Bernadette A. Meyler, The Rhetoric of Precedent (April 11, 2016). In Rhetorical Processes and Legal Judgments, Austin Sarat ed. (Cambridge: Cambridge UP, Forthcoming); Stanford Public Law Working Paper No. 2763085. Available at SSRN
This paper attempts to move from the rhetorical analysis of the individual judicial opinion championed early in the law and literature movement to a form of “distant reading” of cases. Positing that precedents serve as a kind of trope — turning the reader to another context to understand the issue at hand — the piece looks at the stories that the assemblage of precedents cited tell in the majority, concurring, and dissenting opinions of the Supreme Court’s constitutional decisions. Mapping precedents visually puts on display instances of surprising discrepancy among the precedents that disparate opinions invoke. The paper concludes by suggesting that this divergence in the citation of precedents, more than even different uses of precedent, could indicate a breakdown in the dialogue among different positions on the Court.