Administrative / Constitutional Law

Philosophical Foundations of Precedent

Edited by Timothy Endicott · Hafsteinn Dan Kristjansson · Sebastian Lewis
Oxford University Press April 2023

Specifications

ISBN-13
9780192857248
Publisher
Oxford University Press
Publication
April 2023
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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.

Table of Contents

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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