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Towards a Theory of Stare Decisis

Martin Shapiro

in On Law, Politics, and Judicialization

Published in print:
2002
Published Online:
November 2003
ISBN:
9780199256488
eISBN:
9780191600234
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/0199256489.003.0003
Subject:
Political Science, Comparative Politics

This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the ... More


Integrity and Stare Decisis

Scott Hershovitz

in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin

Published in print:
2008
Published Online:
January 2009
ISBN:
9780199546145
eISBN:
9780191706462
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199546145.003.0006
Subject:
Law, Philosophy of Law

Many think that stare decisis binds even the highest court in a jurisdiction to follow precedents that were decided incorrectly. But if that is what stare really requires, it is puzzling. What could ... More


Theories of Precedent

Michael J. Gerhardt

in The Power of Precedent

Published in print:
2008
Published Online:
May 2008
ISBN:
9780195150506
eISBN:
9780199871131
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195150506.003.0003
Subject:
Political Science, American Politics

This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal ... More


Analogy and Epistemic Values

Paul F. A. Bartha

in By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments

Published in print:
2010
Published Online:
May 2010
ISBN:
9780195325539
eISBN:
9780199776313
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195325539.003.0007
Subject:
Philosophy, Logic/Philosophy of Mathematics

This chapter provides a defense of analogical reasoning by linking it to standard pragmatic virtues that guide us in the choice of scientific theories. The idea is based on a high‐level analogy ... More


The Patterns of Supreme Court Precedent

Michael J. Gerhardt

in The Power of Precedent

Published in print:
2008
Published Online:
May 2008
ISBN:
9780195150506
eISBN:
9780199871131
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195150506.003.0002
Subject:
Political Science, American Politics

This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to ... More


Law Matters

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

Published in print:
2011
Published Online:
October 2017
ISBN:
9780691151045
eISBN:
9781400840267
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691151045.003.0004
Subject:
Law, Legal History

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial ... More


Introduction

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

Published in print:
2011
Published Online:
October 2017
ISBN:
9780691151045
eISBN:
9781400840267
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691151045.003.0001
Subject:
Law, Legal History

This introductory chapter considers the constraints faced by Supreme Court justices. It begins by discussing the attitudinal model, which assumes that justices are “decision makers who always vote ... More


Causes and Consequences of Diverse Legal Values

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

Published in print:
2011
Published Online:
October 2017
ISBN:
9780691151045
eISBN:
9781400840267
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691151045.003.0005
Subject:
Law, Legal History

This chapter discusses how historical context and personal experiences influence the legal values of justices, but the connections are imperfect and unpredictable. It argues that legal values are not ... More


The Economics of Lawmaking

Francesco Parisi and Vincy Fon

Published in print:
2009
Published Online:
January 2009
ISBN:
9780195374155
eISBN:
9780199871834
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195374155.001.0001
Subject:
Law, Constitutional and Administrative Law

This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional ... More


Path Dependence, Precedent, and Judicial Power

Alec Stone Sweet

in On Law, Politics, and Judicialization

Published in print:
2002
Published Online:
November 2003
ISBN:
9780199256488
eISBN:
9780191600234
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/0199256489.003.0004
Subject:
Political Science, Comparative Politics

This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, ... More


THE SAGA OF CMS: RES JUDICATA, PRECEDENT, AND THE LEGITIMACY OF ICSID ARBITRATION

Charles N. Brower, Michael Ottolenghi, and Peter Prows

in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer

Published in print:
2009
Published Online:
September 2009
ISBN:
9780199571345
eISBN:
9780191705472
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199571345.003.0043
Subject:
Law, Public International Law, Private International Law

The spate of recent investment arbitration cases against repeat-respondent States, as well as the increasingly strident legal and political pushback these cases have begun to engender, call into ... More


Overruling Supreme Court Precedents

Stefanie A. Lindquist and Frank B. Cross

in Measuring Judicial Activism

Published in print:
2009
Published Online:
May 2009
ISBN:
9780195370850
eISBN:
9780199870790
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195370850.003.0007
Subject:
Law, Comparative Law

Although not traditionally viewed as an element of judicial activism, the oft-quoted phrase “legislating from the bench”—commonly employed in political debates over activism—implies the notion that ... More


One Supreme Court: Supremacy, Inferiority, and the Judicial Department of the United States

James E. Pfander

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195340334
eISBN:
9780199867233
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340334.001.0001
Subject:
Law, Constitutional and Administrative Law

Despite over two hundred years of experience with constitutional government, much remains unclear about the power of the political branches to curtail or re-define the judicial power of the United ... More


Introduction

Michael J. Gerhardt

in The Power of Precedent

Published in print:
2008
Published Online:
May 2008
ISBN:
9780195150506
eISBN:
9780199871131
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195150506.003.0001
Subject:
Political Science, American Politics

The introduction provides an overview of the basic arguments in the book. It explains basic terminology used in the book and the likely significance of the book in the voluminous literature on ... More


Stare Decisis, Law Reports, and the Materiality of Legal Form

Ayelet Ben-Yishai

in Common Precedents: The Presentness of the Past in Victorian Law and Fiction

Published in print:
2013
Published Online:
May 2013
ISBN:
9780199937646
eISBN:
9780199333110
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199937646.003.0002
Subject:
Literature, 19th-century and Victorian Literature

This chapter joins recent nineteenth-century legal history scholarship in reconsidering the history, function, and theory of the common law through a long-overdue inquiry into the nature of legal ... More


The Power of Precedent

Michael J. Gerhardt

Published in print:
2008
Published Online:
May 2008
ISBN:
9780195150506
eISBN:
9780199871131
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195150506.001.0001
Subject:
Political Science, American Politics

In this book Professor Michael Gerhardt provides the first comprehensive effort to use both social science methods and conventional legal analysis to explain the role of precedent in constitutional ... More


Conclusion: The Future of Precedent

Michael J. Gerhardt

in The Power of Precedent

Published in print:
2008
Published Online:
May 2008
ISBN:
9780195150506
eISBN:
9780199871131
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195150506.003.0008
Subject:
Political Science, American Politics

In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of ... More


Precedent and the Court of Justice: A Jurisprudence of Doubt?

Takis Tridimas

in Philosophical Foundations of European Union Law

Published in print:
2012
Published Online:
January 2013
ISBN:
9780199588770
eISBN:
9780191741029
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199588770.003.0012
Subject:
Law, EU Law, Philosophy of Law

This chapter examines the doctrine of stare decisis in relation to the first and the third constituency. It looks at the methodology of the European Court of Justice in distinguishing precedent, ... More


Utility, Public Rules, and Common-Law Adjudication

Gerald J. Postema

in Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy

Published in print:
2019
Published Online:
September 2019
ISBN:
9780198793175
eISBN:
9780191835100
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198793175.003.0007
Subject:
Law, Philosophy of Law

A theme running through all of Bentham’s jurisprudential writings is the conflict between the demands for stability and certainty of law and the need for flexibility in adjudication. Although he was ... More


Normative Authority and the Adherence to Precedent by the Court

Gleider I Hernández

in The International Court of Justice and the Judicial Function

Published in print:
2014
Published Online:
August 2014
ISBN:
9780199646630
eISBN:
9780191747854
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199646630.003.0006
Subject:
Law, Public International Law, Legal Profession and Ethics

Using as a starting-point the series of cases involving Yugoslavia throughout the 1990s–2000s, this Chapter examines the Court's public declaration that it will adhere to a relatively strict rule of ... More


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