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Initial random acts can be replicated and evolve into precedents, but precedents can also be built with strategic intent. Regardless of their origin, strategically applying a particular precedent or effectively refuting the relevance of a precedent can help a negotiator control decisions and achieve interdependent goals. The purposeful use of precedents has received little attention in the negotiation literature, even though using precedents can be a powerful negotiating tactic. In this study, we examine how past decisions became precedents that helped establish the Korea-Australia Free Trade Agreement of 2014 (KAFTA). We further consider how precedents established through KAFTA later influenced trade negotiations with Canada, China, India, and Japan. Following an extensive literature review and field research, we developed a two-dimensional matrix (precedent ownership and negotiator goals) to help guide negotiators both offensively (what I want from you) and defensively (what I don't want to give you). We conclude by proposing research to enhance our understanding of temporal issues in negotiation. No previous study within the negotiation literature has examined precedents empirically.

It is remarkable that precedents and their use have not been well explored within the negotiation literature. In this article, I examine the sparse knowledge of precedents and offer a preliminary framework for understanding the role of precedents in negotiation, including how negotiators establish and apply them. Precedents can either evolve randomly or be created with strategic intent. Understanding precedents generally involves examining how negotiators build, adopt, avoid, and reject them. In this review of the existing literature, I identify twelve concepts and paradigms that are particularly relevant to our understanding of negotiation precedents. I also establish a research agenda and identify three methods for further developing our knowledge of precedents: applying path dependence theory from the field of international relations to a negotiation context; conducting experimental research in a laboratory setting involving subjects engaged in negotiation exercises that contain opportunities to apply precedents; and conducting field research with a focus on case methodology grounded in negotiation linkage theory and theories of negotiation dynamics. Finally, in this article, I formulate a two-part framework on building and applying precedents, and offer managerial guidance for the negotiation practitioner. Precedents serve as a strategic technique and provide a source of power at that point in a negotiation when decisions are made.

A decision maker makes a ruling on a random case in each period. She is uncertain about the correct ruling until conducting a costly investigation. A ruling establishes a precedent, which cannot be violated under binding precedent. We compare the information acquisition incentives, the evolution of standards and the social welfare under nonbinding and binding precedents. Compared to nonbinding precedent, under binding precedent, information acquisition incentives are stronger in earlier periods, but become weaker as more precedents are established. Although erroneous rulings may be perpetuated under binding precedent, welfare can be higher because of the more intensive investigation early on.

Existing evidence of law constraining judicial behavior is subject to serious endogeneity concerns. Federal circuit courts offer an opportunity to gain leverage on this problem. A precedent is legally binding within its own circuit but only persuasive in other circuits. Legal constraint exists to the extent that use of binding precedents is less influenced by ideology than use of persuasive precedents. Focusing on search and seizure cases, I construct a choice set of published circuit cases from 1953 to 2010 that cite the Fourth Amendment. I model the use of precedent in cases from 1990 to 2010, using matching to ensure that binding and persuasive precedents are otherwise comparable. The less visible decision of which cases to cite shows no evidence of legal constraint, while there is consistent evidence that the more readily observable act of negatively treating a cited precedent is constrained by the legal doctrine of stare decisis.

Procedure has long shaped how Congress operates. Procedural battles have been central to legislative contestation about civil rights, the welfare state, tax policy, and presidential impeachments. In these instances and many others, procedural disputes often turn not on written rules but on parliamentary precedents. These precedents constitute a hidden system of law that has received little scholarly attention, despite being critical to shaping what goes on in Congress. This Article explores parliamentary precedent in Congress. Parliamentary precedent mostly resembles judicial precedent: both are common-law systems that rely on the arguments of adversarial parties. But the two systems differ in key respects. Parliamentary decision-making employs an especially strong form of stare decisis, is minimalist in the extreme, and relies freely on legislative purpose and legislative history as tools of interpretation. These seemingly legal dynamics play out in the shadow of congressional politics. Understanding parliamentary precedent requires understanding the institutional positions of the parliamentarians, the nonpartisan officials who resolve procedural disputes. The parliamentarians' distinctive jurisprudence reflects their tenuous positions — namely, that they can be removed, overruled, or circumvented by the majority party. Drawing on novel interviews with parliamentarians and the legislative staffers who work closely with them, this Article illuminates the intersection of law and politics in the making of parliamentary precedent. A better understanding of parliamentary precedent contributes to our understanding of how Congress operates and the fault lines that emerge in an age of polarization and hardball. These dynamics also hold lessons for public law more broadly. First, the parliamentarians' efforts to protect themselves from the political fray shed light on efforts by other governmental decision-makers (in all three branches) to do the same. Second, the development of parliamentary precedent provides insight into the relationships between positive law and common law and between law and politics. Third, understanding parliamentary precedent, like understanding other elements of Congress's internal workings, can inform statutory interpretation.

Sexual consent is one’s voluntary, sober, and conscious willingness to engage in a particular sexual behavior with a particular person within a particular context. Sexual precedent theory posits that people believe that engaging in consensual sex at one point in time implies consent to later sexual encounters with that person. By assuming consent once a sexual precedent is set, people may rely less on communication cues. We sought to provide quantitative support for the claim that sexual precedent influences sexual consent in people’s sexual relationships. To capture variability across sexual experiences, we collected daily sexual behavior data from each participant ( n  = 84) over a period of 30 days. We found a curvilinear relationship between sexual history with a partner and how people perceived consent during sexual activity with that partner ( p  = .003, ∆ R 2  = .089). A piecewise regression revealed that participants were less likely to report consent communication cues as sexual precedent increased until about 575 previous sexual behaviors ( p  = .003, R 2  = .122); after this point, participants were more likely to report consent communication cues as sexual precedent increased ( p  = .028, R 2  = .179). Overall, we provide the first quantitative evidence that consent conceptualization varies both within the person and across relationships regarding sexual precedent. In our discussion, we emphasize that sexual consent is contextual and cannot be assumed even after previous sexual encounters.

This article offers an empirical examination of policies on the publication of refugee law decisions in Canada's Federal Court. In 2015, the Court issued a notice describing the Court's general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the mehts will be published.

When thinking of India, it is hard not to think of caste. In academic and common parlance alike, caste has become a central symbol for India, marking it as fundamentally different from other places while expressing its essence. Nicholas Dirks argues that caste is, in fact, neither an unchanged survival of ancient India nor a single system that reflects a core cultural value. Rather than a basic expression of Indian tradition, caste is a modern phenomenon--the product of a concrete historical encounter between India and British colonial rule. Dirks does not contend that caste was invented by the British. But under British domination caste did become a single term capable of naming and above all subsuming India's diverse forms of social identity and organization. Dirks traces the career of caste from the medieval kingdoms of southern India to the textual traces of early colonial archives; from the commentaries of an eighteenth-century Jesuit to the enumerative obsessions of the late-nineteenth-century census; from the ethnographic writings of colonial administrators to those of twentieth-century Indian scholars seeking to rescue ethnography from its colonial legacy. The book also surveys the rise of caste politics in the twentieth century, focusing in particular on the emergence of caste-based movements that have threatened nationalist consensus. Castes of Mind is an ambitious book, written by an accomplished scholar with a rare mastery of centuries of Indian history and anthropology. It uses the idea of caste as the basis for a magisterial history of modern India. And in making a powerful case that the colonial past continues to haunt the Indian present, it makes an important contribution to current postcolonial theory and scholarship on contemporary Indian politics.

Written as part of a keynote address for the 20th Annual Asian Law and Economics Conference, these remarks reflect on the way lawyers, judges, and law professors without economic training view and use law and economic models. After revisiting notably successes of classic results from the tort model – results that have penetrated the legal profession – it turns to the translation of more recent models of lawyer argumentation and precedent. Throughout, the point is to demonstrate how model insights can be used to help argue cases and distinguish precedent.

During his 2016 presidential campaign, Donald Trump repeatedly described himself as \"pro-life\" and vowed, if elected, to appoint Supreme Court Justices who would be reliable votes to overturn 'Roe v. Wade', the 1973 decision that expanded on prior interpretations of the Fourteenth Amendment to conclude that the right to privacy was \"broad enough to encompass a woman's decision whether or not to terminate her pregnancy.\"