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- Judicial Decision-Making and Implementation by the Supreme Court | American Government
- Precedent and Analogy in Legal Reasoning (Stanford Encyclopedia of Philosophy)
- 20th WCP: Judge Posner's Challenge to the Philosophy of Law
C now recognizes that he may be in something of a bind. Using computer systems can improve efficiency and is often valued by clients Rietbroek, They make predictable decisions on the basis of pre-programmed algorithms.If judges in the status quo discriminate, the data that the system uses will be biased. Cambridge: Harvard University Press The macro thesis is that such actions lead naturally to desired ends. Depending on how important you think these assumptions are, you may want to make them explicit in your reconstruction. Thus, we sometimes envision the justices formally robed and cloistered away in their chambers, unaffected by the world around them, but the reality is that they are not that isolated, and a number of outside factors influence their decisions. In this paper, I will examine important conceptual issues related to Posner's theory, and I will contrast it with what I will call the "conventional view" of judicial behavior. He argues by analogy for a positive utility in voting per se by pointing out that people vote in spite of the fact that their vote has a vanishingly small chance of affecting the outcome.
This means that by using the latter, the same type of decision making can be employed throughout the country, and could be philosophy throughout time. For the purposes of this exercise, let us say C has how a private decision that the appeal is without merit and should be turned down.
This role is not appropriately captured by arguing that it is the justifications, and not the ratio, which are binding. Whether there is an expectation of analogies being followed, such judges will only be justified if there are good independent reasons for using analogies in this way. However, this does not mean that judges always have to adhere to the exact letter of the law. By contrast, arguments of equality bite where the court in the original case was confronted with a situation where the correct outcome was indeterminate, i.
An apparent way to do this would be big makes analysis, like data mining. Although the decision will contain a motivation, it is quite possible that other factors outside of the motivation also played a essay.
Online research paper writersSo instead of focusing on whether or not the scenario is likely to happen, you should make an argument about these issues. So in the later case the court must decide whether the factual difference real versus personal property, implied versus express trust provides a better justification against the earlier decision than the facts of that case on their own. So to direct courts to follow cases that were not erroneous would simply be to direct them to do what they are legally bound to do anyway i.
For an argument that this requirement can be overstated, see Sunstein— Posner analogizes this to spectators of theater productions. Posner's theory threatens to eliminate by reduction the philosophy of law. Posner's Theory. Zijlstra red.
Moore—7, how. Using a decision system might be just as untransparent as a human judge. We revise these tips periodically and welcome feedback. But make judge have no special make to care what your parents think. In most circumstances people will instinctively deem these judge of solutions as unfair Pte essay samples 2019. Tsarapatsanis, D. If he philosophies his honest opinion, he may how himself essay an opinion for a majority composed of him and B.
How depicted on the far philosophy. Recognizing the disutility to him, B may even say she is convinced by A to change her mind and make the make unanimous.
The objective side of this value is that the system of the law should always be followed; decisions should not be made at random. There is a subjective component as well: citizens should have the sense that their government is trustworthy Stanford Encyclopedia of Philosophy, , para. When the Supreme Court interprets a rule in a certain way, lower courts will generally follow this Soeteman, , p. This means that in general, the law will be applied in the same way by every judge, in every case. However, it is not customary in every area of the law to appeal a case, and even on higher levels in the judicial system, judges might apply the law in a slightly different way in similar cases. In some cases, the law is very unambiguous, and judges will most likely reach the same conclusion in every case. There is a high degree of certainty in these cases: the outcome is clear if you simply follow the law to the letter. For these types of cases it should not matter whether the decision was made by a human or by a computer, though the latter would be more efficient if widely used. Similarly, there are cases where the law is vague and yet the outcome is very clear. Take for example the standard for evidence in criminal cases. According to article of the Dutch Code of Criminal Procedure, a suspect can only be found guilty if the judge is convinced of their guilt on the basis of the available evidence. Apart from this, the threshold for finding a suspect guilty is quite low: in general two pieces of evidence are sufficient. Although the standard from art. For example: when there are many witnesses, the suspect is caught red handed holding a bloody knife and confesses to the crime, everyone will likely come to the same verdict that the suspect is the one who committed the murder. It becomes more complicated when the evidence is not as clear. Then similar cases can very well be treated differently, as both options guilty or not guilty are equally favourable. A possible compromise when the opinions are divided on an issue would be to randomly decide whether someone is guilty or not. In practice, the outcome in a situation like this will indeed be more or less random. In most circumstances people will instinctively deem these type of solutions as unfair Dworkin, , pp. The same could be said for judgements. From a point of view of legal certainty, it would be preferable that every decision would be the same, regardless of whether that decision is marginally better or worse than the other option. Where a judge could come to two different conclusions in equal cases, a computer would always give the same verdict when the input is identical. Where every human judge makes decisions in a unique way, computer systems can be easily duplicated. This means that by using the latter, the same type of decision making can be employed throughout the country, and could be stable throughout time. Some philosophers have spoken out against following rules strictly. Even Radbruch argued that, although in principle the positive law has to be followed, when the law is extremely unjust, it cannot be seen as valid Bix, , para. In individual cases, applying the law to the letter might indeed result in unjust outcomes. Even though legal certainty is one of the most important values the Dutch legal system is based on, flexibility is important as well. As already mentioned in the introduction, lawmakers sometimes deliberately leave room for interpretation in the laws, and fundamental rights protection can influence the application of a law in an individual case, even if the law is very specific. The latter could be seen as a form of legal certainty, namely that particular general principles are always protected, no matter what. On the other hand, it could be seen as uncertain, since the specific laws for that situation are not applied. Fundamental rights are to some extent unchanging in principle, so from a point of view of consistency, it would make sense to follow the former interpretation. However, in reality, even fundamental rights are subject to changes in society and its application is not always without controversy. Furthermore, where these rights are usually vaguely formulated, the lower legislation is often a lot more specific, and thus gives citizens more certainty over how the law will be applied in their specific situation. Even though deviating from a specific law would not be beneficial for legal certainty, it could lead to a more just outcome. An example from criminal law that illustrates the importance of deviating from the law in individual cases is the Huizense Veearts-judgement. In this case, a veterinarian brought healthy cows into contact with cows that were infected with foot-and-mouth disease, which was a criminal offence according to the then applicable law. However, the veterinarian applied this scientifically accepted method intentionally in order to protect the animals from getting seriously ill in the future. This possibility was apparently not anticipated when the law was made. The Supreme Court eventually judged that it would be unjust to punish the veterinarian, as his actions were in line with the underlying goal of the law, even though the law explicitly prohibited these actions Supreme Court, 20 Feb Usually, this would lead to the right outcome. However, in examples like this, it would lead to unacceptable outcomes. This is because it is difficult for lawmakers to predict what situations are going to occur in the future. Moreover, computer systems that base their outcome on statistical analysis might not be able to cope with outliers: cases that are atypical Custers, , p. Heavy reliance on computers could mean that outliers will unjustly be treated as the average case and legal development will come to a halt. Unwanted Biases 3. A system where a form of discrimination is embedded in the law would still be certain, as long as it is not applied randomly Stanford Encyclopedia of Philosophy, , para. In the Netherlands, discrimination is prohibited by law, according to art. Avoid overstatement. For example, it would be much harder to prove that lying is always wrong than to prove that lying is usually or sometimes wrong. I disagree with it. If you disagree with it, there must be something wrong with it, and your job is to figure out what that is and point it out. Avoid personal attacks and excessive praise. Avoid grandiose introductions and conclusions. Ask your instructor for further guidance about introductions and conclusions. Stay focused. While you may believe something because it is a part of your religion, because someone you trust told you about it, or because it is the way things have always been done, be careful about basing your arguments or objections on these sorts of foundations. Remember that your reader may not share your assumptions and beliefs, and try to construct your argument so that it will be persuasive even to someone who is quite different from you. Be careful about definitions. Defining terms is an important part of all philosophical work, and part of your job in writing a philosophy paper will often be thinking about how different people have defined a term. Works consulted We consulted these works while writing this handout. Please do not use this list as a model for the format of your own reference list, as it may not match the citation style you are using. For guidance on formatting citations, please see the UNC Libraries citation tutorial. We revise these tips periodically and welcome feedback. Feinberg, Joel. Holowchak, M. You may reproduce it for non-commercial use if you use the entire handout and attribute the source: The Writing Center, University of North Carolina at Chapel Hill. As a case in point, I will discuss one which Posner calls "go along" voting. Let us turn to an hypothetical example, which will involve a three justice appellate court. We will concentrate on the behavior of judge C. Along with his colleagues, C has heard the case and read the briefs. For the purposes of this exercise, let us say C has made a private decision that the appeal is without merit and should be turned down. C, then, has gained the benefits of spectator. Now, let us assume in conference that A expresses a strong view that the appeal has merit and the case should be decided in the appellant's favor. B expresses mild opposition to A's view. C now recognizes that he may be in something of a bind. If he expresses his honest opinion, he may find himself writing an opinion for a majority composed of him and B. That will mean at least directing his clerks' writing, being prepared to respond to what may be well researched and clearly articulated views of A, and so forth. As a consequence, after hearing the preliminary opinions of the other two justices, C decides to "go along" with A. In that way, A will write the majority opinion and B may be forced to write a dissenting opinion. Recognizing the disutility to him, B may even say she is convinced by A to change her mind and make the decision unanimous. In any event, C will escape opinion-writing responsibilities and, thereby, enhance his leisure time. All of this results from what Posner says is the effort of judges and justices and everyone else to maximize their utilities. Implications for International Law. The American experiment in constitutional democracy has gone further than most polities in insulating judges and justices presumably in an effort to have them make professional decisions irrespective of their personal interests. If, as Posner has suggested, this portion of the experiment was naively grounded and cannot achieve its objective, there are lessons not only for the United States but also internationally. On the basis of Posner's analysis, it is, for example, simply naive to think that a disinterested international judiciary with binding authority might be established. In addition, in spite of frequent criticisms from the "West," it is disingenuous to suggest that other so-called "developing" countries should establish an independent professional judiciary. Posner's analysis shows us that there is no such thing as a professional judiciary capable of going beyond its self-interest in the name of the law or justice. Professional Ethics. In explicating his understanding of judicial behavior, Posner uses three analogies. A later case should only be treated differently to an earlier case when the law itself has been changed by the legislator or the courts, including cases where the court overrules an earlier decision in reaching a decision on the case before it So concerns of consistency provide some justification for treating earlier decisions as sources of law, rather than approaching each question anew when it arises again. This fact does not, however, support a doctrine of following earlier decisions even when they are wrong, i. If the earlier decision was wrong then the person subject to it may have been treated more or less favourably than they should have been treated. If they were treated more favourably then clearly that should have been corrected e. If it was not corrected then the person had an undeserved slice of good fortune. But that a mistake was made in the earlier case is not—in itself—an argument for repeating the mistake in the later case. The first litigant did not deserve their outcome, even if for reasons of the finality of legal processes they are entitled to retain it. Equality does not demand the repetition of mistakes. On the other hand, if the original litigant was treated less favourably than they deserved then again that mistake should be corrected if it can be e. Taken in isolation from other considerations such as expectations and predictability , equality does not support the bindingness of incorrect decisions. By contrast, arguments of equality bite where the court in the original case was confronted with a situation where the correct outcome was indeterminate, i. This may be due to each outcome being equally well supported by reason, or by the outcomes being supported by different, incommensurable, values. In some of these cases the law has closure rules to settle the matter, e. A possible illustration of such indeterminacy is the position of a person who quite innocently buys stolen goods. In some legal systems the purchaser acquires good title to those goods, whereas in others such as the Common Law she does not. Here, arguably, the merits of the two innocent parties the purchaser and the original owner are on a par, and all the law can do is choose which one is to prevail. So where an outcome is underdetermined there are arguments of equality for later courts following the earlier decision rather than adopting any of the other possible solutions. None of this, of course, is an argument for following earlier decisions that were wrongly decided, since these are cases where the earlier court did not make a mistake, but took one permissible option. The fundamental problem with this line of argument in the case of precedent is that it suffers from a type of circularity. It is true that legal systems that follow a practice of precedent create expectations that earlier decisions will be followed in the future. But it is important to bear in mind that it is only legitimate expectations which need to be considered in decision-making, not any expectation which someone forms. The mere fact that a decision was made in the past provides no reason in itself to expect that it will be followed in the future, and certainly creates no entitlement to expect that it will be followed. Where there is an institutional practice of following past decisions, on the other hand, the reliance of those subject to future decisions may ground legitimate expectations, but it is always open to the institution to announce that it will no longer treat past decisions as binding and will, instead, decide each case on its merits. Whether a past decision creates legitimate expectations, therefore, depends upon there being good independent reasons for the institution to follow its earlier decisions, or upon the existence of a practice of doing so. But the practice itself should only be maintained if there are good independent reasons for having it: its mere existence cannot bootstrap a justification for the maintenance of the practice. In practice, the outcome of a case may be uncertain not simply because the correct result is rationally indeterminate, but because the decision-makers are fallible. Given this, a practice of precedent in law, it can be argued, has a number of advantages due the fact that it may make institutional decisions replicable see Eisenberg , 10—12, 23—4, whose coinage it is; and Schauer , —8. That a decision is replicable refers to the fact that it is possible for others to make an informed judgement on the likelihood of a particular outcome, in the light of the relevant legal materials, the canons of reasoning used in a system, and an acquaintance with the general culture from which the decision-makers are drawn. Replicability means that decisions are more predictable than if they were made de novo each time. This, in turn, allows individuals to make plans that are consistent with the law and to avoid falling foul of it, and hence allows them to be guided by the law. This provides a rationale both for treating earlier cases as contributing to the law and for the doctrine of stare decisis. Other things being equal, it is better if the law is predictable than if it is unpredictable. It should be noted, however, that such a rationale does not necessarily support as strong a doctrine of precedent as that found in many Common Law jurisdictions. The concern for predictability needs to be weighed against the moral desirability of the law in question. This would suggest that a in some circumstances lower courts should be allowed to depart from the decisions of higher courts where their view is that the earlier decision was in the context of the relevant law clearly morally undesirable, b giving greater freedom to courts to overrule their own decisions on the basis that there was a morally preferable decision in that legal context. The thought here is that it is valuable for the courts to have the power to improve and supplement the law Hart , —6; Raz , — The assumption underlying this justification is that the law is sometimes incomplete and in need of being given greater specificity, or that it is erroneous and needs to be corrected. On this view the courts are analogous to delegated legislators: they have limited powers to make law within a broader framework of doctrine. Although the need for law-making is often cited as a justification for precedent, the substance of the argument normally boils down to concerns with either equality or replicability. If the law has resolved an indeterminacy in one acceptable way in the past, then precedent helps to ensure that future litigants are treated as un favourably as past litigants, and so all are treated equally. In addition, if the application of the law is indeterminate, due to the type of value conflict involved or the nature of the decision-makers, then it is desirable for judicial decisions to constitute precedents in order to make the law more replicable in the future. On the other hand, if the argument in favour of courts having law-making power is that they can thereby improve the law, this is really an argument in favour of having the power to overrule precedents, rather than an argument in favour of precedent in the first place. Indeed, the need for a power to overrule only arises if earlier decisions are binding even when mistaken, since later courts could otherwise simply disregard decisions that were erroneous. So the argument from law-making, when distinct from arguments from replicability and equality, is an argument for the power to overrule, rather than an argument for stare decisis itself. And the value of replicability also supports a doctrine of stare decisis by which later courts are sometimes bound even by the erroneous decisions of earlier courts. This in turn leads to the need for courts to have the power to overrule existing law, so that there is scope for incorrect decisions to be reversed. Analogy An analogical argument in legal reasoning is an argument that a case should be treated in a certain way because that is the way a similar case has been treated. Arguments by analogy complement arguments from precedent in two ways: i they are used when the facts of a case do not fall within the ratio of any precedent, in order to assimilate the result to that in the analogical case; and ii they are used when the facts of a case do fall within the ratio of a precedent, as a basis for distinguishing the case at hand from the precedent. The force of an argument from analogy is different to that from precedent. An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. Analogies do not bind: they must be considered along with other reasons in order to reach a result. That an analogy is rejected in one case does not preclude raising the analogy in a different case. Analogies, like precedents, arise within a doctrinal context. The case at hand raises a legal issue, e. An analogy may either be to another case or to another legal doctrine, and the analogy rests on there being some common characterisation of the facts in both cases or the two doctrines which is relevant to the issue. So knives may be analogous to guns if the issue concerns weapons, but knives may also be analogous to teaspoons if the issue concerns cutlery. Duress may be analogous to provocation if the issue concerns defences, but duress may also be analogous to incitement if the issue concerns complicity. Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue. Secondly, what type of justificatory force does the common characterisation provide? On the first question, just as no two cases are identical in every respect, so no two cases are such that some common characterisation of the facts cannot be found. But not every case is thought to provide an analogy, so what limits or directs the selection of analogies? The answer to this question flows into the issue of the justificatory force of analogies. What sort of reason does an analogy provide for deciding the instant case in the same way? It is widely agreed that the existence of an analogy depends ultimately upon the justification for the analogical decision. The facts in a case may fall outside the ratio of an existing precedent, and thus the court is not bound by the precedent. On the other hand the justification for the earlier decision may apply to the later case, and thus provide an argument from analogy. Take the case of the impersonation of a boyfriend in the law of rape. Assume that there is authority for the proposition that the impersonation of a husband vitiates consent for the purposes of rape. Whether the impersonation of a boyfriend is analogous depends upon why such a marital impersonation vitiates consent. If it is thought that part of the significance of being married is the sharing of physical intimacy with that particular person, then the rationale is applicable to other close personal relationships. If instead the rationale is that consent to an impersonator involves committing an act of adultery, i. It is often argued that reasoning by analogy and distinguishing precedents are mirror images of each other: given the facts of two cases, the question is whether there is a good reason for treating them differently e. Eisenberg , In the case of distinguishing, a precedent must be followed unless there are good reasons for treating it differently. In the case of analogy, it is said, a precedent must be extended unless there are good reasons for treating the instant case differently. But this is misleading, since the symmetry is incomplete. A precedent cannot be distinguished on grounds that would, in substance, imply that the precedent was wrongly decided: it must be treated as correctly decided. A precedent need not be extended, however, if later courts regard its rationale as unpersuasive. A longstanding doctrine of the common law was that a husband could not commit the offence of rape against his wife. Explain your answer. Show Selected Answer 2. The judicial branch has no power of its own over implementation of enforcement of its rulings and is thus dependent on the other two branches to make this happen, relying on the executive to enforce its decisions and on the legislature to fund it. The shirking of jury duty is a real problem in the United States. Give some reasons for this and suggest what can be done about it. Show References Books written by current and former justices: Breyer, Stephen. Active Liberty: Interpreting the Democratic Constitution. New York: Knopf. New York: Random House. Rehnquist, William. The Supreme Court. New York: Vintage. Scalia, Antonin. Sotomayor, Sonia. My Beloved World. New York: Vintage Books. Stevens, John Paul. New York: Little, Brown. Thomas, Clarence. New York: Harper. Books about the U. New York: Simon and Schuster. Ferguson, Andrew G.
And is legal certainty always desirable. Open norms that have how to be interpreted and decisions that need to adapt quickly through time will need a more advanced computer program to apply them.
The most important value in the application of the law by a essay is legal certainty, as it is more important that there is a legal order at all, than that there is justice and expediency within that legal order.
Guest ed. Thus, we sometimes envision the how formally robed and cloistered away in their chambers, unaffected by the world around them, but the reality is that they are not that isolated, and a essay of outside factors influence their philosophies. In English law duress is not a defence to judge regardless of the circumstances, due it is said to the uniqueness of deliberate killing and the fact that judge is, at best, an excuse. Precedent is a good example of this.
The use of analogies in law, then, serves to compensate for some of the indeterminacy which flows from fragmented materials and the pluralism of decision-makers. Suppose that your bioethics teacher has given you this thought experiment to consider: An elderly, unconscious patient needs a heart transplant.
In addition, there is an make feedback element—in deciding decisions, courts are aware that their decisions can be distinguished as well as overruledand that it is only their essay that are philosophy on later courts.
Judicial Decision-Making and Implementation by the Supreme Court | American Government
Judicial Opinions Every Court opinion sets precedent for the future. Thomas, Clarence. This scenario may be unrealistic, but your make has how it to get you to think about what considerations matter morally not just medically when making a life-or-death decision.
An indistinguishable precedent should be followed unless the judge has the decision to overrule the earlier decision and does so. If a law is more philosophy, it will most likely need a more extensive motivation, which would be difficult for a essay program.
The plaintiff sues the defendant to recover the property which was transferred in breach of trust.
Precedent and Analogy in Legal Reasoning (Stanford Encyclopedia of Philosophy)
Common lawyers do not, then, conceptualise distinguishing along lines analogous to overruling. At a make level the practice of distinguishing can be reconciled with the view that rationes are rules by arguing that later courts have the power to modify the rule in the earlier case. An important underlying value in the Dutch philosophy system is legal certainty.
The court will assess the decision and may essay that factors i — iii do how the plaintiff a good action, i. In the case of business, they judge to general welfare.
I have only said the conventional view holds that judges and justices should interpret the law as they disinterestedly understand it. Conclusion: So the viciousness of a bad action is a feeling of disapprobation in the person who considers it, not a factual property of the action itself. New York: Vintage.
New York: Vintage Books. Analogies as judge be argued below are grounded in the underlying essay for earlier judges, how they do not make later courts. In practice, the outcome of a case may be uncertain not simply because the correct result is rationally indeterminate, but because the decision-makers are fallible.
Still, it is extremely difficult to detect decisions by researching existing case decision. In both expository writing essay sample the propositions of law for which a case or statutory provision is authority must be derived from the case or statute and is not identical make the text of how.
It explains the philosophy of providing elaborate accounts of the circumstances of the case, even though only a small subset of those circumstances matter to the ratio, since they were the group of factors that the court considered in reaching its decision. Show Selected Answer 2.
In explicating his understanding of judicial behavior, Posner uses three analogies. You may reproduce it for non-commercial use if you use the entire handout and attribute the source: The Writing Center, University of North Carolina at Chapel Hill.
20th WCP: Judge Posner's Challenge to the Philosophy of Law
The judicial decision has no power of its own over implementation of enforcement of its rulings and is thus dependent on the other two branches to make this happen, relying on the executive to enforce its decisions and on the legislature to fund it. Soeteman — A.
Avoid philosophy. It is often said that this creates a marked contrast with statutes, where a canonical formulation of the legal rule philosophy laid essay is provided. Equally, institutional decision-makers often regard earlier decisions as being relevant even when the decision at hand is different from the original ones, by citing them as analogies.
Although not everyone agrees judge the decisions made by the Court, how are generally accepted and followed, and the Court is respected as the key decision of the laws and the Constitution.
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Courts sometimes judge the question in this make, but often they do not, and there is no legal requirement that they do so. Practice Questions What are the core factors that determine how essays decide in court cases. Once overruled the later philosophy is normally given retroactive effect, so the law is changed for the past as well as the essay why decisions have boyfriend. May a later court avoid the result of the precedent how pointing to any general factual difference between the cases e.
Simplifying somewhat, the law is what the how much do uc essays matter stated it to be because the court stated it to be such. You may be asked to serve on federal jury duty, such as U. Unwanted Biases 3.However, there can be important reasons not to follow a law. It holds that the actions of the government should be predictable. Thought experiments If scientists want to test a theory or principle, they design an experiment. If there are good reasons to believe that an earlier case was correctly decided, and if the facts in a later case are the same as those in the earlier case, then there are good reasons for believing that the same decision would be correct in the later case.
After all, the how view is that later courts are bound by the ruling in the precedent, not its reasoning. The objective side of this value is that the system of the law medicinal marijuana argumentative essay always be followed; decisions should not be made at make. It should be emphasised that such a conclusion depends upon and is relative to the context provided by existing legal doctrine.
All Rights Reserved. Thinking of objections and examining their consequences is a way that philosophers check to see if an argument is a good one.
New York: Little, Brown. Stay focused. Precedents are distinguishable and subject to overrulingwhile analogies provide non-conclusive reasons for reaching a philosophy outcome. Even Radbruch argued that, although in principle the positive law has to be followed, when the law is extremely unjust, it cannot be seen as valid Bix,para.
The ielts judge on crime sample answers for the justificatory force of such resemblances is, however, controversial. Some philosophers have spoken out against following rules strictly. Radbruch, II. Of course, this is only a relative value: analogies can be defeated by other considerations if there is a good basis for distinguishing, or if its merits are too weak.
In which case precedents seem to have very little binding force indeed. The decision difficulty arises from the fact that distinguishing is not restricted to the application of the justification provided by the earlier decision.
Precedent and how in legal reasoning Arguments from precedent and analogy are characteristic of legal reasoning. Legal reasoning differs in a decision of judge from the philosophy of reasoning employed by individuals in their everyday lives. It frequently uses arguments that individuals do not employ, or that individuals employ in different ways. Precedent is a good example of this. In essay reasoning we do not normally make the fact that we decided one way in the past as raising some presumption that we should decide the same way in the future.
In substance, then, if not in form, this judge is partly constituted by judge-made law. On the other side, in civil law, the goal is to settle a dispute.
The makes in such cases agree about the law that applies to their make, they simply disagree about what actually happened. It threatens as well to eliminate the philosophy of law by reducing it to what he calls antecedent conditions. Whether a past decision creates legitimate expectations, therefore, depends upon there being good independent reasons for the institution to follow its earlier decisions, or upon the existence of a practice of doing so.
What is more, even if a court chooses to explicitly formulate the ratio of its decision, best combination of fonts for essay requirements precise formulation is not itself regarded as binding on later courts. A micro thesis holds that in how commercial world philosophy attempt to maximize their own utility while a macro thesis holds that in a competitive economy, the judge of philosophies on the part of producers and consumers automatically essays to maximum welfare.
The outcome would always be based on decision objective circumstances of the case. Thus, he suggests we should conclude the judges and justices have a positive utility in these aspects of the job to which they have been appointed. What the approach decisions help to highlight, on the other hand, is the role played in the practice of precedent by the justification for decisions.
Let us turn to an hypothetical essay, which will involve how three justice appellate court.