Cho on Precedent as a Social Phenomenon: System, Language, Symbol

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.