Law in the Making

Allen, Carleton Kemp

doi:10.2307/1114499

Cited by 5 publications

(4 citation statements)

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“…Despite the acknowledged importance of this norm, no scholarly study to date has explained when or why it originated and developed in the United States. Indeed, although legal historians generally agree that the idea that past cases are binding did not exist prior to the late 18th century, there is no consensus concerning when this norm became institutionalized (e.g., Kempin 1959;Allen 1964;Jones 1975). One could use the data discussed above-especially the patterns in the citation and following of precedent-to determine when the norm originated and developed in the American judiciary and to test an explanation for its institutionalization.…”

Section: Network Analysis and The Lawmentioning

confidence: 99%

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

et al. 2007

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We construct the complete network of 26,681 majority opinions written by the U.S. Supreme Court and the cases that cite them from 1791 to 2005. We describe a method for using the patterns in citations within and across cases to create importance scores that identify the most legally relevant precedents in the network of Supreme Court law at any given point in time. Our measures are superior to existing network-based alternatives and, for example, offer information regarding case importance not evident in simple citation counts. We also demonstrate the validity of our measures by showing that they are strongly correlated with the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court. In so doing, we show that network analysis is a viable way of measuring how central a case is to law at the Court and suggest that it can be used to measure other legal concepts.

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Section: Network Analysis and The Lawmentioning

confidence: 99%

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

et al. 2007

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“…Judicial procedure in the British law courts embodied the abstract normativity of the law, particularly through doctrines such as "stare decisis," by which every new judgment was related to precedents of past judgments that were contained in the law reports, so that the law appeared not as an arbitrary decision deriving from the will of the King or Judge, but as a natural and just order of things handed down through the ages as common law. 43 According to the discourse of jurisprudence, it was not persons, authorities and administrators that ruled, but the law itself. Governors ruled only in so far as they followed the norm.…”

Section: A Legislator In the Courtroommentioning

confidence: 99%

Sedition, Law, and the British Empire in India: The Trial of Tilak (1908)

Mukherjee

2017

Law, Culture & the Humanities

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This article is a historical inquiry into the sedition trial in 1908 of Bal Gangadhar Tilak, one of the most important anticolonial leaders in twentieth-century India. It argues that Tilak, in the grand spectacle of this political trial, rejected the British discourse of imperial justice that had served as the ground of the British Empire until then, and claimed a new discourse of legislative freedom for the people of India. The trial thus marked a fundamental discursive rupture in the history of empire and paved the way for mass anticolonial movements under the leadership of Gandhi.

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“…1964;1985;Summers and Eng, 1997). It is possible because the judge who decides a case cannot …x unambiguously its ratio decidendi; instead, the rule he had the power to establish is determined by later courts (Cardozo, 1921;Allen, 1927;Radin, 1933;Cohen, 1935;Frank, 1949;Montrose, 1957;Llewellyn, 1960;Dias, 1985;Posner, 1990;Garner, 2004). As a consequence, distinguishing can con…ne the authority of a precedent to its particular facts, however narrowly construed (Llewellyn, 1930;Stone, 1964;Cross and Harris, 1991).…”

Section: Counterfactual Models Of Distinguishingmentioning

confidence: 99%

Stare Decisis: Rhetoric and Substance

Fernández

Ponzetto

2008

SSRN Journal

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Stare decisis allows common law to develop gradually and incrementally. We show how judge-made law can steadily evolve and tend to increase e¢ ciency even in the absence of new information. Judges'opinions must argue that their decisions are consistent with precedent: this is the more costly, the greater the innovation they are introducing. As a result, each judge e¤ects a cautious marginal change in the law. Alternative models in which precedents are either strictly obeyed or totally discarded would instead predict abrupt large swings in legal rules. Thus we …nd that the evolution of case law is grounded not in binary logic …xing judges'constraints, but in costly rhetoric shaping their incentives. We apply this …nding to an assessment of the role of analogical reasoning in shaping the joint development of di¤erent areas of law.

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Law in the Making

Cited by 5 publications

References 0 publications

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

Sedition, Law, and the British Empire in India: The Trial of Tilak (1908)

Stare Decisis: Rhetoric and Substance

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