We’re excited to welcome to the blog Joel Trachtman, Professor of International Law at The Fletcher School of Law and Diplomacy, and author of The Tools of Argument: How the Best Lawyers Think, Argue, and Win. Today he is sharing with us an excerpt from his popular book.
The Salience of Precedent
As you begin law school, you will learn that a good deal of argument in a the U.S. legal system is about whether there is a prior case that sets a governing precedent for the current case. Lawyers, especially common law lawyers, like precedent, but so does everyone else. When faced with a new problem, it is not a bad thing to ask first, how did we deal with this issue the last time it arose? One rationale for this instinct is simply laziness, or, as some like to call it, the search for efficiency. The use of precedent is not just supported by a drive for sensible consistency but by a drive to economize on evaluation and decision-making. Of course, it may be that we fool ourselves by relying too much on precedent. It could be that if we thought the issue through again, we might come up with a better solution. But we might not, and we would have wasted all of that thinking time.
We can think of a body of recorded or remembered precedent as a vast storehouse of social knowledge—knowledge of how we dealt with these issues in the past. It can be a powerful argument that the treatment you propose is consistent with precedent, both in order to maintain a rule-of-law-based society and in order to benefit from earlier analysis. Some types of decisions will benefit from adherence to a principle of conservatism: the burden of proof is on those who seek change. This principle is expressed in the aphorism, “If it isn’t broken, don’t fix it.” You might say that those who seek change must show that something is indeed “broken.”
Moreover, it is not just the benefits of earlier analysis and conservatism that we obtain as a result of adherence to precedent. In addition, depending on the age of the precedent, and more importantly on how often it has been followed and how well accepted it appears to be in general society, we might assume that the precedent has a degree of support from consensus, or at least acquiescence. Perhaps, after the judge made the decision, opposing advocates tried to convince other judges to reverse it, or tried to have legislators amend the underlying law or pass a law to reverse it, and failed.
Adherence to precedent is not just about consistency or the rule of law. It is also about information and experience. In a number of pursuits, we say that there is no substitute for experience.
Experience allows us to make nuanced decisions based on information gathered through practice. Businesses have long recognized that this type of know-how is valuable and should be captured, recorded, and disseminated. The common law represents a system for doing so.
There may be circumstances in which research or other non-experience-based information may be more useful, but there will definitely be circumstances in which experience trumps research. In a sense, the common law system may be viewed as an inductive, as opposed to deductive, method for determining social policy. It dates back as far as the Battle of Hastings in 1066.
So, we can envision the common law process—the process of accreting, and then according respect to, decisional experience—as a kind of evolutionary process. It is an experimental process in which principles may be announced and evaluated over time.
The main question that we must ask of this type of process is whether its discriminating mechanism is a good one or not: does it recognize error and correct it?
The comparison to evolution depends on the quality of the selection mechanism. Darwinian evolution entails the survival of the fittest. We do not really have a theory of “survival of the best rules”—we even lack consensus on what would be “best.” However, reasonable people might expect the crucible of time to tend towards revising “bad” precedents and respecting “good” ones. Judge Richard Posner famously argued in 1972 that the common law’s discriminating principle was efficiency. While this has been debated inconclusively, it is to be hoped that judges would tend toward choosing the principles that they think are best for society, and this choice would certainly have something to do with efficiency.
In summary, precedent is powerful because sensible consistency is good, because it relies on earlier analysis, saving time and energy, because it is supported by the principle of conservatism, and because it may be supported by consensus or acquiescence. These rationales are often applicable outside the legal system as well. Thus, an argument that emphasizes the support of precedent may be very powerful indeed.
Consistency-based reasoning is everywhere, and so these arguments are relevant in all areas of life. In business, two employees might argue that they should get similar raises. Good human resources practice suggests that consistency of treatment is important, so it is necessary to determine the ratio decidendi for a differential raise. In fact, the very concept of “reasonableness” of treatment requires that we have a ratio decidendi—a reason—for treating two people differently in any situation. Sensible consistency is often an indicator of fairness and objectivity. Consider teachers grading papers or parents dealing with their children. It is good to be, and to be seen to be, consistent.
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The Tools of Argument: How the Best Lawyers Think, Argue, and Win by Professor Joel Trachtman provides a wealth of practical legal knowledge in a concise and readable form. A great book for summer enrichment, The Tools of Argument, provides some of the most valuable information that students will gain in the study of law. It does so through a unique ‘critical thinking’ perspective that enhances students’ learning across the 3-year curriculum, while helping them confidently create winning arguments to engage professors and peers.
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