<< I actually find law and economics more attractive legal analysis than the
canonical citing of precedent, as if the accumulation of words by old white
judges adds up to an argument for new situations and the needs of people who
barely had their existence recognized under the law in most cases when those
precedents were cited. It at least demands a positive social reason for any
legal rule - in many ways an advance over "natural law" bull---- that usually
just protects privilege in a mass of words.
But it is still embedded in so much privileged rhetoric that you can only take
it so seriously on alternative Tuesdays :)
>>
As someone whose job it is to draft judicial opinions, let me say two words in favor of precedent. First, there's the point that there is social utility in knowing what the rule of law that governs your conduct is. Predictability is a major advantage, even when the rule is bad. After all, given that the law generlly protects privilege, it's best that this is done in a predicatble rather than a random way. People sneer at this, but only if they have not had too think about conforming their conduct to the law in a system where it's unpreductyable.
Second, although I wouldn't go as far as the crits, precedent doesn't have to constrain you to apply bad old rules that old apply in new situations. It's only in the recurring old ones that it sworks like a cookie cutter. In new ones, what you do, what I do,anyway, is use creativity to either find or inrterpret good precedents to get better ourcomes and distinguish bad precedents. The common law approach calls for this; that's one of its virtues.
Posner himself is "officially" indifferent to precedent and purely future oriented and consequentialist in his theoretical views. But he's too good a judge to be that way in his practical judicial work. His opinions are better law as law than, say Easterbrook's, who hasa theory that in theory respects statutory text but a practice that writes law to his own ideology.
--jks