Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents

Craig Green
2015 Social Science Research Network  
Scholars, judges, and lawyers have fought for decades over originalism, textualism, and "living" interpretation as though such questions arose exclusively with respect to statutes and constitutions. That is wrong. Some judicial decisions have meanings that change over time, much like statutory and constitutional provisions, and sometimes interpreting a case requires more than reading an opinion's text. Legal actors constantly fight over what precedents mean, and those disputes require an
more » ... anding of what such cases meant in the pastwhether at the initial time of decision, or in their subsequent applications. As with statutes and the Constitution, links to a historical past can be important evidence that precedential interpreters are applying extant legal authority, rather than making it up. This Article offers a system for interpreting judicial precedents that clarifies how current fights unfold and identifies techniques for future use. I consider four methods of interpreting precedents that rely on different categories of historical materials and can generate different interpretive results: (i) an opinion's text, which indicates a decision's declared meaning; (ii) adjudicative context, reflecting its implied meaning; (iii) reception by contemporary analysts, depicting its understood meaning; and (iv) subsequent doctrinal applications, which identify its developmental meaning. These categories-much like the textualism, originalism, and dynamism that are familiar in other legal contexts-yield interpretive options
doi:10.2139/ssrn.2574661 fatcat:yuzbbwp67bfc5ofe623nwfilii