A Response-Dependent Theory of Precedent

Abstract

Doctrinally, a precedent is a case of the same or higher court that furnishes an authoritative rule for the determination of the case at hand, either because the facts are alike, or, if the facts are different, because the principle that governed the first case is applicable to the different facts. In this article I try to free precedent form the dominant doctrinal view by offering a more intuitive conception: that to be precedent means to be treated as precedent. Put differently, I attempt to see precedent not as descriptive of a previous decision or rule but as the aggregate effect of responses to one or a series of court decisions in the legal community. I illustrate this viewpoint by developing a version of a response-dependent concept that incorporates our intuitive grasp of how precedent works. In the pursuit of this task I rely on the basic philosophical premises of response-dependence theory and on one paradigmatic response-dependent concept—the quality of being “funny.”