Friday, November 14, 2014

Pfander on Bruhl on the Supreme Court and Lower-Court Precedent

Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).

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Jim asks, "What can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent?” I ask, or about the academy’s fascination with counting precedents? Here is what an ABA Committee said in 1885:

“We can imagine a primitive society, in which a king and his judges were the only magistrates. They had made no laws. The judges decided each controversy as it arose, and by degrees what had been once decided came to be followed, and so there grew up a system of precedents, by the aid of which succeeding cases were decided. Hence came judge-made law. But could any sane man suppose that this was a scheme of government to be kept up when legislatures came in?”

Report of the Special Committee Appointed to Consider and Report Whether the Present Delay and Uncertainty in Judicial Administration Can Be Lessened, and If So, and By What Means? (1885) reprinted in Annual Report of the 8th Annual Meeting of the American Bar Association 323, 348 (1885).

James Maxeiner

Posted by: James Maxeiner | Nov 15, 2014 6:19:49 AM

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