Precedent and the Individual Opinion: Judges Judging Judgments and the Creation of the Law Canon

T.S. Eliot discusses the role of the author-critic in literary canon formation in his essay, “Tradition and the Individual Talent.” This article draws on Eliot to illuminate the role of the judge as author-critic in the creation of the law canon. The act of judicial opinion writing, as the article describes, is an act of canon formation, in which judges, having acquired a sense of the tradition, construct a precedential lineage for their individual opinion, and, with the issuance of the opinion, alter the existing order of precedent. The relationship between tradition and the individual talent that Eliot details also aptly describes the relationship between legal precedents and individual judgments. T.S. Eliot’s essay, “Tradition and the Individual Talent,” is a discourse on authorship and literary history, but it is also a discourse on canon formation, which is as instructive for literature as it is for law. The canon process that Eliot describes is of the poet’s relationship to past writings and the importance of the poet inculcating an historical sense of the past’s continuing presence. Eliot’s “poet” is both author and critic, simultaneously choosing the past literature that defines, and in turn, is defined by the poet’s contributions to literary history. While Eliot refers to the artist’s appreciation of the “whole of literature,” this literature is in fact a consciously selective tradition, comprising those works of art through which the writer of the “really new” creates a textual lineage, critiquing preceding authors as a necessary aspect of authoring.Canon theories have tended to focus on institutions, especially universities and publishers, as the site of canon construction or, where individual acts are emphasized, on the construction of the academic canon through the activities of teachers and literary critics. Similarly in law, theories of canon formation have also focused on the academic canon for pedagogical and scholarly purposes, sited at the university, and the individual acts of professors. Eliot, however, notably highlights how authors create canons by choosing their literary precedents through the labor of acquiring an historical sense of one’s predecessors as artistic influences. The author canon thus can be seen as the original canon from which other canons are later formed. This author-focused canon process aptly applies to law as well, this time with the judge serving as “poet,” which, as Eliot describes it, combines the roles of both author and critic. Judges select and shape precedential tradition in a process of interpreting and determining the meaning of previous cases, while trying to assert the meaning of the case under consideration for their successors. But this assertion can only be provisional because judges in subsequent opinions will evaluate and modify the interpretation of precedents and, as Eliot described of authors, shift the tradition again.

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