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The Power of Precedent

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The public may not be aware how integral the doctrine of precedence (or known in jurisprudence as "the doctrine of stare decisis") is in a common law system of law, much less how the doctrine works. Even a practising lawyer who is expected to have a working knowledge of the doctrine may often find to his amazement that the court had rejected his argument which he (the lawyer) believed was based incontrovertibly on a precedent. The reason for this may be attributed to the court having a different idea of what formed the binding part of the precedent in question; or it might just have decided that the facts were so different that the precedent was no precedent at all; or it might just have blatantly refused to follow the previous authority because it was of the view that, though relevant, the principle was wrong, or no longer sustainable.

"The Power of Precedent" provides an excellent account of the doctrine of precedence and why it has been a foundational structure of a common law legal system. Although this structure appears to have withstood the test of time throughout the common law world, modern jurists are beginning to examine the cracks in it with a sharp eye. Written in the context of American constitutional law, this book is also highly relevant to all levels of courts. Gerhardt explains the 'weak' as well as the 'strong' views of precedence. The former view is essentially a rejection of the doctrine of precedence while the latter accepts precedence 'as the principal, or most meaningful touchstone of constitutional law.' The author then proceeds to expound his own 'moderate' view in an attempt to do two things. First, to avoid the evil which the weak view seeks to dispel, namely having the past rule the present with an iron and outdated fist, and thus withholding the flexibility that laws require to meet modern situations and circumstances. Secondly, the moderate view aims to ensure some degree of conformity and consistency so that the law will not depend, as it used to be said, 'on the length of the Chancellor's foot.' In chapter 6, Gerhardt discusses what he calls 'Super Precedents' which are precedents 'being so deeply embedded in our law and culture that they have become practically immune to overturning.'

This is a compelling book that forces the reader to ask deep questions about the role of precedence, and also about the possibilities of change that would inevitably alter the common law system itself. Let there be neither haste or reluctance. This is a subject that requires extensive scholarship and long, reflective thinking. Michael Gerhardt has, in this book, provided a broad and solid plank for the reader to begin what will surely prove to be a very rewarding intellectual exercise.