The Gravitational Force of Future Decisions

Abstract

In this chapter, I take up Dworkin’s account of law as integrity and explore some of its unrecognized implications regarding the gravitational force of judicial decisions. Under law as integrity, past judicial decisions have gravitational force over present ones for reasons of equality or procedural fairness. Judges have a duty to help ensure that their legal system treats like cases alike, which means that past decisions exert force over present ones even if those past decisions were defective as a matter of substantive justice. I argue that, because equality is not an exclusively past-oriented ideal but rather an a-temporal one, future judicial decisions also exert gravitational force over present ones. Whenever future decisions are reasonably foreseeable, then, judges ought to follow their best predictions of those decisions, just as they ought to follow their best understandings of past precedents. Accordingly, future exercises of governmental authority have normative implications for how officials should exercise their authority today that Dworkin did not appreciate. On the bidirectional model of precedent that I propose here, compared to the conventional, exclusively backward-looking one that Dworkin hung onto, a judge takes a more expansive view of the legal practices that are relevant to the process of constructive interpretation, interpreting not only past judicial decisions but also future ones. This is necessary from the point of view of law as integrity, I argue, because under that view the law must really constituted by both.