Emily L. Sherwin (Cornell University – Law School) has posted Do Precedents Constrain Legal Decision-Making? (forthcoming in Timothy Endicott, Hafsteinn Kristjansson & Sebastian Lewis, eds., Philosophical Foundations of Precedent (Oxford University Press 2022/2023)) (19 pages) on SSRN. Here is the abstract:
Judicial decision-making is constrained by determinate, authoritative rules laid down in precedent cases. Other proposed forms of precedent-based decision-making, including analogical reasoning, reasoning from the facts and outcomes of prior cases, and reasoning from legal principles, do not effectively constrain current decision-making. Analogical intuitions, in particular, may aid in legal reasoning by suggesting useful comparisons, but they do not constrain legal reasoning. Thus, in the absence of a determinate rule, judges must rely on their own reasoning about what outcome is best, given the facts at issue and the practical and moral aims of legal decision-making.
Agreed, and I take this to support my view that originalist judges should (at minimum) decline to extend non-originalist precedent).
Posted at 6:54 AM