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Sep 21, 2020

Past mistakes do not set precedents

Precedents are important in law and in all policy applications. Considering a precedent helps to ensure consistent and therefore fair application of any law or policy. However not all precedents should be followed. Something that has been explicitly recognized as an error or as an aberration should not create precedents. Here is an example: GOP leadership denied Obama the right to nominate a Supreme Court member in the last year of his presidency. While there were many people who objected to this new rule, the Republicans themselves never repudiated it as a mistake. Now they refuse to follow it without any appeal to the soundness of the general rule. That is, of course, a very low point in the partisan politics. For a body so distinguished in their legal and political expertise, the Senate on a brink of a shameful episode.

The recognition or non-recognition of previous mistakes is an important criterion for precedent setting. For example, in Academia we sometimes hear appeals to what appears to be a precedent, but was really an error. A student may say: I did not meet this one requirement in the past, and you passed me. You actually have only to answers here: (1) Yes, I made a mistake in the past, and am under no obligation to repeat it again, or (2) yes, you are right, I will pass you as well. Admission of past mistakes is almost the only ground for denying a precedent. When we are revising a major policy, it is an explicit acknowledgement that the old one had issues. Therefore, appeal to the old policy as precedent is not exactly a valid argument. We would not have revised it if it were OK.

The argument about the “Catalog rights” is similar, although not as clear-cut. On one hand, students who were working toward a degree under certain assumptions, deserve to finish under the same assumptions within reasonable time. On the other hand, this works only insofar as they can show that the change in requirements affected their planning. It is very difficult to do, so we grant them a blanket right to stay with the old catalog. But this right is not unlimited, and not unqualified. After all, we revised the degree, because we thought the old one was not good enough anymore. So, no you cannot get a degree you started in 1971. The world has moved on. The same applies to faculty members, hired under a different set of T&P guidelines: it is a valid argument, but not an unqualified one. Like many other things in the world of policy, it is a balance between two or more competing considerations. Policies rarely have a simple, on-sided justification. Almost always, they are compromises between two or more competing priorities.

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