The essential rule for recovering authentic legal history is to never take judicial statements about that history at face value. Judges routinely innovate and change existing doctrine, but they typically cover up their innovations by inventing fictional accounts of precedent and history. Sycophantic academics then come along and embellish the judicial fictions. (How else are commentators to get “cited” in Supreme Court opinions?) To complete the cycle, the justices then cite the commentaries as confirmations of their own inventions. The overall result is that the conventional doctrinal history that is derived from judicial claims often turns out to be drastically different from the authentic history.
Thursday, March 10, 2011
Legal History in Judicial Decisionmaking
Thomas Y. Davies, 100 Journal of Criminal Law & Criminology 940 (2010) (footnotes omitted):