Academic

Legal Theory Bookworm

By Lawrence Solum

The Legal Theory Bookworm recommends The Power of Precedent by Michael J. Gerhardt.  Here is a description:

The role that precedent plays in constitutional decision-making is a perennially divisive subject among legal scholars and political scientists. The debate rages over both empirical and normative aspects of the issue: to what extent are the Supreme Court and other constitutional actors constrained by precedent? To what extent should they be? The disagreements extend even to the meaning of precedent itself: does precedent consist of merely a prior holding or ruling? Or does it include the reasoning underlying the judgment? Taking up a topic long overdue for comprehensive treatment, Gerhardt provides the first book-length analysis of precedent by a legal scholar in several decades. Gerhardt clearly outlines the major issues in the ongoing debates about the significance of precedence, and offers his own novel theory for understanding the institutional power of precedence as a source of constraint on the constitutional decision-making of the Court, the presidency, and the Congress.

And from the reviews:

"To seek a 'solution' to the problem of precedent is probably like trying to square a circle. Whether or not one agrees with Michael Gerhardt's particular solution, all readers will find themselves illuminated by Gerhardt's consistently interesting arguments (and the data on which they are built) and the insights they throw on the actual operation of the United States Supreme Court and its justices."--Sanford Levinson, author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)

"Michael Gerhardt's sophisticated and subtle book is the definitive treatment of how precedent really works in constitutional law. It should be the starting point for all future discussions of this important issue."--David Strauss, Gerald Ratner Distinguished Service Professor of Law, The University of Chicago Law School

"When the subject is precedent, social scientists and legal academics often talk past each other. Gerhardt takes the time to listen. The result is a sophisticated yet sensible and accessible account of the role precedent plays in judicial decisions. But more than that, it is an account that no side in the debate can afford to ignore because Gerhardt ignores no side. At long last, let the conversation begin."--Lee Epstein, Beatrice Kuhn Professor of Law and Professor of Political Science, Northwestern University

Full post as published by Legal Theory Blog on February 17, 2008 (boomark / email).