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Who gets to decide what counts as law? The weight of authority in the U.S. legal system is governed almost entirely by unwritten rules—social norms that establish which sources have weight (and how much weight they have). In 2016, Bryan A. Garner and twelve judges published a treatise essentially codifying unwritten rules related to the operation of precedent. That book, The Law of Judicial Precedent, has itself become a source of authority (on legal authority), cited by judges across jurisdictions. In this essay, I question whether the judicial norms governing the operation of precedent are appropriately presented as definitive blackletter law.

Textualization has power. While such a treatise might bring some transparency to the judicial decisionmaking process—making judicial norms easier to identify—it might also cement such norms prematurely, inhibiting their evolution. Many of the most frequently cited blackletter principles in the treatise represent complex tools of judicial reasoning, not well-suited to a rule format. Judicial citation to these precepts may reflect a kind of performative formalism, in which judges exhibit deference to “law” made up of tools of reasoning and social norms they themselves are responsible for creating. The treatise’s pseudo-codification of judicial norms (and subsequent citation by judges) is at the very least, worthy of discussion.

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19 Legal Commc'n & Rhetoric 155 (2022)