Philosophical Foundations of Precedent

Author: Timothy Endicott; Hafsteinn Dan Kristjansson; Sebastian Lewis
Publisher: Oxford University Press
ISBN: 9780192857248
Published In: April 2023
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprise well-established leaders in the discipline and new voices in legal philosophy.

The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world.

In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems.

Introduction: The Central Question and Its Ramifications, Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis

I. The Nature of Precedent

1:Precedent: The What, the Why, and the How, Larry Alexander

2:The Doctrine of Precedent and the Rule of Recognition, Grant Lamond

3:On the Nature of Stare Decisis, Sebastian Lewis

4:Why Precedent Works, N. W. Barber

5:Precedent and Legal Creep: A Cause for Concern?, Adam Rigoni

6:Elements of Precedent, Hafsteinn Dan Kristjánsson

7:Precedent and Paradigm: Thomas Kuhn on Science and the Common Law, Leah Trueblood and Peter Hatfield

8:Supplanting Defeasible Rules, Barbara Baum Levenbook

9:Realism About Precedent, Brian Leiter

II. Precedent and Legal Argument

10:The Uses of Precedent and Legal Argument, Claudio Michelon

11:The 'Expiscation' of Legal Principles, Luís Duarte d'Almeida

12:The Hermeneutics of Legal Precedent, Ralf Poscher

13:Do Precedents Constrain Reasoning?, Emily Sherwin

14:Precedent, Exemplarity, and Imitation, Amalia Amaya

15:How Does Precedent Constrain?, John Horty

16:Precedent, Contest, and Law: A Logocratic Agony That Fits, Scott Brewer

17:Dog Law: On the Logical Structure (or lack thereof) of Distinguishing, Bruno Celano

18:Analogical Reasoning and Precedent, Cass R. Sunstein

19:Precedent and Similarity, Frederick Schauer and Barbara A. Spellman

III. Precedent and Legal Theory

20:Presumptive Reasons & Stare Decisis, Andrei Marmor

21:An Artefactual Theory of Precedent, Kenneth M. Ehrenberg

22:The Gravitational Force of Future Decisions, Nina Varsava

23:A Precedent-Based Critique of Legal Positivism, John C.P. Goldberg and Benjamin C. Zipursky

24:Precedent and the Source-Norm Distinction, Fábio Perin Shecaira

25:Precedents as Generalized Second-Order Reasons, Stephen Perry

26:Reasons Holism and the Shared View of Precedent, Torben Spaak

IV. Precedent and Judicial Power

27:Should Courts Follow Mistaken Statutory Precedents?, Dale Smith

28:Precedent and Law-Making Powers, Mikolaj Barczentewicz

29:Shaping Relationships: The Power to Set a Precedent, Maris Köpcke

30:Constitutionally Erroneous Precedent as a Window on Judicial Lawmaking in the U.S. Legal System, Richard H. Fallon, Jr.

31:Statutory Interpretation and Binding Precedents in the Civil Law Tradition, Lorena Ramírez-Ludeña

32:The Oracles of Codification: Informal Authority in Statutory Interpretation, Nils Jansen

33:Predictability and Precedent, Hillary Nye

V. Effects of Precedent in Morality and Law

34:Precedent Slippery Slopes, Katharina Stevens

35:'A Previous Instance': Yamamoto and the Uses of Precedent, Jeremy Waldron

36:Consistency in Administrative Law, Adam Perry

37:Escaping Precedent: Interlegality and Change in Rules of Recognition, Nicole Roughan

38:Hoary Precedents, Matthew H. Kramer

39:Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning, Heidi M. Hurd

40:Emotions and Precedent, Emily Kidd White

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