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Judicial precedent is one of the foundations of the American legal system. That's why law students spend years reading old cases, why you pass hours researching past opinions on Westlaw, why you search for ways to apply or differentiate cases. Understanding precedent, and the role it plays in the law, is key to becoming a good lawyer. Yet, the doctrine of precedent is rarely addressed directly and systematically in law school curriculum.
Despite precedent's prominence, more than a century has passed since the last hornbook-style treatise on the doctrine. That is, until now. Bryan Garner, along with 12 distinguished appellate judges, recently published "The Law of Judicial Precedent," a survey of centuries of law and thousands of cases. Garner recently spoke with FindLaw about the book and the role of precedent in the law. Here are some highlights.
A hundred years and then some have passed since the last similar work on precedent, and Garner and his co-authors, having set out to survey the doctrine, soon discovered why. In his interview with FindLaw, part of FindLaw's new Law Students section, Garner notes that it took three years to complete the new treatise.
"My coauthors and I discovered," Garner says, "why a thorough text has been lacking: the subject is devilishly hard to explain."
Garner acted as both author and editor for the treatise, but he had a dozen major legal minds helping along. Garner's coauthors include the Ninth Circuit's Alex Kozinski, the Seventh Circuit's Diane Wood, and two judges who could become Supreme Court justices. Coauthors Neil Gorsuch, of the Tenth Circuit, and William Pryor, of the Eleventh, are both on the short-list of potential Supreme Court nominees.
What role should precedent play in shaping judges' decisions? Precedent, after all, doesn't completely get rid of discretion. Judges may follow precedents strictly, or they may seek to distinguish them. Some judges will distinguish more than others.
"So-called 'willful judges,'" Garner says, "who impose their own views on the law, will grab more discretion than others."
It's not a practice Garner countenances. "My coauthors and I believe," Garner says, "that good judging requires not being willful; it involves self-abnegation."
When asked what advice he would give to second- and third-year law students, Garner's guidance was direct. "Read critically," he said.
"Try to understand how your professors discuss and analyze cases. After class, talk to them about case-reading techniques," in order to pick up "nuanced know-how."
"Oh, and read 'The Law of Judicial Precedent,'" he concluded.
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