PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT. (March 2020)

• Record Type: Journal Article
• Authors: Mullins, Robert
• Is Part Of: Legal theory. Volume 26:Number 1(2020)
• Page Start: 40
• Page End: 61
• Publication Date: 2020-03
• Subjects: Law -- Periodicals; 340.1
• DOI: 10.1017/S1352325220000075
• Languages: English
• ISSNs: 1352-3252

Abstract

ABSTRACT: According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.