Constraint and Freedom in the Common Law
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Abstract
This paper contributes to our formal understanding of the common law — especially the nature of the reasoning involved, but also its point, or justification, in terms of social coordination. I present two apparently distinct models of constraint by precedent in the common law, establish their equivalence, and argue for a perspective according to which courts are best thought of, not as creating and modifying rules, but as generating a social priority ordering on reasons through a procedure that is piecemeal, distributed, and responsive to particular circumstances.
