Why Legal History Matters

Notes

the search for precedent is a search for an apparently similar case in a case report shorn of any context. Although the common law relies on the past, it relies on a past that it constructs, not a contextual, complicated past.

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cf Platform Enclosure of Human Behavior and its Measurement: Using Behavioral Trace Data against Platform Episteme. A similar idea at work: we treat precedent as objective observation when in fact it is performative

not only that law itself has a concrete role to play, but also that it has significant symbolic and ideological power

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