Judicial Precedent in the Late Eighteenth and Early Nineteenth Centuries: A Commentary on Chancellor Kent's Commentaries

Abstract

At the time of nation's founding, the concept of stare decisis in our courts was very different from what it has become today. The purpose of this Article is to explore the meaning of stare decisis - precedent - as it would have meant to Chancellor James Kent in his third edition of Commentaries on American Law, published in 1836. This Article considers the meaning of each sentence and phrase from a single paragraph in light of the contemporary case law from the English and American courts, common philosophical presuppositions, and writings from late eighteenth and early nineteenth centuries. The conclusion asserts that the idea of precedent was indeed important at the time of our founding but it was by no means the same as the doctrine of strict precedent we have today.