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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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The Golden Rule

The Golden Rule

(p.79) The Golden Rule 3
The Power of Precedent

Michael J. Gerhardt (Contributor Webpage)

Oxford University Press

This chapter examines the multiple factors (ignored by most social scientists and legal scholars) limiting the path dependency of precedent—or the extent to which precedent forecloses or mandates outcomes—in constitutional law. These factors help to explain an essential dynamic in constitutional law, the golden rule of precedent: justices and other constitutional actors must demonstrate respect for the precedent of others or risk having others not respect theirs. The golden rule of precedent explains why precedent generally may matter in constitutional law but particular precedents may not constrain constitutional decision making very much.

Keywords:   precedent, constitutional law, Supreme Court, path dependency

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