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The Power of Precedent$
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Michael J. Gerhardt

Print publication date: 2008

Print ISBN-13: 9780195150506

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780195150506.001.0001

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Theories of Precedent

Theories of Precedent

Chapter:
(p.47) Theories of Precedent 2
Source:
The Power of Precedent
Author(s):

Michael J. Gerhardt (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195150506.003.0003

This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.

Keywords:   Precedent, supreme court, stare decisis, constitutional law, attitudinalism, rational choice theory

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