Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution Academic Article uri icon


  • For more than a century, the American system of legal education has predominantly emphasized the role of cases and judge-made law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in order to predict what stare decisis-constrained courts will likely do in the future. Even outside of pure common law, statutory interpretation is principally a judicial function. This article describes the extent to which these assumptions are incorrect and suggests steps that we in law teaching should take to adapt our classroom approach accordingly. Two areas best illustrate the growing falsity of these assumptions about stare decisis and statutory interpretation that law students are taught in their first year of law school. The first such area is when administrative agencies engage in non-judicial adjudication of cases and promulgating regulations. The second area is that in which contracting parties have their disputes determined by an arbitrator instead of a judge. The government agency and private arbitrator have one thing in common: the broad swath of their interpretations and applications of prior law tends to be unassailable and will likely be the last word on the matter, even if their actions are at gross variance with what a court would have been obligated to do as a matter of law. Our teaching of legal analysis should better reflect this reality of law practice. In a sense, practitioners today are likely to appear before some "judge" who will grapple with fixed statutes but who is not necessarily bound by stare decisis. Put another way, many cases now should be approached by prudent practitioners as though they are questions of first impression, even when they are not. Part II of this article considers the ubiquitous role of stare decisis as an underlying paradigm in the first year of law school, with a particular focus on the interrelation of that common law doctrine and statutory interpretation. Next, Part III describes the increasing displacement of stare decisis as a controlling limitation in American law, most notably in administrative law and arbitration. Part IV evaluates the value of the traditional judicial framework for legal instruction in light of its substantial inaccuracy, concluding that stare decisis must remain prominent but that changing realities of law practice require it to play a lesser role. Our students must learn the ability to think outside the stare decisis box while maintaining the ability to be constrained by it. This article concludes that the precedent-oriented methodology we typically employ for teaching legal analysis in first-year coursesespecially in the first-year legal writing courseis, despite being well-meaning and pedagogically sound, increasingly dishonest. Stepping away from the myopic focus on stare decisis and incorporating a more robust concept of non-judicial statutory interpretation into our first-year courses are ultimately the best remedies for this problem.

published proceedings

  • Cardozo Journal of Conflict Resolution

author list (cited authors)

  • Burge, M. E.

complete list of authors

  • Burge, Mark Edwin

publication date

  • January 2013