Michael Gentithes has posted Precedent, Humility, and Justice (Texas Weleyan Law Review, Forthcoming) on SSRN. Here is the abstract: When resolving cases, appellate courts must quickly decide how much respect to give precedent decisions and the analytical approaches they embody. While the logical and philosophical justifications for reliance on precedent have been frequent topics in jurisprudential studies, this Article takes a unique perspective that will reinforce the role of precedent by emphasizing its necessary pride of place in any outcome that can be considered substantively just. Arguing against more decisionist models of adjudication and building upon prior pragmatic and Dworkinian justifications for the special role of precedent, this Article suggests first that appellate judges must approach their profession with humility to achieve substantively just results. After more fully defining the partially constitutive relationship between judicial humility and justice, the Article then contends that such humility necessarily implies respect for precedent. This respect for precedent has both a cross-generational dimension, in light of the refinement of the law over time, and a horizontal dimension, in light of the collegiality required for appellate judges to agreeably resolve the cases on their dockets. Precedent is therefore vital in all cases, even those decided on constitutional grounds. Such a humble, precedent-based approach to adjudication also has several implications for the process of appellate decision-making.
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