Journal article
Precedent and fairness
- Abstract:
- Courts in common law systems decide cases as they decided like cases in the past—even if they believe they decided those past cases wrongly. What, if anything, justifies this practice? I defend two main claims. The first is that fairness favors treating like cases alike if that means treating them correctly. The second is that, in general, a court is as likely to decide an instant case correctly as it was to decide a previous and like case correctly. Together, these claims tell us that departing from and following precedent are equally likely to yield a correct decision, whereas following precedent may also yield a fair decision. Adhering to precedent is the dominant alternative, as a result. Fairness therefore justifies the practice of precedent. While this conclusion is not original, my argument for it is.
- Publication status:
- Published
- Peer review status:
- Peer reviewed
Actions
Access Document
- Files:
-
-
(Preview, Version of record, pdf, 182.5KB, Terms of use)
-
- Publisher copy:
- 10.1017/S1352325223000174
Authors
- Publisher:
- Cambridge University Press
- Journal:
- Legal Theory More from this journal
- Volume:
- 29
- Issue:
- 3
- Pages:
- 185-201
- Publication date:
- 2023-10-24
- Acceptance date:
- 2023-07-13
- DOI:
- EISSN:
-
1469-8048
- ISSN:
-
1352-3252
- Language:
-
English
- Keywords:
- Pubs id:
-
1492417
- Local pid:
-
pubs:1492417
- Deposit date:
-
2023-07-13
Terms of use
- Copyright holder:
- Adam Perry
- Copyright date:
- 2023
- Rights statement:
- Copyright © The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial licence (http://creativecommons.org/licenses/by-nc/4.0), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original article is properly cited. The written permission of Cambridge University Press must be obtained prior to any commercial use.
If you are the owner of this record, you can report an update to it here: Report update to this record