Distinguishing and Reinterpreting in the Reason Model of Precedent

Abstract Courts that wish to avoid the effect of a binding precedent sometimes do so by reinterpreting the precedent so that its application depends on underlying facts of the case that were not invoked by the precedent court in the formulation of their reasons for decision. This article considers the implications of this practice, which I call “restrictive reinterpretation,” for the popular reason model of precedential constraint. The practice of restrictively reinterpreting precedent exposes the reason model to criticism on two opposing fronts. On one hand, it threatens the distinction between distinguishing and rule-modification that underlies the reason model. On the other hand, it provides a basis for challenging the view that courts’ formulations of their reasons for judgment have constraining effect. The article presents these challenges within an extended formal framework, before offering a qualified defense of the reason model.