Why every lawyer needs a home copy of The Law of Judicial Precedent.
In the past month, three lawyers and one appellate judge have written to ask for citations to the ground-breaking treatise The Law of Judicial Precedent (2016). They were stuck at home and didn’t have a copy ready at hand. We supplied the citations.
Why ground-breaking? (1) It’s a 910-page treatise with 93 blackletter principles. (2) It was the first such treatise on precedent in more than a century. (3) The authors are Bryan A. Garner and twelve federal and state appellate judges—all of whom signed off on every word of the text (no signed sections, no dissents). (4) Among the coauthors are two U.S. Supreme Court justices—and the preface is written by Justice Stephen Breyer. (5) It’s magnificently researched; its depth is mind-boggling. (6) Every page is a pleasure to read. (7) Courts have been citing it with great frequency.
How do you use it? Let’s say you want to show that a case you’re relying on qualifies as a leading case, or that your opponent’s main precedent doesn’t. (You need to know the principles for making that argument.) You want to argue that an old case has great weight, or, to the contrary, that it should be given little weight because it’s so old. (You need the principles.) You want to show that your opponent is misreading a plurality opinion. (You need the principles.) You need to argue that a precedent is weak because it was ill-considered and its rule underanalyzed. (You need the principles.) You need a clincher for how to resolve conflicting decisions from the same appellate court. (Again, the principles.)
The mistake that many lawyers make is to cite plentiful cases from within one jurisdiction but never think to cite the leading national treatise. You want both, actually, and you won’t find a better source than The Law of Judicial Precedent.
At about six cents per page, you won’t find a better value in legal treatises—unless it’s the Scalia & Garner book Reading Law. Even if you don’t yet have a home copy of each, you surely know how to have one delivered to your doorstep.
For that matter, you’ll probably want two of each. Your office copies will soon be borrowed and never returned. Sad but true.