Concerned that judges spend too little time writing (as opposed to enhancing) precedential opinions, commentators have advised that judges ought to do the preliminary drafting of all printed opinions. Adoption of such proposals would, nonetheless, “produce fewer published opinions [and] more unpublished dispositions.” 177, 196 (“[I]t won’t save us any time if [unpublished opinions] are being cited back to us. We will have to prepare unpublished opinions as we do revealed opinions–as if they were creating precedent.”).
Indeed, it’s unclear that the Framers would have thought of our view of precedent fascinating.19 The widespread regulation, at its core, was a reflection of custom, and customized had a constructed-in flexibility that allowed it to vary with circumstance. Thus, “when Lord Mansfield integrated the customized of retailers into the frequent law, it was a living versatile customized, responding to the growth and alter of mercantile habits.” To settle for Anastasoff’s argument, we … Read More