A Reliance Approach to Precedent

Why and when should courts presumptively defer to theirown past precedents? The doctrine of precedent lies at thecore of American jurisprudence and legal practice, but thesource of its normative force remains unclear.Consequently, its application is confused and contested.In this Article, I argue that precedent matters becauseand to the extent that it generates reliance interests on thepart of the public. Although I am not the first to suggestthat reliance is the foundational justification for deferenceto precedent, this Article represents the first sustained effortto defend the reliance approach in deontological terms andto consider its far-reaching theoretical and practicalimplications.In particular,this approach, which has both descriptiveand normative aspirations and features, suggests that wemust at once limit and expand our traditional notions ofwhat qualifies as precedent. More broadly, it upsets what Icall the gravitational account of laws, suggesting that thelived experience of those regulated by the law can andshould operate as a constraint on judges.