SMU Law Review
Abstract
Judicial decision-making is governed by a complex web of unwritten operational rules—rules made by judges themselves. Some of these rules, like stare decisis or canons of interpretation, garner endless attention. Others remain unnoticed, becoming entrenched without ever being evaluated.
This Article is the first to identify and evaluate one such category of rules—those governing issues of first impression Public and academic attention is focused almost entirely on judicial fidelity to precedent, not what courts do in its absence. But issues of first impression are decided regularly by all U.S. courts, and the first impression label can have concrete legal effects. I identify two areas of the law of first impression: (1) a set of procedural rules for issues of first impression, and (2) a set of consequences imposed on parties who litigate those issues. Both categories are grounded in the unquestioned assumption that issues of first impression deserve different and special treatment.
The law of first impression is flawed. The first impression designation is subjective, because whether an issue fits the first impression definition depends entirely upon the level of abstraction used to describe it. Moreover, the justification for special rules is the purported unpredictability of issues of first impression compared to other legal issues, a characterization that is entirely unproven. Yet first impression rules are routinely invoked and applied by judges across jurisdictions, treating some litigants differently than others in ways no one has carefully examined.
Recommended Citation
Amy J. Griffin,
The Law of First Impression,
78
SMU L. Rev.
689
(2025)
