Stare decisis and the rule of law: A layered approach

Michigan Law Review

Volumn 111, Issue 1, 2012, Pages 1-32

  Waldron, Jeremy ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84867159254     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (173)

1. Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 572-73 (1987) (footnote omitted).
2. Shakespeare has Portia respond thus to Bassanio's plea to set aside Shylock's bond: "It must not be. There is no power in Venice/Can alter a decree established: /'Twill be recorded for a precedent,/And many an error by the same example/Will rush into the state: It cannot be." William Shakespeare, The Merchant of Venice act 4, sc. 1. For discussions, see.
3. Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 Yale L.J. 2031, 2033 (1996).
4. Kenji Yoshino, The Lawyer of Belmont, 9 Yale J.L. & Human. 183, 209-10 n.134 (1997).
5. For general surveys, see Tom Bingham, The Rule of Law (2010).
6. Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004).
7. For good general surveys, see Neil Duxbury, The Nature and Authority of Precedent (2008).
8. J. Gerhardt, The Power of Precedent (2008).
9. This outline of what the rule of law requires is adapted from A.V. Dicey, Introduction to the Study of the Law of the Constitution 110-21 (8th ed., Liberty Classics 1982).
10. Edmund Burke, Reflections on the Revolution in France 87 (L.G. Mitchell ed., Oxford Univ. Press 1993) (1790).
11. The same can be said about arguments (also Burkean in character) that stare decisis helps preserve our traditions and the character of our community.
12. See Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029 (1990).
13. See, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 744-52 (1988) (system legitimacy and agenda limitation).
14. Schauer, supra note 1, at 599-600 (decisional efficiency).
15. See 1 F.A. Hayek, Law, Legislation and Liberty 94-123 (1973).
16. See, e.g., Bingham, supra note 3.
17. John Finnis, Natural Law and Natural Rights 270-73 (1980).
18. Joseph Raz, The Rule of Law and Its Virtue, in The Authority of Law 210 (2d ed. 2009).
19. There is quite a good discussion in Neil MacCormick, Rhetoric and the Rule of Law (2005), where MacCormick says that "[f]aithfulness to the Rule of Law calls for avoiding any frivolous variation in the pattern of decision-making from one judge or court to another."
20. Id. at 143. (I have drawn on this discussion at various points.
21. See infra notes 40, 57, 63.) There is also a chapter entitled "Towards a Rule of Law Ideology for Precedents".
22. Raimo Siltala, A Theory of Precedent 151-79 (2000). Unfortunately, Siltala's book is not an easy read, but it does give a good account in Fullerian terms of the rule-of-law difficulties with the system of precedent.
23. Id. at 165-68.
24. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
25. Roe v. Wade, 410 U.S. 113 (1973). Roe has been sustained at least once before on the ground of stare decisis in a way that made a connection with the rule of law.
26. See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 419-20 (1983) ("[A]rguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm Roe v. Wade." (footnote omitted)).
27. Casey, 505 U.S. at 854.
28. Id. at 866, 868.
29. I am also not going to consider the justification set out in 1787 by Alexander Hamilton: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" The Federalist No. 78, at 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
30. That too sounds as though it presupposes stare decisis. Or, if not, it sounds as though we have had to invent stare decisis in order to furnish judges with more law to be faithful to.
31. See Casey, 505 U.S. at 866.
32. See Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994).
33. Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev. 731, 788-96 (2010).
34. That opposition has revealed itself concretely in controversy regarding the constitutional status of the abortion decisions.
35. See, e.g., Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535 (2000).
36. Richard H. Jr. Fallon, Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570 (2001) (responding to Paulsen).
37. U.S. Const. art. VI, cl. 2.
38. This argument is particularly powerful if the justification for following precedent is mainly pragmatic (i.e., decisional efficiency or the commercial advantages of predictability).
39. Cf. Monaghan, supra note 7, at 748 ("Precedent is, of course, part of our understanding of what law is.").
40. Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921).
41. Fallon, supra note 17, at 579.
42. Fallon goes on to say the following: "[I]t is settled that the judicial power to resolve cases encompasses a power to invest judgments with 'finality' And there can be little doubt that the Constitution makes Supreme Court precedents binding on lower courts. If higher court precedents bind lower courts, there is no structural anomaly in the view that judicial precedents also enjoy limited constitutional authority in the courts that rendered them."
43. Id. at 581 (footnote omitted).
44. See John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 22 (2d ed. 1985) ("[S]tare decisis... [is] rejected by the civil law tradition."). I am grateful to Michael P. Van Alstine for this citation. Alstine himself remarks that "the vast majority of states that compose the international system do not follow stare decisis."
45. Michael P. Van Alstine, Stare Decisis and Foreign Affairs, 61 Duke L.J. 941, 989 (2012).
46. See Aristotle, The Politics bk. III, ch. 16 (Stephen Everson ed., Jonathan Barnes trans., Cambridge Univ. Press 1988) ("[A] man may be a safer ruler than the written law, but not safer than the customary law.").
47. Hayek, supra note 8, at 72-73 (denigrating legislation as a marginal and problematic kind of law).
48. For the distinction between central and marginal cases of law and its significance in jurisprudence, see Finnis, supra note 9, at 9-16.
49. F.A. Hayek, The Constitution of Liberty 142, 153 (1960).
50. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992).
51. See, e.g., Duxbury, supra note 4, at 160-62.
52. Cf. id. at 164 ("Reliance does not justify precedent-following, but... emerges out of the fact that precedent-following is already the norm.").
53. Jeremy Bentham, Of Laws in General 153 (H.L.A. Hart ed., Athlone Press 1970).
54. Id. at 184.
55. Id.
56. see also H.L.A. Hart, The Concept of Law 125 (2d ed. 1994).
57. See Gerald J. Postema, Bentham and the Common Law Tradition 192-97, 275-78 (1986).
58. Jeremy Waldron, Custom Redeemed by Statute, 51 Current Legal Probs. 93 (1998) (U.K.).
59. I don't mean that there is no point to a judge articulating reasons for her decisions unless she expects others to follow her ratio decidendi.
60. There are other reasons why we value judicial reason-giving. Lon L. Fuller says that the requirement that a judge give reasons is not just to encourage the judge to be thoughtful, but because without such a requirement, the parties would have to "take it on faith that their [reasoned] participation in the decision[making] has been real, [and] that the [court] has in fact understood and taken into account their... arguments."
61. Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 388 (1978).
62. It is also a matter of accountability: we want the judge to explain the grounds of her decision to the public, who might otherwise have doubts about the legitimacy of what she has done.
63. I have argued this in several places.
64. See Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 54-61 (2008).
65. Jeremy Waldron, The Rule of Law and the Importance of Procedure, in Getting to the Rule of Law 3, 18-23 (James E. Fleming ed., 2011).
66. Jeremy Waldron, Thoughtfulness and the Rule of Law, Brit. Acad. Rev., July 2011, at 1, 7-8 (U.K.).
67. In this respect, I am strongly influenced by Dworkin's work on theoretical disagreement in law.
68. See Ronald Dworkin, Law's Empire 31-43 (1986).
69. See Dworkin, supra note 35, at 130, 157-58.
70. Bentham, supra note 30, at 187.
71. For this indeterminacy in constitutional law, see Monaghan, supra note 7, at 743 ("Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates with the randomness of a lightning bolt: on occasion it may strike, but when and where can be known only after the fact.").
72. Scholars in the Critical Legal Studies movement have always acknowledged this, even in the midst of their arguments about indeterminacy.
73. See, e.g., Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 20 (1984) ("It is perfectly possible for there to be predictable patterns of behavior and decisionmaking even though the arguments advanced to justify the choices do not determine the outcomes. Saying that decisionmaking is both indeterminate and nonarbitrary simply means that we can explain judicial decisions only by reference to criteria outside the scope of the judge's formal justifications.").
74. E.g., Larry Alexander, Constrained by Precedent, 63 S. Cal. L. Rev. 1, 4 (1989) ("I shall focus on those situations, however frequent or rare, in which a subsequent court believes that, though a previous case was decided incorrectly, it must, nevertheless, through operation of the practice of precedent following, decide the case confronting it in a manner that it otherwise believes is incorrect. In short, I shall be dealing with constraint by incorrectly decided precedents [W]hen I speak of precedents that are 'incorrect' in the eyes of the subsequent court, I am referring to cases of first impression, cases that were directly governed by principles of political morality... and in which those principles... were misapplied (in the view of the subsequent court).").
75. For insistence on the same point, see MacCormick, supra note 10, at 144 ("[I]t must seem doubtful whether any adequate understanding of precedent... could proceed in the absence of an adequate theory of legal justification. Only by knowing the kinds of justifying reasons which are proper to judicial decisions can we know the possible elements of judicial precedents. Surprisingly, a great deal of writing about precedent has proceeded without full regard to the prerequisites of an articulate theory of legal justification.").
76. Henry M. JR. Hart, & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 569 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
77. For this citation I am obliged to Larry Alexander & Emily Sherwin, Judges as Rule Makers, in Common Law Theory 27, 41 n.41 (Douglas E. Edlin ed., 2007).
78. See Dworkin, supra note 35, at 225-75.
79. Cf. John Gardner, Some Types of Law, in Common Law Theory, supra note 41, at 51, 66-67 ("Typically judges set about adding to case law by applying existing law [T]hey argue that a certain ruling, even if not required by existing law, would be consistent with existing law and a sound development of existing law. They proceed in this way because they have a professional moral duty (usually crystallized in their oath of office) to keep faith with whatever existing law there is on any subject on which they may make a ruling.").
80. Stare decisis gets underway when law is already a going concern. Even for analytic convenience, we must not imagine the first step in the establishment of a precedent as being taken by JP in a state of nature.
81. I think this is the position defended in Ronald Dworkin, Hart's Postscript and the Character of Political Philosophy, 24 Oxford J. Legal Stud. 1 (2004) (U.K.), especially in the long section on "Legality,"
82. see id. at 23-37.
83. Joseph Raz insists that even judges are humans and that moral decisionmaking is the default mode of decisionmaking for them as it is for all of us.
84. Joseph Raz, Incorporation by Law, 10 Legal Theory 1, 14 (2004).
85. But for the difference between moral decisionmaking in one's own name and various forms of moral decisionmaking in the name of a whole society.
86. see Jeremy Waldron, Judges as Moral Reasoners, 7 Int'l J. Const. L. 2 (2009).
87. I am invoking a view of the kind that Dworkin sets out, not necessarily down to every last detail.
88. Dworkin, supra note 35, at 256.
89. 2 John Austin, Lectures on Jurisprudence 634 (Robert Campbell ed., 5th ed. 1911) (1861) ("[T]he childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges.").
90. One other rather technical point about Dworkin's work: I am assuming that his account of law as interpretation is not itself a theory of stare decisis (so that I am not smuggling in such a theory at this stage).
91. His account of law as interpretation is a general theory about how to solve legal problems, how to interrogate legal materials, and how to determine what the law says on some topic even when it does not speak clearly. I am bolstered in this assumption by the fact that at various points in Law's Empire, Dworkin seems to treat stare decisis as a separate issue that he has mostly not discussed.
92. See, e.g., Dworkin, supra note 35, at 337, 401-02.
93. Law as interpretation is a way of dealing with precedents (as well as statutes and constitutional provisions). In its application to common law systems, it assumes that we are already committed to stare decisis. But it is somewhat complicated by Dworkin's suggestion that precedents have "gravitational force" as well as what he has called "enactment force."
94. See Ronald Dworkin, Taking Rights Seriously 111 (1977). I think the interpretive method is supposed to be (among other things) a way of accounting for the former. And it is complicated too by his suggestion that what stare decisis amounts to as a principle in a given legal system will itself be a matter of interpretation.
95. See Dworkin, supra note 35, at 24-26. I am not quite sure about these formulations, but I am confident that neither point introduces any circularity into my discussion.
96. A norm is "universalizable" if its application is dictated by general terms and not restricted to particular cases by the use of a proper name or any particular reference.
97. See R.M. Hare, Freedom and Reason 12 (1963) (propounding the idea of "universalizability"). An example of a non-universalizable norm might be a bill of attainder or a norm specifying that the interest of some particular person is to be given priority.
98. Also, please note that I use the term "norm" advisedly to include rules, standards, and principles. This raises some difficult issues. Part of me believes that it is a matter of judgment whether the general norm presented by JP as the basis of her decision in a case is more like a standard than a rule: it depends on the circumstances of the case and their relation to background doctrine. After all, some explicit doctrinal norms have a rule-like form while others have a standard-like form; why shouldn't that be true of the norms embodied in precedents also? For the distinction between rules and standards.
99. see Hart & Sacks, supra note 41, at 139-41. Stephen Perry has argued that the norm embodied in a precedent should always be understood as a principle.
100. Stephen R. Perry, Judicial Obligation, Precedent and the Common Law, 7 Oxford J. Legal Stud. 215, 235-36 (1987) (U.K.).
101. I don't think Perry's view necessarily conflicts with the first point I make in this footnote. Under the heading of "principle," Perry wants to pick up on the Dworkinian attribute of "weight" and the fact that the relevant norm does not have a canonical formulation. On the former point.
102. see Dworkin, supra note 50, at 26-28.
103. In my view, those two points could be granted and still there would be a matter of judgment whether the relevant "principle" was to be rule-like or standard-like. However, I suspect Perry disagrees; he thinks that the norms embodied in precedents (and principles generally) present their reasons transparently, whereas it is part of the idea of a rule that those reasons are opaque.
104. For more on this approach to the law, see Lawrence B. Solum, Equity and the Rule of Law, in The Rule of Law 120 (Ian Shapiro ed., 1994). The idea of phronesis or (as it is usually translated) practical wisdom is taken from Aristotle's virtue theory.
105. See Aristotle, The Nicomachean Ethics 105-10 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009.
106. It refers to the basis of a kind of insight or judgment that is closer to "know-how" in practical affairs than knowing the truth of some articulated proposition.
107. Dworkin, supra note 35, at 240-41.
108. Raz, supra note 9, at 213.
109. Hart, supra note 32, at 21.
110. cf. John Austin, The Province of Jurisprudence Determined 28-29 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832) ("To frame a system of duties for every individual of the community, were simply impossible: and if it were possible, it were utterly useless.").
111. Burke, supra note 6, at 59.
112. MacCormick insists that even the most particularistic decisionmaking always has a universalistic dimension: "The 'because' of justification is a universal nexus, in this sense: for a given act to be right because of a given feature, or set of features, of a situation, materially the same act must be right in all situations in which materially the same feature or features are present."
113. MacCormick, supra note 10, at 91.
114. Hayek, supra note 26, at 152-53.
115. Hayek defines law as "a 'once-and-for-all' command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time."
116. Id. at 131.
117. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
118. Id. at 1185.
119. Id.
120. There has always been a problem about prospectivity so far as creative judicial decisionmaking is concerning. Fresh judicial decisions in areas of law previously indeterminate are always somewhat retroactive so far as the particular litigants are concerned. But notice that JP would not avoid this by eschewing the formulation of a general rule. For a particularized decision would be in effect retroactively too, or it would suffer from some exactly similar vice. And remember too that, if there is a problem of retroactivity in judicial lawmaking, it is only a problem for the first pair of litigants; after that, the judge-made rule operates prospectively.
121. See MacCormick, supra note 10, at 91, for a similar view about generality: "This does not depend on any doctrine or practice of following precedents. On the contrary, the rationality of a system of precedents depends upon this fundamental property of normative justification" This is very important, and in this regard my view is pretty close to MacCormick's. But I am not sure whether this prior insistence on generality in MacCormick's work is anything much more than what I call infra in Part IV mere notional universalizability. What MacCormick says is, A justifiable decision of the legal dispute has to make a ruling on the issues in contention between the parties as to the relevancy of any proposition adduced as a proposition of law by either party or as to the interpretation of such a proposition A ruling of this kind must be logically universal or at least must be in terms which are reasonably universalizable.
122. Id. at 152-53.
123. I maintain that JP (and her court) has to also establish and give actual positive presence to the principle of her decision as a legal norm.
124. Cf. Immanuel Kant, The Metaphysics of Morals 106 (Mary Gregor ed. & trans., Cambridge Univ. Press 1996) (1797) ("Even if a civil society were to be dissolved... (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve").
125. At this stage, I assume for simplicity that JP and JS are on the same bench of the same court.
126. See Gerald Postema, Protestant Interpretation and Social Practices, 6 Law & Phil. 283, 283 (1987) (Neth.).
127. Remember that Dworkin's account of law as interpretation is not yet itself a theory of stare decisis.
128. See supra note 50.
129. See Hare, supra note 51.
130. See also supra note 51 for an explanation of "univeralizability."
131. In this respect, it is rather like the rigged generality that one finds in legislation that talks in "general" terms about any city "in the state which according to the last census had a population of more than 165,000 and less than 166,000."
132. See Lon L. Fuller, The Morality of Law 47 n.4 (1964).
133. Of course, that's not nothing.
134. See supra note 34.
135. See Hans Kelsen, General Theory of Law and State 144 (Anders Wedberg trans., 1945).
136. Joseph Raz, Law and Value in Adjudication, in The Authority of Law, supra note 9, at 180.
137. For more on the differences between judicial and other legislation, see Raz, supra, at 194-97.
138. Kelsen acknowledges this, writing that "[f]rom the dynamic point of view, the decision of the court represents an individual norm, which is created on the basis of a general norm" Kelsen, supra note 71, at 144.
139. Joseph Raz, Interpretation: Pluralism and Innovation, in Between Authority and Interpretation 299, 320 (2009) ("The power of courts to set binding precedents... [is] no more than an extension of the power to settle authoritatively the litigation before the court...."). But Raz goes on to indicate something that is quite like the position I am defending. The power of the courts to set precedents, he says, is "an extension of the power of the courts from authoritatively settling a particular cause of action to settling through their interpretive reasoning what is the law which will bind not only the litigants before them, but lower courts in the future, and through them bind all of us."
140. Id.
141. See Neil MacCormick, Why Cases Have Rationes and What These Are, in Precedent in Law 155, 171 (Laurence Goldstein ed., 1987).
142. How he does this-the techniques he uses-is something we will not go into here. There is a massive literature on this. Mel isenberg, for example, explains the difference between "minimalist," "result-centered," and "announcement" approaches and argues (persuasively, in my view) against any approach that confines itself to the first two.
143. See Melvin Aron Eisenberg, The Nature of the Common Law 52 (1988).
144. Melvin A. Eisenberg, Principles of Reasoning in the Common Law, in Common Law Theory, supra note 41, at 87-93.
145. see also Alexander & Sherwin, supra note 41, at 27.
146. I really don't want to go into this here, not because I think it unimportant (it is hugely important), but because one can't do everything, and I don't think that these matters can be resolved without a clear sense of why stare decisis matters, which is more or less what I am trying to establish in this Article.
147. See Hart, supra note 32, at 134.
148. These reasons include plurality and diversity in the legislature, and the politics and compromise that particular formulations involve.
149. See Jeremy Waldron, Law and Disagreement 77-87 (1999).
150. John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2409-19 (2003).
151. See generally Perry, supra note 51, at 235-36 (discussing why courts have no reason to treat common law formulations in a textualist spirit).
152. Cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855 (1992) (discussing the possibility that the law has moved on, leaving a given precedent as a doctrinal "remnant").
153. Practice Statement, [1966] 3 All E.R. 77 (H.L.) (U.K.) (footnote omitted).
154. See Eisenberg, supra note 75, at 93 ("In the mode of legal reasoning known as distinguishing, the court begins with a rule that was explicitly adopted in a precedent and is literally applicable to the case at hand. The court does not reject the rule, but neither does it apply the rule. Instead the court determines that the adopted rule should be reformulated by carving out an exception that covers the case at hand.").
155. The Practice Statement concluded as follows: "In this connexion [their lordships] will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law."
156. Practice Statement, [1966] 3 All E.R. at 77 (U.K.).
157. Raz, supra note 9, at 214.
158. Aristotle, supra note 24, at bk. II, ch. 8.
159. See Fuller, supra note 69, at 162.
160. see also Jeremy Waldron, How Law Protects Dignity, 71 Cambridge L.J. 200 (2012) (U.K.).
161. Maybe the term "stare decisis" refers to one of these rather than the other. Sometimes, its gist is paraphrased as "Follow the principle of the decision in an earlier case." Sometimes, it is paraphrased as "Don't overrule existing precedents." Mostly, it is used to mean an undiscriminated bit of both.
162. Duxbury, supra note 4, at 1-2.
163. I make a great deal of it in Jeremy Waldron, "Partly Laws Common to All Mankind": Foreign Law in American Courts 109-41 (2012).
164. See also Jeremy Waldron, Treating Like Cases Alike in the World: The Theoretical Basis of the Demand for Legal Unity, in Highest Courts and Globalisation 99 (Sam Muller & Sidney Richards eds., 2010).
165. Mel Eisenberg denies that reasoning by analogy is "qualitatively different from reasoning from precedent... which... turn[s] on reasoning from standards."
166. Eisenberg, supra note 75, at 83. He says it differs from reasoning from precedent "only in form."
167. Eisenberg, supra note 75.
168. Cf. David Lyons, Formal Justice, Moral Commitment, and Judicial Precedent, 81 J. Phil. 580, 585 (1984).
169. quoted in Theodore Benditt, The Rule of Precedent, in Precedent in Law, supra note 74, at 92.
170. For the idea of comparative justice, see Joel Feinberg, Noncomparative Justice, in Rights, Justice, and the Bounds of Liberty 265 (1980).
171. Duxbury, supra note 4, at 150.
172. Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 478-79 (1987).
173. I am obliged to Jane Pek, Things Better Left Unwritten?: Constitutional Text and the Rule of Law, 83 N.Y.U. L. Rev. 1979, 1998 (2008), for this reference.