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73 Tex. L. Rev. 1 (1994-1995)
Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking

handle is hein.journals/tlr73 and id is 19 raw text is: Texas Law Review Volume 73, Number 1, November 1994 Articles Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking Evan H. Caminker* The overwhelming scholarly and judicial consensus concerning the proper role of lower courts in the judicial hierarchy is that they should interpret and follow existing legal precedents without considering what their superior courts would likely do on appeal. Nevertheless, Professor Caminker argues that the values of hierarchy pur- portedly furthered by this precedent model-judicial economy, uniformity of legal interpretation, and proficiency of interpretation-are achieved at least as well and sometimes better by a proxy model, according to which lower courts interpret various data to predict how their superior court would decide the same matter. The present consensus in favor of the precedent model reflects a view that predictive decisionmaldng contravenes the proper jurisprudential conception of adjudication because it asks inferior courts to decide cases according to what the law will be rather than is. Professor Caninker rejects this view, both because it unjustifiably privileges a particular conception of law and because inferior court decisionmaking should be dictated by normative considerations concerning power allocation within a hierarchical judiciary, not by abstract jurisprudential considerations. After carefully examining how and in which types of cases each model furthers the values of a judicial hierarchy, Professor Caminker concludes that at least in some admittedly narrow circumstances, inferior courts may properly predict future superior court rulings. In fact, in spite of professed rejection of the proxy model, lower courts already incline toward prediction in several subtle ways. Professor Caminker * Acting Professor, U.C.L.A. School of Law. B.A. 1983, U.C.L.A.; J.D. 1986, Yale Uni- versity. I gratefully acknowledge helpful suggestions from Akhil Amar, Vik Amar, Erwin Chemerinsky, Michael Dorf, Alan Hirsch, Gilian Lester, Chris Littleton, Seana Shifflin, Louise Weinberg, and numerous colleagues participating at a paper presentation to the U.C.L.A. Faculty. I also thank Elizabeth Horton for valuable research assistance.

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