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RULES AND REASONS IN THE THEORY OF PRECEDENT

  • John F. Horty (a1)

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.

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Aleven, Vincent. (1997) “Teaching Case-Based Argumentation through a Model and Examples.” Ph.D. thesis, Intelligent Systems Program, University of Pittsburgh.
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), 170179 (New York: Association for Computing Machinery Press).
Alexander, Larry. (1989) “Constrained by Precedent.” Southern California Law Review, 63: 164.
Alexander, Larry. (1996) “Precedent.” In Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory, 503513 (Blackwell).
Alexander, Larry, and Sherwin, Emily. (2001) The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Duke University Press).
Alexander, Larry, and Sherwin, Emily. (2007) “Judges as Rule Makers.” In Eldin, Douglas, ed., Common Law Theory, 2750 (Cambridge University Press).
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), 93110 (Association for Computing Machinery Press).
Ashley, Kevin. (1990) Modeling Legal Argument: Reasoning with Cases and Hypotheticals (MIT Press).
Branting, L. Karl. (1991) “Reasoning with Portions of Precedents.” In Proceedings of the Third International Conference on Artificial Intelligence and Law (ICAIL-91), 145154 (Association for Computing Machinery Press).
Branting, L. Karl. (1994) “A Computational Model of Ratio Decidendi.” Artificial Intelligence and Law 2: 131.
Cross, Rupert. (1968) Precedent in English Law, 2nd ed. (Oxford University Press).
Dancy, Jonathan. (1993) Moral Reasons (Basil Blackwell Publisher).
Dancy, Jonathan. (2004) Ethics without Principles (Oxford University Press).
Goodhart, Arthur. (1930) “Determining the Ratio Decidendi of a Case.” Yale Law Journal 40: 161183.
Hooker, Brad, and Little, Margaret. (2000) Moral Particularism (Oxford University Press).
Horty, John. (1999) “Precedent, Deontic Logic, and Inheritance.” In Proceedings of the Seventh International Conference on Artificial Intelligence and Law (ICAIL-99), 6372 (Association for Computing Machinery Press).
Horty, John. (2004) “The Result Model of Precedent.” Legal Theory 10: 1931.
Horty, John. (2007) “Reasons as Defaults.” Philosophers' Imprint 7 available at http://pholosophersimprint.org/007003/.
Kornhauser, Lewis, and Sager, Lawrence. (1986) “Unpacking the Court.” Yale Law Journal, 96: 82117.
Lamond, Grant. (2005) “Do Precedents Create Rules? Legal Theory, 11: 126.
Levi, Edward. (1949) An Introduction to Legal Reasoning (University of Chicago Press).
Prakken, Henry, and Sartor, Giovanni. (1998) “Modelling Reasoning with Precedents in a Formal Dialogue Game.” Artificial Intelligence and Law 6: 231287.
Raz, Joseph. (2002) Practical Reasoning and Norms, 2nd ed. (Oxford University Press).
Raz, Joseph. (1979) The Authority of Law (Oxford University Press).
Rissland, Edwina. (1990) “Artificial Intelligence and Law: Stepping Stones to a Model of Legal Reasoning.” Yale Law Journal 99: 19571981.
Schauer, Frederick. (1989) “Is the Common Law Law?California Law Review 77: 455471.
Schauer, Frederick. (1991) Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life (Oxford University Press).
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, 148175 (Oxford University Press).
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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
  • URL: /core/journals/legal-theory
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