medium · LSAT Logical Reasoning
Legal commentator: Defenders of judicial precedent often claim that the doctrine carries built-in safeguards against entrenching mistakes. They point to three: courts may overrule a bad precedent, legislatures may pass statutes that supersede it, and judges may 'distinguish' it away in later cases. Yet each safeguard falters in practice. Overruling is hemmed in by the very respect for settled law that the doctrine demands; legislative correction stalls when the harmed parties lack political clout; and distinguishing breeds a tangle of exceptions that obscures the law rather than clarifying it.
The commentator's discussion of the three safeguards functions primarily to
- cast doubt on how well the corrective devices invoked by precedent's defenders actually work in practice.
- propose an entirely alternative legal system that would dispense with the doctrine of precedent altogether.
- trace the gradual historical development of constitutional doctrine across the span of several past centuries.
- argue that the long-run predictability of the law matters considerably more than its day-to-day clarity does.
- show that judicial precedent is wholly and permanently incapable of ever correcting any of its own errors at all.
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