation to precedent without violating separation of powers principles. The norms and practices of reading and writing judicial opinions (including whether to produce those opinions at all) are left exclusively to the Court. For Gerhardt, these points demonstrate that the weak view accords inadequate credence to the constitutional foundation and significance of precedent in constitutional adjudication.
In contrast to the weak view of precedent, the strong view is grounded in constitutional text and structure, which explicitly empower the Court to make authoritative pronouncements of constitutional law. In addition, the Court itself sometimes continues to follow certain concededly dubious decisions and continues to maintain some areas of legal doctrine whose principal source is judicial precedent. These practices are broadly consistent with the strong view, according to Gerhardt. The strong view also supports the precedential values of stability and consistency and reflects the fact that precedent is cited so pervasively in constitutional cases. And some legal scholars perceive precedent as supplanting the constitutional text itself in specific areas of constitutional doctrine.
Reinforcing the support for the strong view in judicial decisions, Gerhardt mentions some prominent scholars, such as Ronald Dworkin, David Strauss and Kathleen Sullivan, who argue (in different terms) that precedents shape constitutional doctrine over time through “the force of their reasoning” (p.67) rather than grand theories or fixed rules. Sullivan, for example, argues that justices cannot be fitted into simplistic ideological categories based on their respective approaches to precedent.
According to Gerhardt, the most forceful critics of the strong view are social scientists whom he divides into five groups: (1) attitudinalists, (2) rational [*815] choice theorists, (3) empiricists, (4) postpositivists and (5) skeptics. In Chapter 2, Gerhardt addresses the first three groups’ criticisms of the strong view, and he discusses the final two groups in Chapter 3.
Harold Spaeth and Jeffrey Segal are Gerhardt’s (entirely reasonable) choices as representatives of the attitudinalists. Broadly speaking, the attitudinalist criticism is meant to demonstrate through quantitative analysis of case decisions that “the influence of precedent [on judicial decision making] appears to be quite minor” (p.70).
The rational choice criticism of the strong view takes a different tack. Rather than argue that precedent is largely irrelevant to judicial decision making, these theorists assert that precedent is employed primarily in instrumental terms. In other words, justices value and refer to precedent principally to aid themselves in arriving at their desired policy outcomes.
In response to these criticisms of the strong view, Gerhardt returns to his motivating concern about the disciplinary chasm separating legal scholars from social scientists. As Gerhardt sees it, “many if not most legal scholars ignore the dominant social science models . . . or argue judging cannot be quantified and consider empirical analysis untrustworthy” (p.71). This “impasse” between social scientists and legal scholars troubles Gerhardt, and he begins his effort to bridge the chasm in earnest in Chapter 3.
In Chapter 3, Gerhardt addresses the final two groups of social scientists whose views he categorized, but did not discuss, in Chapter 2: the postpositivists and the skeptics. The postpositivists on whom Gerhardt concentrates are historical institutionalists such as Howard Gillman. The virtue of this view, according to Gerhardt, is that it offers an empirical counterargument to claims by attitudinalists and rational choice theorists that “the Court primarily functions as a cipher for justices’ expressions of their individual preferences” (p.80). Moreover, historical institutionalism supports the fundamental notion that “legal variables explain and shape how constitutional doctrine has evolved . . . [and] the judicial process shapes practices and choices within constitutional adjudication” (pp.80-81).
The other group of social scientists whom Gerhardt cites as unpersuaded by attitudinalism and rational choice theory are skeptical of postpositivism, as well. This diverse group includes, for example, Herbert Kritzer, Mark Richards, Lawrence Baum, Cass Sunstein, Stefanie Lindquist and Frank Cross. Their approaches and results differ, needless to say, but they all share the conclusion that existing models of precedent inadequately express its authentic dynamics and effects in judicial decision making.
According to Gerhardt, the best conception of precedent in the Supreme Court should acknowledge its “limited path dependency” (p.94). This is important for two reasons. First, it counters the somewhat rigid and, as Gerhardt sees it, inaccurate view held by some social scientists that precedent generates no path dependency whatsoever. Second, it acknowledges [*816] certain constitutional and institutional realities in which the Court operates.
Gerhardt is critical of social scientists who analyze courts as though they were legislatures, and he criticizes other scholars who treat constitutional and common law adjudication similarly. The first criticism seems fair enough, but the second is based on two assumptions that are themselves problematic. First, Gerhardt states that the Court’s deference to constitutional precedent is less stringent than its deference to common law precedents. But Gerhardt traces this differential approach to the “structural” claim that “[i]n a common-law system, precedents are the exclusive source of legal authority” (p.97). Gerhardt makes this claim because he believes that, “[b]y definition, common-law cases are those in which a legislature or higher authority has not yet spoken” (p.97). This seems somewhat misleading. To take just one example of many, the Uniform Commercial Code has codified the law of sales in US jurisdictions, but this does not mean that courts no longer make law in this area or that commercial contract law can no longer be considered to be made through forms of common law adjudication.
In addition, switching from common law cases to common law systems, the claim that precedents are the exclusive source of legal authority seems historically, legally and politically untenable. To be sure, the extraordinary surfeit of legislative enactments has had a significant effect on the US legal system. But this has neither removed the US from the list of common law nations nor removed precedent from the list of legal sources. Moreover, scholars have considered the effects of increased legislation on the legal system and on the judicial institution (Calabresi 1982). It is also interesting to note in this connection that two scholars Gerhardt cites as endorsing the (in his view mistaken) position that “precedent imposes a degree of path dependency in constitutional adjudication similar if not identical to path dependency in the common law” (p.96), Frank Easterbrook and Richard Posner, are also federal circuit court judges. And one might also respond to Gerhardt that if this is Easterbrook’s and Posner’s view, then this also is likely the reality, at least in their decisions on their court.
Simply put, the fact that precedents are a recognized source of legal authority may help to differentiate common law systems from civil law systems. This does not and need not necessarily mean, however, that precedents are the only source of legal authority in common law systems. In every common law system with a legislature, which is to say, in every common law system that has ever existed, legislation and precedent are both recognized as sources of legal authority (although their respective scope and interaction have been differently understood over the years). And even where a legislature has spoken to an issue, this does not mean that courts may no longer do so.
Some other factors Gerhardt considers in relation to the path dependency generated by precedent are the difference between rules and standards, the entrenchment of certain Supreme Court precedents, and changes in Court personnel. In addressing the effects of precedent on later judicial decisions, Gerhardt notes that the limited path dependency of Supreme Court [*817] precedents is also modulated by the dynamics of an institution that operates via majority vote while not itself being subject to review by a higher authority and by the absence of fixed rules governing the Court’s approach when considering its own precedents.
Gerhardt concludes Chapter 3 by describing two additional influences on the longevity of Supreme Court precedent. The first Gerhardt calls the “X-Factor” (p.106). These are the social, economic and political forces that influence the justices’ reasoning (and the expression of their reasoning in written opinions) in various ways. The second are what Gerhardt terms “network effects” (p.109). Network effects may be evaluated, generally speaking, by assessing the way that later justices consider their predecessors’ work. The most straightforward of these assessments is captured by the frequency with which a given precedent is cited. More frequent citation means more significant precedent and vice versa. Gerhardt points out, though, that network effects have to this point been considered only in relation to courts and on the assumption that frequency of citation alone is sufficient when evaluating precedential value. We must also recognize, however, that precedents are cited for various purposes at different times (and not always approvingly). Gerhardt pursues these two points in Chapters 4 and 5.
In Chapter 4, Gerhardt examines nonjudicial precedent. Nonjudicial precedent is any constitutional judgment made by a nonjudicial public authority, which is claimed or treated as a norm by that authority. As Gerhardt sees it, the somewhat myopic focus on judicial precedent has skewed the focus of scholarship on the courts, and particularly on the Supreme Court. Indeed, the vast majority of precedents are nonjudicial, and these range from presidential signing statements to the use of senatorial courtesy. And most of these nonjudicial precedents remain undisturbed by the Court, indicating that most law of constitutional significance is not, in fact, made by the judiciary.
According to Gerhardt, the defining characteristic of nonjudicial precedent is its “discoverability” (p.111). Discoverability is, roughly speaking, the effort by public authorities to invest some, but not all, nonjudicial governmental action with “normative authority” (p.112). With this understanding in mind, Gerhardt describes three straightforward examples of nonjudicial precedents that have, over time, become invested with normative precedential force: vice presidential succession to the presidency, presidential signing statements and the nonimpeachability of members of Congress. The more complicated and interesting examples of nonjudicial precedent that Gerhardt considers are congressional actions to censure a president, majority rule in the Senate and treaty authorization by the Senate as a prerequisite for presidential commitments of military forces. These examples are more complicated than vice presidential succession and nonimpeachability of members of Congress for three reasons: (1) incomplete historical records, (2) conflicting precedents and (3) few citations to establish precedential authority. [*818]
There are a few problems with Gerhardt’s analysis of nonjudicial precedent. First, as I mentioned earlier, Gerhardt defines precedent in a judicial context as a “golden rule.” So when he discusses discoverability as the distinctive feature of nonjudicial precedent, it is not entirely clear whether that is supposed to supplant the “golden rule” as the definition of nonjudicial precedent or whether the precedential force of the nonjudicial action can be determined only by seeing what courts later do. Gerhardt believes that “a golden rule of precedent may be apparent outside the Court” (p.144). As I will discuss in more detail later, however, this leaves the crux of the normativity point up in the air. According to a prevalent view, if precedent is genuinely a judicial norm then judges must have some obligation to follow it. If members of Congress may sometimes act out of a “golden rule” motivation, that does not yet explain what the consequences are or should be when they opt not to act from such a motivation. Second, Gerhardt discusses examples of nonjudicial precedent that involve legislative or executive action. But this leaves unexplained Gerhardt’s preferred understanding of conflicts between the representative branches and the judiciary. In connection with this point, Gerhardt later mentions the famous instances of UNITED STATES v. NIXON and CLINTON v. JONES (p.150) in which the Court refused to accept executive efforts to establish as a nonjudicial precedent an absolute privilege of confidentiality for communications within and among members of the executive branch. Again, however, this leaves unexplained a more fundamental difficulty for the relationship between judicial and nonjudicial precedent: does judicial precedent trump nonjudicial precedent and, if so, why is the judiciary the institution empowered to make that determination? To advocates of departmentalism, this unanswered question might seem troubling.
As a partial response to some of these possible objections, Gerhardt notes that certain nonjudicial precedents are constitutionally established (p.129), and the Court’s authority to review certain nonjudicial actions is constitutionally limited (pp.131-135). Moreover, he points out that certain nonjudicial precedents are more intrinsically influential than others. He categorizes nonjudicial precedents as vertical-vertical (binding authority within the branch creating them and on other branches, such as presidential pardons), vertical-horizontal (binding within the branch that created them but persuasive in other branches, such as official opinions of the Attorney General), horizontal-horizontal (persuasive within the authority creating them and in other branches, such as the tradition of selecting a Chief Justice from outside the Court), and horizontal-vertical (persuasive authority within the institution that created them but binding on other institutions, such as approval of a judicial nomination by the Senate Judiciary Committee) (pp.136-138).
Two other characteristics of nonjudicial precedent that Gerhardt addresses are limited path dependency and effects on judicial supremacy. Nonjudicial precedent possesses limited path dependency, in Gerhardt’s view, because nonjudicial precedent is not ordinarily understood as a form of rule or standard. [*819] As a result, it is often difficult to assess precisely what effect nonjudicial precedent is intended to have on later actors and institutions. Part of the reason for this is the absence of any accepted rules for interpreting or applying nonjudicial precedents. Compounding these complexities is the potential challenge nonjudicial precedent presents for judicial supremacy. Gerhardt argues that an appreciation of the importance of nonjudicial precedent undercuts the conventional acceptance of judicial supremacy as a given in the US constitutional system. Rather than allow judicial supremacy to prevent the exercise of popular constitutional interpretation and to permit nonjudicial actors to ignore their independent obligation to consider the constitutionality of their actions, Gerhardt argues that nonjudicial precedents can serve to broaden the public awareness of and participation in the construction of constitutional meaning. This seems particularly valuable, according to Gerhardt, because the Court cannot and does not resolve many constitutional questions and nonjudicial precedents contribute far more to our law and culture than we tend to realize, given our preoccupation with judicial precedent and constitutional interpretation.
In Chapter 5, Gerhardt expands his discussion of precedent to include functions beyond constraining the actions of judges or other governmental actors. In addition to its constraining force, Gerhardt highlights the importance of precedent “as a mode of constitutional argument” (p.147), the form in which judges resolve legal disputes, a method of setting the Court’s agenda, a means of facilitating constitutional dialogue on the Court and between the Court and other nonjudicial actors, and a basis for defining the nation’s constitutional structure. In addition to these more immediate functions served by precedent, Gerhardt also considers three meaningful effects of judicial precedent beyond its role in judicial and nonjudicial decision making. First, judicial precedents have sometimes played major roles at key moments in US history. DRED SCOTT is commonly understood as a major precipitating event of the Civil War and BUSH v. GORE both determined the outcome of the 2000 presidential election and forever placed the Court at the center of that historical episode. Second, judicial precedents sometimes serve as records of historical events. Third, precedents are efforts, in certain circumstances, for the Court (or a nonjudicial actor) to position itself “on the right side of history” (p.166).
In the last part of Chapter 5, Gerhardt considers four additional functions that are often mentioned in relation to precedent. First, precedent is sometimes described as the Court’s medium for educating the public about the Constitution. Second, precedent can be invested with symbolic meaning as part of a larger social movement or historical period. Third, judicial and nonjudicial precedent play a role in constructing American national identity. Fourth, precedent can serve as the Court’s effort to articulate or defend constitutional values. Of course, the degree to which precedent does, or should, perform these functions is the subject of ongoing debate. But Gerhardt is right to note that each of these functions plays a role when considering the variegated functions that precedent is considered to fulfill. [*820]
In Chapter 6 Gerhardt examines so-called “super precedents.” These are the judicial decisions (or nonjudicial precedents) that are “so deeply embedded in our law and culture that they have become practically immune to overturning” (p.177). The most familiar examples of super precedents established the power of judicial review. MARBURY v. MADISON and MARTIN v. HUNTER’S LESSEE are the first super precedents Gerhardt cites in his discussion.
The next group of super precedents established what Gerhardt calls “foundational doctrine” (p.180). These are the cases involving incorporation of the Bill of Rights against the states and nonjusticiability of political questions. In contrast with the foundational doctrine cases, Gerhardt also discusses “foundational decisions,” which he views as “the most potentially controversial super precedents” (p.182). Foundational decisions are longstanding, often cited, shape doctrinal development, enjoy social approbation, and are viewed by courts as well-settled. Examples here are cases “upholding the constitutionality of paper money” (p.182), denying the constitutionality of segregation, and establishing the “framework for analyzing separation of powers conflicts” (pp.184-185). Gerhardt concludes Chapter 6 by responding to possible criticisms of super precedents and considering the implications of super precedents for constitutional law and theory.
In the conclusion, Gerhardt summarizes the Roberts Court’s use of precedent in terms of limited path dependence and network effects. Gerhardt views the Roberts Court and the Rehnquist Court as institutional demonstrations of his golden rule of precedent. In Gerhardt’s view, consideration of judicial and nonjudicial precedent is necessary for any accurate understanding of constitutional law in the US. And this understanding “requires recognizing that we can break with some particular precedents, but we cannot break away from precedent” (p.203).
I should discuss in a bit more detail one concern about Gerhardt’s argument to which I alluded earlier. By calling his preferred model of precedent a golden “rule,” Gerhardt seems to skirt or beg a fundamental question: does this mean that precedent reflects the conventional collective behavior of judges or that precedent functions as an internalized institutional norm against which judicial decisions may be critically assessed? This distinction between habitual behavior and authentic rule-following is central to one of H.L.A. Hart’s famous criticisms of John Austin (Hart 1994). Gerhardt need not enter into the jurisprudential debate, but he does need to say a bit more about what it means that precedent is a “rule” on his account. This distinction, between behavioral conventions and authentic obligations, would help in evaluating whether Gerhardt means to argue that precedent is an expression of a justice’s desire “to preserve the value of his own coin” (p.18, quoting Geoffrey Stone) or is an expression of an institutional directive that the justice feels bound to observe in some fashion. At the end of the book, Gerhardt states that “[a]dhering to the golden rule does not oblige public officials, or justices, to accept any particular precedents . . . with which they disagree” (p.201). But this will leave some of his readers wondering [*821] whether Gerhardt believes precedent actually influences decision making beyond the quid pro quo exchange that Gerhardt’s golden rule seems to suggest. Without knowing whether Gerhardt’s golden rule of precedent is best conceived as a convention or an obligation, it is difficult to assess the extent to which precedent is ever truly binding. In his most direct discussion of this point (pp.151-153), Gerhardt suggests that precedent figures in reasoning and decision making to the extent that it is deemed to apply to constituencies that find it meaningful and in circumstances in which it validates constitutional arguments or interpretive approaches. Given some commonly accepted definitions of precedent, however, this does not really answer the key question: does precedent ever require judges to reach decisions with which they disagree? That is not Gerhardt’s definition of precedent, and it need not be, but it is an understanding of precedent that Gerhardt might have addressed more directly than he does in this book.
The questions and criticisms raised in this review should be taken as an indication that the book deserves serious attention, not just for the value of Gerhardt’s own contribution to ongoing debates about precedent but equally for his thoughtful effort to expand and enliven those debates. Gerhardt engages social scientists and legal scholars in a discussion about precedent, distills and analyzes their scholarship, and provides a basis for continuing the conversation between these groups. Both groups should and will respond to Gerhardt’s work as the debate continues. We should respond to his example, as well.
Calabresi, Guido. 1982. A COMMON LAW FOR THE AGE OF STATUTES. Cambridge, MA: Harvard University Press.
Hart, H.L.A. 1994. THE CONCEPT OF LAW (2nd ed). Oxford: Oxford University Press.
Meernik, James and Joseph Ignagni. 1997. “Judicial Review and Coordinate Construction of the Constitution.” AMERICAN JOURNAL OF POLITICAL SCIENCE 41:447-467.
CLINTON v. JONES, 520 U.S. 681 (1997).
MARBURY v. MADISON, 5 U.S. 137 (1803).
MARTIN v. HUNTER’S LESSEE, 14 U.S. 304 (1816).
SCOTT v. SANDFORD, 60 U.S. 393 (1857).
UNITED STATES v. NIXON, 418 U.S. 683 (1974).
© Copyright 2008 by the author, Douglas E. Edlin.