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1988 Wis. L. Rev. 771 (1988)
Precedent and Legal Authority: A Critical History

handle is hein.journals/wlr1988 and id is 781 raw text is: PRECEDENT AND LEGAL AUTHORITY: A CRITICAL HISTORY In this Article, Professor Charles Collier traces out a general theory of prece- dential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding con- ceptions of scientific authority. The two doctrines coexist in a state of essential ten- sion, because legal principles can become non-precedential either by being too broad and general or by being too narrow and particularized. CHARLES W. COLLIER* Legal discourse could not advance far without an underlying notion of legal authority. Such a notion is implied in talk about authoritative legal texts and opinions, about holdings and doctrines of cases, and about the gravitational force of precedent-all of which are comparatively common in current legal discussions. Yet, the idea of legal authority itself raises basic questions to which the prevailing answers seem strikingly inadequate. How is it, for example, that particular legal texts become authoritative in the first place? What makes a case decided in 1409 good precedent for determining who is liable for leakage from a gas burner installed in 1929?1 Why is a case about contracting for an incestuous marriage binding on, or even relevant to, the decision in a case of attempted * Assistant Professor of Law, University of Florida. B.A. 1972, Reed College; M.A. 1973, M.Phil. 1975, Ph.D. 1978, Yale University; J.D. 1985, Stanford Law School. An earlier version of this Article was presented as a Senior Thesis at Stanford Law School in 1985. I would like to thank Bob Gordon and Tom Grey of Stanford for advising me and guiding the course of my research on that original project. I am also greatly indebted to Jonathan Culler, Kermit Hall, Barbara Hauser, Bob Moffat, John Monahan, Walter Probert, Rolf Sartorius, Frederick Schauer, Chris Slobogin, Sally Jan Smith, Laurens Walker, G. Edward White, James Boyd White, and Ann Woolhandler for helpful comments, criticisms, advice, and encouragement. Martha Downey, Paul Healy, Curtis Kinghorn, and Brian Solomon provided valuable research assistance; the University of Florida Department of History gave me an opportunity to try out these ideas at a faculty colloquium; and the University of Florida College of Law supported much of the research on this article with a Summer Research Appointment. ' I. See Bottomley v. Bannister, [19321 1 K.B. 458, 464 & n.l; cf. A. GOODHART, PRECEDENT IN ENGLISH AND CONTINENTAL LAw 29 (1934).

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