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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
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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