While the idea of legal precedent implies some degree of durability, precedents are not immortal. Over time, they lose their capacity to influence action; eventually they cease to be of anything other than historical interest. Although precedential decay's existence is generally accepted, the determinants of precedential decay are comparatively under-studied.
Yun-chien Chang (Cornell) & Geoffrey Miller’s (NYU) recent paper, Decay of Precedent in State Supreme Courts, extends this literature by analyzing citation decay patterns in state supreme court opinions, drawing on three different (and large) data bases. Their paper examines both “backward-looking” precedential decay—the frequency with which opinions in a given year cite to opinions from prior years as well as “forward-looking” decay—the frequency with which specific precedents are cited in later opinions. One key finding includes the extraordinary persistence of exponential decay across all of the data. The paper’s abstract follows.
“This paper investigates the decay of precedents in three unique databases: citations in all published opinions by state supreme courts in 2019 (102,555 citations); citations in all published opinions by state supreme courts in 2003 (114,777 citations); and citations by all state and federal courts to state supreme court opinions issued in 2003 (259,627 citations). We find that the frequency of citation drops off by a roughly constant ratio with each passing year. The large scale of our yearly data and the time studied (1904–2019) suggests that this pattern must be the result of underlying forces not having to do with particular circumstances of time or place. We also find that cases with dissents tend to cite older cases and longer decisions tend to be cited more often and faster. Criminal law cases, as compared to constitutional law cases, tend to cite more recent precedents, while trust and estate cases tend to cite older precedents. We offer some conjectures about possible reasons for the observed differences in decay rates.”
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