Crafting Precedent

By Associate Professor Richard Chen

Associate Professor Rich ChenThis month, the Harvard Law Review published a book review titled “Crafting Precedent,” which I coauthored with Judge Paul Watford, U.S. Court of Appeals for the Ninth Circuit, and Marco Basile. We reviewed a recently published treatise called The Law of Judicial Precedent, by Bryan Garner, a nationally known expert on legal writing, and a group of twelve distinguished appellate judges. Among his coauthors were representatives of several federal circuit courts, two state supreme court justices, and the U.S. Supreme Court’s newest member, Justice Neil Gorsuch. Both Marco and I had previously served as law clerks to Judge Watford, and our experience working with precedent in chambers informed our thinking about how the treatise’s insights could be valuable to lawyers and judges.

The last time anyone attempted to synthesize the law of judicial precedent into a treatise or hornbook was in 1912, which is surprising given the topic’s immense importance to the practice of law. Moreover, most scholarly attention has focused on theoretical questions such as whether and why courts should defer to earlier decisions. The Law of Judicial Precedent, by contrast, focuses on identifying and elaborating the principles that govern how precedent operates in practice. Over the course of 900-plus pages, the treatise distills the law of judicial precedent into ninety-three “blackletter” principles. The first part of our review provides a roadmap to these principles, to give readers a sense of how the treatise may serve as a useful resource.

In the second part of the review, we offer our own contribution to the literature on judicial precedent. While the treatise focuses primarily on the reader’s task of interpreting and applying precedent, we flip that perspective to ask how authoring courts can draft more effective precedent. In other words, the treatise’s insights into the difficulties of interpreting precedent shed light on how the process can be improved at the front end, when the precedent is written.  The treatise shows how the interpretation process functions as a dialogue between the earlier and later court. Although the later court gets the final say on what an earlier decision means, the authoring court can take steps to reduce confusion about its reasoning.

Our review suggests ways that opinions could be clearer in three particular dimensions to address challenges in the interpretation process identified by the treatise:

  • First, authoring courts could be more precise about the exact question they are answering in order to reduce confusion about the scope of what a particular opinion is resolving.
  • Second, authoring courts could more clearly articulate the governing law that they are applying to help later courts accurately discern the case’s holding.
  • Third, authoring courts could more clearly describe the facts that are material to their decision to help later courts determine whether the case should be deemed analogous or distinguishable.

Our focuBook Cover for The Law of Judicial Precedents in these three sections is on how courts can avoid unintentional lack of clarity. We do not suggest that authoring courts should attempt to maximize their influence by always writing broadly or resolving as much as possible. Indeed, there are times when it makes sense for authoring courts to decide cases narrowly or on vaguer grounds in order to preserve the flexibility of future courts to account for unforeseen circumstances or simply to allow the law to develop more gradually. Our review concludes with some brief thoughts on how authoring courts should approach this tradeoff between preserving flexibility, on the one hand, and offering needed guidance to future courts and litigants, on the other.

We hope our book review will serve as a useful introduction to The Law of Judicial Precedent, which we describe in the review as “the most comprehensive and authoritative text to date on the application and authority of judicial precedent in American courts.” We also hope our review will itself be a helpful resource for judges and law clerks on ways to improve the opinion-writing process from the standpoint of crafting effective precedent.