Vertical precedents in formal models of precedential constraint

Abstract

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior courtoverruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. How do common law precedents constrain later courts?According to what Horty (2015) calls the standard model, a precedent court constrains later courts by announcing a rule, which later courts are then required to respect. 1 But respecting a rule, on this view, does not require applying the rule to every dispute that falls within its scope. Rather, in certain circumstances, a later court can avoid an applicable precedent rule by modifying it so that it no longer applies. The standard model holds that a court is equally free to modify a precedent of its own and a precedent of a superior court-like many formal models of common law reasoning, once the power to overrule is set aside, it does not differentiate

Two factor-based models of precedential constraint: a comparison and proposal

“…For illustrative discussions of persuasive authority in legal theory seeBronough (1987) Lamond (2010), and Schauer (2008.9 This distinction is used, quite plausibly, by GabrielBroughton (2019) in his modification of Horty's model of precedent to account for the distinction between vertical and horizontal precedent in U.S. courts. I do not intend to present my account as a rival to Broughton's.…”