Rob Mullins (University of Queensland – T.C. Beirne School of Law) has posted Distinguishing and Reinterpreting in the Reason Model of Precedent (Legal Theory, forthcoming 2026) on SSRN. Here is the abstract:
Courts that wish to avoid the effect of a binding precedent sometimes do so by reinterpreting the precedent so that its application depends on underlying facts of the case that were not invoked by the precedent court in their formulation of their reasons for decision. This article considers the implications this practice, which I call “restrictive reinterpretation”, for the popular reason model of precedential constraint. The practice of restrictively reinterpreting precedent exposes the reason model of precedent to criticism on two opposing fronts. On one hand, it threatens the distinction between distinguishing and rule-modification that underlies the reason model. On the other, it provides a basis for challenging the view that courts’ formulations of their reasons for judgment have constraining effect. The article presents these challenges within an extended formal framework, before offering a qualified defence of the reason model.
Highly recommended!
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