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32 LEG e1-1 (2026)

handle is hein.journals/legthory32 and id is 1 raw text is: Legal Theory (2026), 32: el, 1-29 CAMBRIDGE doi: UNIVERSITY PRESS Robert Mullins TC Beirne School of Law, University of Queensland, Brisbane, Australia Email: (Received 25 June 2024; Revised 16 October 2025; Accepted 11 February 2026) Abstract Courts that wish to avoid the elfect 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 foIrmulation of their reasons for decision. This article considers the implications ofthis practice, which I call restrictive reinterpretation, for the popular reason model of precedential constraint. The practice ofrestrictively 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' lfrmulations of their reasons for judgment have constraining effect. The article presents these challenges within an extended olrmal framework, before offeringa qualified defense of the reason model. According to one popular account, the common law doctrine of precedent imposes a disjunctive obligation on courts: they are required to either follow or distinguish binding precedent.' In the most straightforward cases, courts distinguish by drawing attention to some aspect of the new case that was not present in the facts before the court in the precedent case. In other cases, however, courts avoid the effect of binding precedent by drawing attention to some facts of the precedent case that are absent in the new case. Unlike straightforward cases of distinguishing, this second method of avoiding precedent requires courts to reinterpret the precedent so that it is narrower in scope. The court draws attention to facts of the precedent case that were not relied 'JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 185 (2nd ed. 2009); Grant Lamond, Do Precedents Create Rules?, 11 LEGAL THEORY 1, 3 (2005) (hereinafter Lamond, Do Precedents Create Rules?). D The Author(s), 2026. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike licence (h i o e 4.0), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the same Creative Commons licence is used to distribute the re-used or adapted article and the original article is properly cited. The written permission of Cambridge University Press or the rights holder(s) must be obtained prior to any commercial use. Published online by Cambridge University Press