Anti-Precedent originally known as ". . . Luttig . . . "

RJLipkin at aol.com RJLipkin at aol.com
Thu Dec 22 14:22:24 PST 2005


In my view, the  logical point is minimalist. To get from the logical point  
to robust commitments to precedent is a non sequitur. Jim's  original proposal 
"No precedential value will be permitted to be accorded in any  subsequent 
litigation" must be considered an overstatement especially if he  accepts my 
point as a logical point. Of course, all depends on  what "[n]o precedential 
value" means. All practical  reasoning--legal or not--must begin in the present.  
And the present  includes past decisions which defines the framework for the 
present  decision. If "no precedential value" means that past decisions 
generally  must not be dispositive, I agree.  If it means, that the past decisions  
should not carry significant weight, in most circumstances I  agree. (Although 
in the highly circumscribed context of adjudication,  I wonder if Jim's 
conception of anti-precedent requires starting from  scratch with every new case.)  
If it means the prior decision should  be overlooked, I protest stridently.  
And that's how I understood,  incorrectly or not, Jim's original point.
 
        I also wonder whether Jim's  conception of anti-precedent applies 
equally to procedural and substantive  aspects of adjudication, and whether Jim's 
remarks about time (past,  present, and future) renders originalism 
incoherent.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
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