A Social Theory of Legal Precedent (forthcoming)

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Why do judges commonly predicate their own decisions on earlier decisions authored by others? What makes those otherwise discrete and separate decisions of the past nonetheless hang together and form a powerful system of reference to subsequent cases? While legal justification for legal precedent remains remarkably limited, a leading account attributes this ostensibly puzzling authority to its efficiency-enhancing properties. However, conservation of judicial resources can hardly motivate judges to abide by past decisions. Moreover, the consequentialist nature of the rationalist explanation tends to exaggerate the predictive force of legal precedent. No legal precedent guarantees a particular court ruling, while an overarching logic of judicial efficiency might allude in such direction. In an effort to fill such analytical gap, this Article reconstructs legal precedent as a socio-anthropological phenomenon, i.e., “ritual.” The central claim of this Article is twofold. First, legal precedent is explicable in cultural terms, such as symbol and language; second, legal precedent holds a structural-systematic value as it exists for its own sake. This novel approach to legal precedent, this Article argues, can enrich mindsets of legal scholars and practitioners and help them expand their discursive horizons, so as to produce globally relevant decisions. This Article applies the new framework to the jurisprudence of the World Trade Organization (WTO) in order to reconfigure the boundaries of legal precedent in a global dimension.