Chapter

Precedent

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/9780199756148.003.0008
Precedent

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Because judges deciding common law cases have no authoritative statutory or constitutional text to guide them, they must rely on other sources: prior cases, or practices of courts or the legal profession, or customs of the broader community, or evaluative judgments about desirable standards, or a combination of these. This chapter focuses on the first source, analyzing how precedents influence subsequent decisions, which features may constitute their special force, and the relative centrality of the distinction between “holding” and “dictum.” The influence of precedents in legal decisions turns out to be multifaceted, and the distinction between holding and dictum both more complicated and less sharp than the terms suggest. This labeling exercise may be less significant than identifying the degree of freedom judges do, and should, consider themselves to have not to adhere to various aspects of earlier decisions.

Keywords: judges; precedents; common law cases; legal decisions; holding; dictum

Chapter.  11500 words. 

Subjects: Jurisprudence and Philosophy of Law

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