David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like "holdings" and "dicta." Instead of trying to classify judicial announcements into categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it. Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent in this way indicates a generally unrecognized danger from fact-unbound precedents--that is, legal rulings by courts that cannot sensibly be tied to the facts of particular cases. Such unbound precedents arise chiefly in the context of statutory interpretation. The Article suggests several solutions to this problem, including a statutory-interpretation-avoidance maxim and a proposal that courts should not consider themselves obliged in all cases to answer the statutory questions that underlie parties' dispute.
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