Full Description
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 comprises of 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.
Contents
Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis: Introduction: The Central Question and Its Ramifications
I. The Nature of Precedent
1: Larry Alexander: Precedent: The What, the Why, and the How
2: Grant Lamond: The Doctrine of Precedent and the Rule of Recognition
3: Sebastian Lewis: On the Nature of Stare Decisis
4: N. W. Barber: Why Precedent Works
5: Adam Rigoni: Precedent and Legal Creep: A Cause for Concern?
6: Hafsteinn Dan Kristjánsson: Elements of Precedent
7: Leah Trueblood and Peter Hatfield: Precedent and Paradigm: Thomas Kuhn on Science and the Common Law
8: Barbara Baum Levenbook: Supplanting Defeasible Rules
9: Brian Leiter: Realism About Precedent
II. Precedent and Legal Argument
10: Claudio Michelon: The Uses of Precedent and Legal Argument
11: Luís Duarte d'Almeida: The 'Expiscation' of Legal Principles
12: Ralf Poscher: The Hermeneutics of Legal Precedent
13: Emily Sherwin: Do Precedents Constrain Reasoning?
14: Amalia Amaya: Precedent, Exemplarity, and Imitation
15: John Horty: How Does Precedent Constrain?
16: Scott Brewer: Precedent, Contest, and Law: A Logocratic Agony That Fits
17: Bruno Celano: Dog Law: On the Logical Structure (or lack thereof) of Distinguishing
18: Cass R. Sunstein: Analogical Reasoning and Precedent
19: Frederick Schauer and Barbara A. Spellman: Precedent and Similarity
III. Precedent and Legal Theory
20: Andrei Marmor: Presumptive Reasons & Stare Decisis
21: Kenneth M. Ehrenberg: An Artefactual Theory of Precedent
22: Nina Varsava: The Gravitational Force of Future Decisions
23: John C.P. Goldberg and Benjamin C. Zipursky: A Precedent-Based Critique of Legal Positivism
24: Fábio Perin Shecaira: Precedent and the Source-Norm Distinction
25: Stephen Perry: Precedent as Generalized Second-Order Reasons
26: Torben Spaak: Reasons Holism and the Shared View of Precedent
IV. Precedent and Judicial Power
27: Dale Smith: Should Courts Follow Mistaken Statutory Precedents?
28: Mikolaj Barczentewicz: Precedent and Law-Making Powers
29: Maris Köpcke: Shaping our Relationship: The Power to Set a Precedent
30: Richard H. Fallon, Jr.: Constitutionally Erroneous Precedent as a Window on Judicial Lawmaking in the U.S. Legal System
31: Lorena Ramírez-Ludeña: Statutory Interpretation and Binding Precedents in the Civil Law Tradition
32: Nils Jansen: The Oracles of Codification: Informal Authority in Statutory Interpretation
33: Hillary Nye: Predictability and Precedent
V. Effects of Precedent in Morality and Law
34: Katharina Stevens: Precedent Slippery Slopes
35: Jeremy Waldron: 'A Previous Instance': Yamamoto and the Uses of Precedent
36: Adam Perry: Consistency in Administrative Law
37: Nicole Roughan: Escaping Precedent: Interlegality and Change in Rules of Recognition
38: Matthew H. Kramer: Hoary Precedents
39: Heidi M. Hurd: Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning
40: Emily Kidd White: Emotions and Precedent
