11 - The Path Dependence of the Law

Summary

Any legal system that relies on precedent necessarily confronts conflicting objectives. Precedent constrains decision makers (judges and juries) who might otherwise have idiosyncratic preferences and permits the law's subjects to predict the consequences of their conduct. But precedent simultaneously limits the capacity of decision makers to adjust to new conditions and, arguably, discourages detection of those changes by reducing the need for judges to justify their decisions, as long as they discern no novelty in the case they are deciding. This tension between the conflicting characteristics of a precedential system both explains and disputes a major theme of The Path of the Law. Much of that essay portrays tradition in the law as worthy of ridicule. While the villain is often legislators rather than judges, the phrases that Holmes employs to critique the use of tradition as a basis for decision (“the pitfall of antiquarianism” by which “tradition … overrides rational policy” [474, 472]) suggest that, in the adjudicative context, reliance on precedent does not simply frustrate legal evolution but subjects legal doctrine to misapplication and inappropriate extension (472–73).

This view, however, appears distorted once one considers a broader range of Holmes's writings as commentator and judge. Notwithstanding the strong language in his celebrated essay, his earlier lectures on the common law and his judicial opinions reveal a more measured and more complex role for precedent in the development of legal doctrine.