Sungjoon Cho, Chicago-Kent College of Law, has published Precedent as a Social Phenomenon: System, Language and Symbol in the Chicago-Kent Research Paper Series. Here is the abstract.
Precedent has often been analyzed along the rationalist line and touted for its market-friendly and efficiency-enhancing properties. Yet this consequentialist approach can hardly demonstrate that precedent is in fact a product of habit and custom. This article approaches precedent as a social phenomenon and explains its ostensibly unquestioned compliance pull in terms of system, language and symbol. The linguistic structure of precedent, as a reproductive mechanism, collectively represents the preexisting normative structure that is largely taken-for-granted in a Bourdieuvian sense. Markedly, the social framework on precedent is paradoxically salient in international law, which lacks a centralized, sophisticated legal-institutional complex as seen in a domestic legal system. This article applies this social framework to the jurisprudence of the World Trade Organization (WTO).The full text of the article is not available for download from SSRN.