"Precedent indeed may serve to fix principles, which for certaintys sake are not suffered to be shaken, whatever might be the weight of the principle, independent of precedent. But precedent, though it be evidence of law, is not law in itself; much less the whole of the law."
Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of stare decisis, where past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability.
"Judicial decisions on prisoners’ rights construct their own history, “founded on precedent, repeated, and gaining in force with each repetition.” Precedent, she argues, operates like ritual in that it gains authority the more it is tried and used. The law, in the histories it constructs and the memories cited there, “is a tomb of dead ideas.”"
"While metaphor provides a space for innovation, the last essay-by G. Edward White-shows how reasoning by analogy is used to stitch together the threads of precedent that comprise law’s own history. Analogical reasoning, White argue, “is in fact the standard technique of reasoning in the Anglo-American legal system. It consists of establishing previously decided cases as ‘authoritative’ because they embody certain rules that the system has internalized.” It allows judges to construct a history of doctrine with little overt reference to the world outside law and, as a result, provides a crucial component of the argument that legal decision making is autonomous. And, White notes, while analogical reasoning may seem to the nonlawyer to impose few constraints on judges, in practice the legal system places a “high value on following precedent and thus treats most previous decisions whose rules appear arguably apposite as being so. When lawyers and judges seek to be creative, the vehicle for their creativity is the marshaling of rich and persuasive analogies yet since those analogies “invariably summon up existing cases, rules, and principles, the discourse of American law is inherently time-bound and conservative.”"
"White finds “striking parallels” as he explores the way law’s history was brought to bear on the question of the regulation of radio. Faced with an evolving and developing First Amendment jurisprudence, courts nonetheless had little trouble, White argues, upholding the Radio Act of 1927, through which the Congress asserted government ownership of the airwaves. They focused on radio’s potential to reach vast audiences as well as the scarcity of radio frequencies. They drew an analogy to film and claimed that, like the former, radio was intrusive and pervasive in its reach. Yet today, somewhat paradoxically, the latter is subject to a far more restrictive regulatory regime than the former, though today new analogies and new precedent prevail. Film and radio are now regarded not simply as property; the new analogical structure provides greater First Amendment protection by treating them as like the print media."
"In the end, White claims that analogical reasoning in itself, though powerful in explaining the way innovations are accommodated in the construction of a doctrinal history, is insufficient to explain this process. He suggests that we can understanding the way innovations are accommodated in the construction of a doctrinal history, is insufficient to explain this process. He suggests that we can understand how law’s history gets created by focusing on both the concerns that are vital in the larger culture in which decisions are being made, and the available analogies through which legal discourse can respond to those concerns. Precedent constrains yet leaves room for adaptation. The internal history that law constructs to legitimate itself is not, and cannot be, completely insulated from the external history that gives rise to problems, cases, and calls for legal resolution"
"Yet there is another image of precedent, of law’s history, in which the force of precedent compels judgment, in which precedent is treated as a rule for foreclosing the possibility of any other legitimate considerations. This image is perhaps best exemplified in Justice Marshall’s dissent in Payne v. Tennessee. In Payne the Supreme Court overruled its earlier decision in Botth v. Maryland in order to hold that the use of so-called victim impact statements in the sentencing phase of capital trials was not a violation of the eighth Amendment. The majority opinion written by Justice Rehnquist explained its overruling of Booth by invoking attitude toward precedent that would later emerge in Casey to justify adhering to precedent. As Rehnquist put it, “Adherence to precedent is ‘usually the wise policy.’” It is not, Rehnquist warned, a “mechanical formula” of adherence to the latest decision no matter how misguided. Marshall responded by conjuring a different relationship of law’s present to its past. He called for “fidelity” to precedent and claimed such fidelity was essential if courts were not to subject the people to the rule of “an arbitrary discretion.” In his view the Court has “a duty to stand by its own precedents.” Discharging that duty, against the ties of changing personnel on the Court or a changing political climate in the country, was Marshall claimed, necessary to a judiciary that sought to be a “source of impersonal and reasoned judgments.” The history that Marshall constructed is a history in which the past should rule the present, in which authority could and should be excavated from a continuous process of reading and rereading of the judiciary’s own products. It is a history of “fidelity,” of “duty” in the face of temptation. Failing to follow precedent would mean that “power, not reason,” would be the currency of judicial decision making."
"Concern for the memory of slavery and its place in law also animates the next essay, by Brook Thomas. His concern, however, is less with memory than with the way law both lives in, and finds resources to escape, the precedential world it creates. Thomas wants to illuminate what might be called the indeterminacy of historical argument in legal decision making as well as the way judges can both appeal to history and yet evade the history to which they appeal. He argues that, at least in the context of decisions on racial discrimination, judges deploy metaphors to produce novel interpretations of legal doctrine while continuing to honor the doctrinal history that they are changing. “Metaphor . . . allows for innovative interpretations that paradoxically claim to stay true to the meaning of the text at hand.”"