The (In)evitability of Precedent

Abstract

Drawing mainly from the common law tradition, the article identifies the notion and the normative value of precedent, summarizes its historical development, and distinguishes between its application in the fields of case law, constitutional law, and statutory legislation. It then ponders the pros and cons of precedent-based adjudication and the institutional and ethical requisites for its application. It finally considers the recent phenomena of arbitration courts and para-judicial institutions that patrol the web, which seem to resist the logic and ramifications of precedent-bound adjudication.