The twists and turns of precedent

Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedentbrought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract:

Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will an intermediate court follow rulings of a sister court? What sources can advocates cite? (or: why can advocates cite secondary sources but not unpublished opinions?) Are fewer cases considered to be cases of first impression, since the cumulative body of precedent is so large?

This essay examines each of these questions. It is accessible to beginning students, first wrestling with the questions, but should also interest more experienced researchers.

Before you say to yourself, “Yeah, like I’ve got time to read a lengthy, impenetrable, egghead article,” take it from me, the piece is fairly short (about 13 pages, with about a third of it in the footnotes) and the abstract is correct that the article is “accessible.” For those of you curious about which of Shakespeare’s plays have been cited the most in appellate briefs (not always to good effect), Whisner has done that homework for you and put the results in a table in her article (#1 cited Shakespeare Play: Hamlet).

I especially enjoyed her discussion about prohibitions against the citation of unpublished opinions. (Long-time readers may remember that the rule against citation of unpublished opinions generated a lawsuit against the California Supreme Court a few years ago and that there is one organization very agitated about the rule.) She asks some good questions about the rule. Has technology made the rationale for the rule obsolete? Why is it alright to cite Shakespeare and Dr. Seuss, but not alright to cite unpublished decisions? The paper is well worth a read.