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After a Century of Waiting, We're Finally Getting a Treatise on Judicial Precedent

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By Casey C. Sullivan, Esq. on November 29, 2016 5:57 AM

Here's something a bit unprecedented: 12 distinguished appellate judges have come together with Bryan Garner to release a "hornbook-style" treatise on the doctrine of judicial precedent. And it's the first such publication in over a century.

Published by Thomson Reuters, the new book covers nine major topics, over 93 sections, surveying how prior judicial decisions influence later ones. (Disclosure: Thomson Reuters is FindLaw's parent company.) It is, as the publisher describes it, an attempt to be "theoretically sound, historically illuminating, and relentlessly practical."

Hundreds of Years, 800 Pages, 13 Authors, One Book

The text, "The Law of Judicial Precedent," features a truly distinguished list of authors. There is, of course, Bryan Garner, one of the leading names on legal writing, who worked as both editor and author. He's joined by a dozen celebrated judges. Just take a look at the other authors:

Hon. Carlos Bea, of the Ninth Circuit
Hon. Rebecca White Berch, of the Arizona Supreme Court
Hon. Neil M. Gorsuch, of the Tenth Circuit
Hon. Harris L Hartz, of the Tenth Circuit
Hon. Nathan L. Hecht, of the Texas Supreme Court
Hon. Brett M. Kavanaugh, of the D.C. Circuit
Hon. Alex Kozinski, of the Ninth Circuit
Hon. Sandra L. Lynch, of the First Circuit
Hon. William H. Pryor Jr., of the Eleventh Circuit
Hon. Thomas M. Reavley, of the Fifth Circuit
Hon. Jeffrey S. Sutton, of the Sixth Circuit
Hon. Diane Wood, of the Seventh Circuit

All together, these authors survey 2,500 cases and hundreds of years of law, all to help answer the question of "how and when do judges decide whether to follow a precedent or to distinguish it?"

That is, of course, no easy question to answer. As the text's epilogue notes, "the law of judicial precedent is a dizzying matrix of doctrines and subdoctrines." But if you need to make sense of that matrix, "The Law of Judicial Precedence" is a good place to start. It includes everything from horizontal vs. vertical precedents, to the "practicalities of stare decisis," to the law of the case, and even the precedential effects of arbitral decisions.

It is the first treatise on precedent in a century, and thorough enough that you won't need another for at least 100 more years.

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