12 Mark Washofsky
tactic for loosening the hold of precedent is that of distinguishing, whereby the present court will find that, though a precedent is“binding,” the rule stated by its predecessor was too wide or vague, or that it does not cover the fact situation of the present case. This reflects the reality that legal reasoning is primarily analogical in nature: the court must decide whether the present case sufficiently resembles the precedent in order to determine whether to apply the precedent’s rule.” And distinguishing is not the only intellectual tool that makes for judicial innovation and maneuver. The American legal scholar Karl Llewellyn devoted much research to documenting the fact that the case law system provides judges with“leeways” as well as with constraints in dealing with precedents.’® From his study of hundreds of appellate opinions, he derived a long list of techniques by which American courts construe the rulings of their predecessors, broadly or narrowly. Llewellyn noted that legal practice regards all of these“canons of construction” as proper rules of interpretation: that is, a judge is procedurally entitled to employ them in deciphering the meaning of the legal texts before him or her. Yet these rules are not all of one piece; they are diverse, divergent, even contradictory. A judge may decide to follow, restrict, ignore, redirect, or“kill” the holding of a precedent, all with equal legitimacy, by utilizing these techniques. And since the decision which technique to use cannot be determined by some other, overarching set of principles, it follows that judicial decision is not simply a matter of logical deduction from premises(precedents) to conclusions. Rather, in the application of precedent the court must inevitably expand or contract it, creating new legal meaning in the process. The current judge, in other words, does not merely read precedent but rewrites it; in every citation of a prior ruling the judge effectively determines what that ruling shall mean in the present context. This does not mean that judges operate without constraints upon their freedom of decision; such constraints exist, as Llewellyn took pains to point out. It does mean, though, that these constraints take the form of social and professional factors that determine the environment in which the craft of judging takes place.> They do not operate as a conceptual straitjacket that coerces a predetermined interpretation upon the judge, who might legitimately understand a precedential case in a variety of ways.“Later courts... are not content to be completely fettered by their predecessors,