John G. Browning 2017-08-23 14:29:15
When members of several different established bands decide to team up for a side project, the result is often referred to as a “supergroup.” When individual star athletes assemble, it’s sometimes called a dream team. And while leading lexicographer and legal writing guru Bryan A. Garner may not have had his longtime co-author, the late Supreme Court Justice Antonin Scalia, to collaborate with on The Law of Judicial Precedent (Thomson West, 2016), he did assemble a veritable all-star team of legal luminaries. The treatise, an intimidating 942 pages, lists now U.S. Supreme Court Justice Neil M. Gorsuch, 9th Circuit Judge Carlos Bea, 10th Circuit Judge Harris Hartz, D.C. Circuit Judge Brett Kavanaugh, 9th Circuit Judge Alex Kozinski, 1st Circuit Judge Sandra Lynch, 11th Circuit Judge William Pryor Jr., 5th Circuit Judge Thomas Reavley, 6th Circuit Judge Jeffrey Sutton, 7th Circuit Judge Diane Wood, retired Arizona Supreme Court Chief Justice Rebecca White Berch, and the Texas Supreme Court’s own Chief Justice Nathan L. Hecht as co-authors with Garner. It’s hardly surprising that he called for judicial reinforcements in the writing of this tour de force; with more than 2,500 cases discussed or cited in the work’s 93 blackletter sections, the scale of such a project is breathtaking. Indeed, it’s been over 100 years since we had a hornbook on the doctrine of precedent. Writing with a single voice—no individually attributed sections here—Garner and his distinguished co-writers analyze not only the types of precedent, but also how and when they are invoked and the pros and cons of each. As the treatise examines, determining when a precedent must be followed—and when it probably shouldn’t be—often involves a difficult calculus. Is the precedential decision the actual holding in the case, or merely dicta? What kind of precedential weight do unpublished opinions carry? And what about a precedent that is just flat-out wrong or outdated? As the book points out, “The power of precedent includes ... the power to enshrine wrong decisions.” The tome is an invaluable resource for all lawyers, judges, and law students, and appellate practitioners in particular will find it indispensable. While judicial precedent and its value are a vital part of promoting consistency within our legal system, it is still often misunderstood. Yet for any lawyer, few things are as important as understanding why judges reach the decisions they do and how prior caselaw informs these decisions—in other words, how precedent actually works in practice. That practical focus, in an area where many authors would be mired in the theoretical, is one of the book’s great strengths, along with the clarity and accessibility of its writing. And would we expect anything less from Garner? The Law of Judicial Precedent is a “must have” for those in the legal profession and merits a place on any lawyer’s bookshelf. JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at Southern Methodist University Dedman School of Law.
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