Chapter

Some Central Questions about Common Law Decisions

Kent Greenawalt

in Statutory and Common Law Interpretation

Published in print November 2012 | ISBN: 9780199756148
Published online January 2013 | e-ISBN: 9780199979523 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199756148.003.0007
Some Central Questions about Common Law Decisions

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This chapter sketches central questions about common law decisions. Among the basic issues about common law determinations are these: How much force do precedents have? What counts as the “holding” or ratio decidendi of a decision? What relation exists between the force and the breadth of holdings? How critical is the division between holding and dictum? What is the place for reasoning from precedents and reasoning by analogy when no precedent binds the court deciding a case? How far do broader principles guide decisions? To what extent are these principles drawn from legal sources, from social evaluations outside the law, from the “best” account judges can provide? How far, if at all, is legal reasoning distinct from other forms of reasoning?

Keywords: common law; precedents; decisions; holding; dictum; reasoning

Chapter.  7577 words. 

Subjects: Jurisprudence and Philosophy of Law

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