September 24, 2008
The Power of Precedent and Dissenting Opinions
To what extent are the Supreme Court, Congress, and the executive branch constrained by precedent? To what extent should they be? Taking up a topic long overdue for comprehensive treatment in The Power of Precedent (Oxford UP, 2008), Michael Gerhardt (Samuel Ashe Distinguished Professor of Constitutional Law and Director of the UNC Center on Law and Government at University of North Carolina Law School) connects the vast social science data and legal scholarship to provide the most wide-ranging assessment of precedent in several decades.
"Michael Gerhardt's The Power of Precedent is an impressive achievement. The book is Gerhardt's effort to bridge ... 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. -- Reviewed by Douglas E. Edlin, Department of Political Science, Dickinson College, in Law and Politics Book Review.
Mark Tushnet (William Nelson Cromwell Professor of Law at Harvard Law School) reminds us that court decisions are not pronouncements issued by the utterly objective, they are in fact political statements from highly intelligent but partisan people. Tushnet introduces readers to the very concept of dissent in the courts and then provides useful context for each case his covers in I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases (Beacon Press, 2008) filling in gaps in the Court's history and providing an overview of the issues at stake. After each case, he considers the impact the dissenting opinion would have had, if it had been the majority decision. [JH]
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