Adrian Vermeule Reviews Michael J. Gerhardt 's "The Power Of Precedent" | The New Republic

Adrian Vermeule Reviews Michael J. Gerhardt 's "The Power Of Precedent" | The New Republic: Gerhardt argues that judges have self-interested incentives to maintain a norm of precedent through cooperation. The “golden rule,” he suggests, is that “the justices recognize the need to give the same level of respect to the precedents of others as they expect their preferred precedents to deserve.” (Here Gerhardt implicitly appeals to a game-theoretical account of precedent as an emergent norm based on reciprocity, pioneered by law-and-economics scholars such as Erin O’Hara.) He documents that it is very rare for the Court to overrule a precedent, or for an individual Justice to call for overruling one. Indeed, Gerhardt goes on to argue that there are “super-precedents” with more than ordinarily binding force; Marbury v. Madison is an example, the decision in 1803 that is conventionally cited as having established judicial authority to decide whether laws are constitutional.