The Path Dependence of the Law
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Description
Any legal system that relies on precedent necessarily confronts conflicting objectives. Precedent constrains decision makers (judges and juries) who might otherwise have idiosyncratic preferences and permits the law's subjects to predict the consequences of their conduct. But precedent simultaneously limits the capacity of decision makers to adjust to new conditions and, arguably, discourages detection of those changes by reducing the need for judges to justify their decisions, as long as they discern no novelty in the case they are deciding. This tension between the conflicting characteristics of a precedential system both explains and disputes a major theme of The Path of the Law. Much of that essay portrays tradition in the law as worthy of ridicule. While the villain is often legislators rather than judges, the phrases that Holmes employs to critique the use of tradition as a basis for decision (“the pitfall of antiquarianism” by which “tradition . . . overrides rational policy”) suggest that, in the adjudicative context, reliance on precedent does not simply frustrate legal evolution but subjects legal doctrine to misapplication and inappropriate extension. This view, however, appears distorted once one considers a broader range of Holmes's writings as commentator and judge. Notwithstanding the strong language in his celebrated essay, his earlier lectures on the common law and his judicial opinions reveal a more measured and more complex role for precedent in the development of legal doctrine. At times, judicial invocation of tradition, embodied in the practice of following precedent without further investigation into the propriety of the preexisting rule, played the role of scoundrel, but at times Holmes himself invoked tradition as a substitute for ad hoc analysis—the very sin against which The Path of the Law admonishes others. My objective here is not to chide Holmes for inconsistency, certainly not for drafting opinions at odds with an essay written in the early stage of his judicial career. Taking The Path of the Law in isolation seems a dangerous strategy in evaluating Holmes's beliefs over his lifetime. Moreover, if precedential systems generate the conflicting values that I have mentioned, then there may be times when each of the values trumps the other, so that apparent inconsistencies may simply reflect the reality that a factor that dominated in one context was subordinated in another. Indeed, that is precisely the result implicit in Holmes's conception of economic reasoning in the law, which requires balancing the costs of tradition in any case against its benefits. On that understanding, whether precedent is ultimately overutilized or underutilized depends on the ease with which judges distinguish “bad” precedent from “good” and weigh precedents as applied in a given case. Thus, rather than simply contrasting Holmes's hostile reaction to and hospitable use of precedent, my objective here is to explore the claim implicit in The Path of the Law about the hold that tradition has on law's content. A strong reading of Holmes's antipathy toward tradition would be that substantive doctrine, once established, becomes locked in or frozen. Legal doctrines that would have been adopted were decisionmakers writing on a clean slate are instead rejected or simply not considered. Law, on this theory, does not depend on a rational process directed at implementing a particular social, political, or economic view. Instead, it reflects contingencies that arose for reasons unrelated to current needs but that, once established, determine subsequent developments. Critically, Holmes implies, tradition does not simply displace reason but does so “after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning”. The claim that law is path dependent, in the sense that prior doctrine determines the content of current doctrine, may be noncontroversial. Holmes's critique goes farther than a positive claim, however, and asserts that legal doctrines rooted solely in tradition are undesirable. At first glance, the Holmesian objection strikes one as odd. First, it seems incongruous in light of Holmes's insistence that the study of law consists of prediction. One might imagine that binding litigants to previously adopted positions would enhance rather than diminish the predictive character of legal study. What makes prediction possible is the ability to rely on future adherence to rules previously laid down, and that practice implicitly recommends following tradition. (This is not to deny Judge Richard A. Posner's claim that precedents are not the law, under the prediction theory; the law is only the prediction about what courts will say when a case comes before them. Posner's interpretation suggests that a Holmesian legal system could evolve to meet the necessities of the particular time, as long as one trying to discern “the law” could determine when the need for certainty was overridden by the absence of fit between the preexisting rule and current social preferences. But even this understanding of the prediction theory of law admits that precedents, and hence traditions, “are essential inputs into the predictive process,” in part because we expect judges to begin the analysis of current cases with attention to relevant precedents.)
Source Publication
The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr.
Source Editors/Authors
Steven J. Burton
Publication Date
2000
Recommended Citation
Gillette, Clayton P., "The Path Dependence of the Law" (2000). Faculty Chapters. 732.
https://gretchen.law.nyu.edu/fac-chapt/732
