Precedent and Judicial Power After the Founding

Abstract

A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit's noncitation rule violates Article III of the United States Constitution. This Article affirms the view that judicial power includes a doctrine of precedent, without relying solely upon an originalist interpretation of ArticleIII. This approach identifies a consistent "core idea" of precedent that courts must consider how a similar case was decided in the past, even where there are varying ideas about the binding nature of that precedent. A long-standing tradition has viewed precedent as a necessary starting point for judicial decision. When a court departs from this core idea, it violates the essential function of the judiciary to treat like cases alike or explain the difference.