The Gravitational Force of Future Decisions

Abstract

Abstract This chapter argues that in the process of adjudication judges may have a duty to ‘follow’ not only past judicial decisions but also future ones. The chapter develops the idea within a Dworkinian framework, showing how under law as integrity future decisions exert gravitational force (or precedent-like effect) on present cases for some of the same reasons that past decisions do. This force gives rise to a type of judicial obligation that has not been addressed in the literature, and calls for the new model of case-based adjudication that the chapter begins to develop. For Dworkin, the primary value underlying the practice of precedent is equality or formal justice. Judges have a duty to help to ensure that their legal system treats like cases alike, which means that they ought to follow past decisions. The chapter argues that, because equality is not an exclusively past-oriented ideal but rather an atemporal one, whenever future decisions are reasonably foreseeable they exert precedent-like pressure on judges. Accordingly, future decisions have underappreciated normative implications for how judges should exercise their authority today. On this model of case-based adjudication, compared to the conventional, purely retrospective one that Dworkin hung on to, a judge takes a bidirectional, and in that sense more expansive, view of the proper input to the enterprise of constructive interpretation. The chapter tries to show how, under the best interpretation of law as integrity itself, the law is constituted, in part, by future cases as well as past ones.