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John C.P. Goldberg & Benjamin C. Zipursky, A Precedent-Based Critique of Legal Positivism, (Harv. Pub. L. Working Paper No. 22-06, April 7, 2022).

Abstract: The doctrine of vertical precedent requires that courts, except for a jurisdiction’s highest court, must follow an on-point precedent or distinguish it. Lawyers are typically taught that distinguishing a precedent requires a court to articulate why the current case is justifiably treated in a different manner than the precedent. Exclusive legal Positivists are troubled by the phenomenon of distinguishing, because the notion of justification built into the idea of distinguishing precedent appears to call for substantive normative reasoning by lower courts. To respond to this apparent problem, Raz has suggested a model of legal reasoning that treats “distinguishing precedent” as a kind of legal change rather than as law-application. This article contends that the Razian strategy cannot work because it simply gets the law wrong: lower courts are not generally empowered to amend the law. An undistorted description of the practice must recognize that courts engage in small-scale moral reasoning when they distinguish vertical precedents. The last half of the article utilizes several Indiana cases on the affirmative duties of landowners to illustrate the power and authenticity of our anti-positivistic account.