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RULES AND REASONS IN THE THEORY OF PRECEDENT

Published online by Cambridge University Press:  29 June 2011

John F. Horty
John F. Horty*
Affiliation:
University of Maryland
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Extract

The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, a logic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic.

Type
Research Article
Information
Legal Theory , Volume 17 , Issue 1 , March 2011 , pp. 1 - 33
Copyright
Copyright © Cambridge University Press 2011

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References

REFERENCES

Aleven, Vincent. (1997) “Teaching Case-Based Argumentation through a Model and Examples.” Ph.D. thesis, Intelligent Systems Program, University of Pittsburgh.Google Scholar
Aleven, Vincent, and Ashley, Kevin. (1997) “Evaluating a Learning Environment for Case-Based Argumentation Skills.” In Proceedings of the Sixth International Conference on Artificial Intelligence and Law (ICAIL-97), 170–179 (New York: Association for Computing Machinery Press).Google Scholar
Alexander, Larry. (1989) “Constrained by Precedent.” Southern California Law Review, 63: 1–64.Google Scholar
Alexander, Larry. (1996) “Precedent.” In Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory, 503–513 (Blackwell).Google Scholar
Alexander, Larry, and Sherwin, Emily. (2001) The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Duke University Press).Google Scholar
Alexander, Larry, and Sherwin, Emily. (2007) “Judges as Rule Makers.” In Eldin, Douglas, ed., Common Law Theory, 27–50 (Cambridge University Press).CrossRefGoogle Scholar
Ashley, Kevin. (1989) “Toward a Computational Theory of Arguing with Precedents: Accommodating Multiple Interpretations of Cases.” In Proceedings of the Second International Conference on Artificial Intelligence and Law (ICAIL-89), 93–110 (Association for Computing Machinery Press).Google Scholar
Ashley, Kevin. (1990) Modeling Legal Argument: Reasoning with Cases and Hypotheticals (MIT Press).Google Scholar
Branting, L. Karl. (1991) “Reasoning with Portions of Precedents.” In Proceedings of the Third International Conference on Artificial Intelligence and Law (ICAIL-91), 145–154 (Association for Computing Machinery Press).Google Scholar
Branting, L. Karl. (1994) “A Computational Model of Ratio Decidendi.” Artificial Intelligence and Law 2: 1–31.CrossRefGoogle Scholar
Cross, Rupert. (1968) Precedent in English Law, 2nd ed. (Oxford University Press).Google Scholar
Dancy, Jonathan. (1993) Moral Reasons (Basil Blackwell Publisher).Google Scholar
Dancy, Jonathan. (2004) Ethics without Principles (Oxford University Press).CrossRefGoogle Scholar
Goodhart, Arthur. (1930) “Determining the Ratio Decidendi of a Case.” Yale Law Journal 40: 161–183.CrossRefGoogle Scholar
Hooker, Brad, and Little, Margaret. (2000) Moral Particularism (Oxford University Press).CrossRefGoogle Scholar
Horty, John. (1999) “Precedent, Deontic Logic, and Inheritance.” In Proceedings of the Seventh International Conference on Artificial Intelligence and Law (ICAIL-99), 63–72 (Association for Computing Machinery Press).Google Scholar
Horty, John. (2004) “The Result Model of Precedent.” Legal Theory 10: 19–31.CrossRefGoogle Scholar
Horty, John. (2007) “Reasons as Defaults.” Philosophers' Imprint 7 available at http://pholosophersimprint.org/007003/.Google Scholar
Kornhauser, Lewis, and Sager, Lawrence. (1986) “Unpacking the Court.” Yale Law Journal, 96: 82–117.CrossRefGoogle Scholar
Lamond, Grant. (2005) “Do Precedents Create Rules? Legal Theory, 11: 1–26.CrossRefGoogle Scholar
Levi, Edward. (1949) An Introduction to Legal Reasoning (University of Chicago Press).Google Scholar
Prakken, Henry, and Sartor, Giovanni. (1998) “Modelling Reasoning with Precedents in a Formal Dialogue Game.” Artificial Intelligence and Law 6: 231–287.CrossRefGoogle Scholar
Raz, Joseph. (2002) Practical Reasoning and Norms, 2nd ed. (Oxford University Press).Google Scholar
Raz, Joseph. (1979) The Authority of Law (Oxford University Press).Google Scholar
Rissland, Edwina. (1990) “Artificial Intelligence and Law: Stepping Stones to a Model of Legal Reasoning.” Yale Law Journal 99: 1957–1981.CrossRefGoogle Scholar
Schauer, Frederick. (1989) “Is the Common Law Law?” California Law Review 77: 455–471.CrossRefGoogle Scholar
Schauer, Frederick. (1991) Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life (Oxford University Press).Google Scholar
Simpson, A.W.B. (1961) “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent.” In Guest, A.G., ed., Oxford Essays in Jurisprudence, 148–175 (Oxford University Press).Google Scholar