Precedent Inflation

Capa
Transaction Publishers - 371 páginas

Precedents are decisions judges have issued in prior cases. In the common law, precedents are used to determine what the outcome of present cases should be, under the doctrine of "stare decisis, "which stipulates that new cases are resolved by applying legal rules developed in the process of deciding past cases. This volume postulates a relationship between the concept of legal precedent and the means that are used to make specific precedents available to the legal profession. The author concentrates specifically on the effect computer databases such as lexis and westlaw will have on the use of precedent in the common law.

By tracing the history of law reporting, Professor Brenner demonstrates how the Anglo-American conception of precedent has altered over the past seven hundred years, and that these alterations reflect changes in the means used to distribute precedents. She explains why computers will become the primary means of disseminating precedents and describes the evolution and operation of the two on-line services that provide access to precedents by means of computer terminals and modems.

These services--lexis and westlaw-- are operated by private entrepreneurs in the business of providing precedents to the legal profession. Arguing that such services will have a profound effect on the conception and use of precedent, Brenner provides an empirical study of both services to show the effects they have already had, and outlines the conception of precedent that will result from the use of computers as "law reporters." This, she believes, will be a quantitative conception in which judicial decisions will be used in a manner analogous to the use of quantitative data in scientific endeavors.

This study, written with a brilliance often reserved for popular writing at its best, is unique in its application of sociology of knowledge principles to the analysis of law reporting in its examination of citations to approximately 25,000 judicial decisions. It will be of special interest to lawyers, sociologists, and policymakers.

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Índice

Introduction
1
The Theory
5
Perspectives
23
The Study
47
Origins of the Rule of Precedent
57
Development of Case Reporters in England
69
Case Reporting in the United States
83
Case Reporters and the Rule of Precedent
111
LEXIS and WESTLAW
175
Putting Unpublished Decisions Online An Empirical Study
191
The Future of Precedent
257
Postscript
311
Appendices
313
Bibliography
335
Explanatory Note on References
357
Index
367

Case Reporters and the Rule of Precedent in Systems Legitimated by RationalLegal Principles
155

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Página 146 - Commentaries, remarks, that this law of Nature being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their validity and all their authority, mediately and immediately, from this original...
Página 5 - It must not be; there is no power in Venice Can alter a decree established: 'Twill be recorded for a precedent; And many an error, by the same example, Will rush into the state: it cannot be.
Página 171 - And even more important: the religious valuation of restless, continuous, systematic work in a worldly calling, as the highest means to asceticism, and at the same time the surest and most evident proof of rebirth and genuine faith...
Página 147 - But that a science, which distinguishes the criterions of right and wrong ; which teaches to establish the one, and prevent, punish, or redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community...
Página 15 - Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
Página 149 - Led by a new paradigm, scientists adopt new instruments and look in new places. Even more important, during revolutions scientists see new and different things when looking with familiar instruments in places they have looked before.
Página 51 - An ideal type is formed by the one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to those one-sidedly emphasized viewpoints into a unified analytical construct.
Página 80 - But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law; but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.
Página 137 - In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are at most only evidence of what the laws are ; and are not of themselves laws.
Página 136 - Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind ; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.

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