> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of JKSCHW at aol.com
> 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.
>
> In new [situations], 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.
Of course, this second sentence largely undermines the first part, since those creative interpretations of precedent can usually go whichever way the judge wants for a new situation, so goodbye predictability in unclear areas of the law.
It is true that in the same exact situation, that predictability is the great argument for the rule of law. But for new situations, most legal writing is pretty much bad poetry -- ie. shall I compare thee to a summer rose or shall I compare thee to the default-rule of buggy whips as noted in the 1913 Wolfson case?
-- Nathan Newman