Few areas of human expertise are so well understood that they can be completely reduced to general principles. Similarly, there are few domains in which experience is so extensive that every new problem precisely matches a previous problem whose solution is known. When neither rules nor examples are individually sufficient, problem-solving expertise depends on integrating both. This book presents a computational framework for the integration of rules and cases for analytic tasks typified by legal analysis. The book uses the framework for integrating cases and rules as a basis for a new model of legal precedents. This model explains how the theory under which a case is decided controls the case's precedential effect. The framework for integrating rules and cases is implemented in GREBE, a system for legal analysis. The book presents techniques for representing, indexing, and comparing complex cases and for converting justification structures based on rules and case into natural-language text. This book will interest researchers in artificial intelligence, particularly those involved in case-based reasoning, artificial intelligence and law, and formal models of argumentation, and to scholars in legal philosophy, jurisprudence, and analogical reasoning.
Precedents can also compensate for overgeneral rules by representing exceptions. This approach to using cases to compensate for an inadequate set of rules was used in Anapron, a system for surname pronunciation (Golding and Rosenbloom, ...
Author: L. Karl Branting
Publisher: Springer Science & Business Media
This book presents a computational framework for the integration of rules and cases for analytic tasks typified by legal analysis. The book uses the framework for integrating cases and rules as a basis for a new model of legal precedents.
Author: Luther Branting
Now in its Third Edition, An Introduction to Law and Legal Reasoning continues to be the ideal go-to for the first year law student. It is a short, practical book that introduces beginning law students and others to contemporary law and legal reasoning. By presenting these topics through various discussions of cases and examples, it provides students with a solid source to reference for years to come. A dependable, practical source, that: Covers analogical and deductive reasoning, as well as the roles of legal conventions, purposes, and policies in legal reasoning Discusses cases of varying difficulty to diversify the learning process Presents law and legal reasoning primarily through discussions of cases and examples that avoid the abstraction characteristic of most competing books Emphasizes the law as used in practice by lawyers and judges Provides an explicit and systematic introduction to law and legal reasoning Offers a source suitable for use as supplementary reading in any first year course, in legal research and writing courses, in paralegal courses, and in other settings This great new edition has been carefully updated to include: A new chapter, "Hardest Cases," that highlights cases notorious in the press Updates throughout that guarantee the most current legal information
A dependable, practical source, that: Covers analogical and deductive reasoning, as well as the roles of legal conventions, purposes, and policies in legal reasoning Discusses cases of varying difficulty to diversify the learning process ...
Author: Steven J. Burton
Publisher: Wolters Kluwer
In this study, the author identifies six types of judicial precedent-ideology and are tests them against judicial experiences in various countries.
AN INTERPLAY OF SIMILARITY AND DISSIMILARITY IN PRECEDENT-FOLLOWING : REASONING BY ANALOGY AND DISTINGUISHING Under ... If the specific ruling of a prior case is taken as a model rule to be either followed analogically or cut down by ...
Author: Raimo Siltala
Publisher: Hart Publishing
The Court of Justice of the European Union has often been characterised both as a motor of integration and a judicial law-maker. To what extent is this a fair description of the Court's jurisprudence over more than half a century? The book is divided into two parts. Part one develops a new heuristic theory of legal reasoning which argues that legal uncertainty is a pervasive and inescapable feature of primary legal material and judicial reasoning alike, which has its origin in a combination of linguistic vagueness, value pluralism and rule instability associated with precedent. Part two examines the jurisprudence of the Court of Justice of the EU against this theoretical framework. The author demonstrates that the ECJ's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher, especially constitutional courts, more in degree than in kind. It nevertheless leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'. In conclusion, the Court of Justice of the EU has used the flexibility inherent in its interpretative approach and the choice it usually enjoys in determining the relative weight and order of the interpretative criteria at its disposal, to resolve legal uncertainty in the EU primary legal materials in a broadly communautaire fashion subject, however, to i) regard to the political, constitutional and budgetary sensitivities of Member States, ii) depending on the constraints and extent of interpretative manoeuvre afforded by the degree of linguistic vagueness of the provisions in question, the relative status of and degree of potential conflict between the applicable norms, and the range and clarity of the interpretative topoi available to resolve first-order legal uncertainty, and, finally, iii) bearing in mind the largely unpredictable personal element in all adjudication. Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts.
On the one hand, consistent judicial precedents guiding the interpretation of written rules and self-standing precedents operate to contain and to some extent counter the uncertainty emanating from the vagueness and value pluralism in ...
Author: Gunnar Beck
Publisher: Bloomsbury Publishing
First published in 1998. Routledge is an imprint of Taylor & Francis, an informa company.
2 3 The distinctive attributes of decisional rules are captured in the term that the legal system uses to describe such rules: “precedents.” In ordinary language, a precedent is something done in the past that is appealed to as a reason ...
Author: Scott Brewer
Präjudizien haben heute in den unterschiedlichsten Rechtssystemen eine erhebliche Bedeutung für die juristische Entscheidungsfindung. Umso mehr besteht daher das Bedürfnis, deren Entstehungsbedingungen und deren tatsächlichen Einfluss auf die Praxis zu verstehen. Neben dogmatischen Arbeiten wurden in den letzten Jahren vermehrt Studien publiziert, die mit empirischen Methoden sowie sozialwissenschaftlichen Perspektiven der Praxis nationaler wie auch internationaler Gerichte näherkommen wollten. Das gab Anlass verschiedene theoriebezogene wie auch empirische Forschungszugänge, die im Zuge einer Konferenz präsentiert wurden, gemeinsam in einem Buch zu verbinden. So bietet das Buch unter anderem eine Analyse des Einflusses der linguistischen Praxis auf die Entscheidungsbegründungen des EuGH, die Erstellung eines Zitationsnetzwerks sowie ganz generell die Diskussion über den Wert neuer Methoden und Perspektiven in der Arbeit mit und der Forschung zu Präjudizien.
I build upon several studies, which abandon a narrow version of precedent and the common versus civil law dichotomy, and instead turn to the practical importance, which reasoning with past case law can have. Jan Komárek has for example ...
Author: Amalie Frese
Publisher: Nomos Verlag
From its very beginning, legal informatics was mostly limited to the study of legal databases, but very early on, the Institute of Legal Information Theory and Techniques (ITTIG) started being involved with the specific topic of the Jurix conference, namely knowledge-based systems. This book includes programmatic papers with precise accounts of applications and prototypes. In many domains the focus has changed. For instance, research in retrieval has moved from classical Boolean systems into the management of documents in the Web. It addresses in particular standards and methods for embedding machine readable information into such documents and search methods that deal with heterogeneous information. Similarly, with regard to legal concepts, the focus has moved from thesauri to ontologies or to techniques for the automatic extraction of concepts from natural language texts. In the domain of legal reasoning merely deductive inferences have been expanded with models of legal argumentation, dialogue and mediation. The conference Logica, informatica e diritto 1981 and Jurix 2008 share the connection between theoretical models and the development of applications and prototypes. However, while in 1981 one could mostly see a juxtaposition of papers in legal theory and papers in computer applications, in 2008 we can see how discussions of issues in legal theory are embedded within contributions to legal informatics. This shows how research in legal informatics is increasingly becoming an autonomous domain of scientific inquiry by creatively incorporating and developing knowledge and methods from the two disciplines from which it originates (legal theory and computer science), while preserving links with them.
In other words: a precedent is concrete when perceived as a decision in a case, but generic when perceived as a source ... rules, while for precedent-based reasoning counterarguments often take the form of other, contrasting precedents.
Author: Enrico Francesconi
Publisher: IOS Press
Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use—or should use—in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process. The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases. This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.
Reasoning by analogy: as reasoning by comparison, 83–84, 97; as reasoning by example, 84–87; and reasoning from precedent, ... See also Announced rules; Precedents; Transformation Reasoning from principle, 76–83; and precedents, 77–78; ...
Author: Melvin Eisenberg
Publisher: Harvard University Press
Kent Greenwalt's second volume on aspects of legal interpretation analyzes statutory and common law interpretation, suggesting that multiple factors are important for each, and that the relation between them influences both. The book argues against any simple "textualism," claiming that even reader understanding of statutes depends partly on perceived intent. In respect to common law interpretation, use of reasoning by analogy is defended and any simple dichotomy of "holding" and "dictum" is resisted.
The court's own precedents largely determine the terrain of rules into which a new decision must fit. Now we come to the more complicated issues. Exactly how does reasoning about the common law go forward, and particularly how central ...
Author: Kent Greenawalt
Publisher: Oxford University Press