What Do We Mean by Precedent? Empirical Evidence of Ordinary Usage

Abstract

Legal theorists disagree about the nature of precedent. In a purely descriptive sense, what does it mean to say that a particular case sets a precedent? Does it (a) establish a rule that is deductively applied to subsequent cases (the deductive view), or (b) trace a relevant dimension of factual resemblance between the source case and subsequent cases by analogy (the analogical view)? To answer these questions, we conducted a series of three studies on the matter. In Study 1, we documented people’s tendency to adopt the analogical interpretation over the deductive one. Theorists have also debated whether, normatively, judges ought to apply precedents deductively or analogically—with some arguing that the analogical view affords excessive discretionary power. Yet, the results of Studies 2 and 3 undermine this claim: While participants did indeed infer more specific rules than analogical features (Study 2), the generality of analogical interpretation was not driven by the opportunity to treat prior cases as precedents (Study 3). These findings suggest that the analogical view is prevalent among the folk, while undermining some of the normative arguments against it.