Precedent and Legal Authority- A Critical History
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Precedent and Legal Authority- A Critical History
University of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical Historyy: A Critical HistoryCharles w CollierL'rtiwriify of Florida Levin College of Law, colheifd’hwaifl.eduFollow this and additional works at: http://scholarship.law.ufl.edu/facultypubPart of the Courts Commons, Jurisprudence Commons, and the Rule of Law CommonsRecommended CitationChutes w. Collier. Pwe Precedent and Legal Authority- A Critical Historydctif and Legal Authority: A Critical History, 1988 Wis. L Rev. 771 (1988), aroliaWe at http:/./scbobrshi|xUw.ufl>eda'’ii«a>lt}'pub/67SI his Article IPrecedent and Legal Authority- A Critical History
s brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository It has been accepted tor indsisioci in ƯF Uw FacUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical HistoryAND LEGAL AUTHORITY: A CRITICAL HISTORYIn this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh’s concept of dictum, Oliphant’s concept of stare deci Precedent and Legal Authority- A Critical Historysis, and Goodhart’s concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority.Precedent and Legal Authority- A Critical History
The first doctrine, derived from humanistic thought, restricts legal authority as narrowly as possible to the express terms of an original text. The University of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical History two doctrines coexist in a state of essential tension. because legal principles can become non-precedential either by being loo broad and general or by being too narrow and particularized.Charles w. Collier*Legal discourse could not advance far without an underlying notion of “legal authority.” Suc Precedent and Legal Authority- A Critical Historyh a notion is implied in talk about authoritative legal texts and opinions, about “holdings” and “doctrines” of cases, and about the “gravitational foPrecedent and Legal Authority- A Critical History
rce of precedent”—all of which are comparatively common in current legal discussions. Yet, the idea of legal authority itself raises basic questions tUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical History? What makes a case decided in 1409 “good precedent” for determining who is liable for leakage from a gas burner installed in 1929?1 Why is a case about contracting for an incestuous marriage binding on, or even relevant to, the decision in a case of attempted• Assistant Professor of Law, University Precedent and Legal Authority- A Critical History of Florida. B.A. 1972. Reed College; M.A. 1973, M.Phil. 1975. Ph D. 1978, Yale University; J.D. 1985, Stanford Law School.An earlier version of thisPrecedent and Legal Authority- A Critical History
Article was presented as a Senior Thesis at Stanford Law School in 1985.1 would like to thank Bob Gordon and Tom Grey of Stanford for advising me and University of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical Historyhn Monahan. W'altcr Probcrt, Rolf Sartorius. Frederick Schauer. Chris Slobogin. Sally Jan Smith. Laurens Walker. G. Edward White, James Boyd White, and Ann Woolhandler for helpful comments, criticisms, advice, and encouragement. Martha Downey. Paul Healy. Curtis Kinghom. and Brian Solomon provided v Precedent and Legal Authority- A Critical Historyaluable research assistance; the University of Florida Department of History gave me an opportunity to try out these ideas at a faculty colloquium; anPrecedent and Legal Authority- A Critical History
d the University of Florida College of Law supported much of the research on this article with a Summer Research Appointment.I.See Bottomley V. BannisUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical History series of empirical social science studies be said to constitute “modern authority” for a judicial decision?3This Article traces out a general theory of precedent and legal authority through historical sources. It focuses on a particularly influential triumvirate of legal Latinisms: dictum, stare d Precedent and Legal Authority- A Critical Historyecisis, and the ratio decidendi of a case. These concepts are closely related, and each of them has had an important interpreter and expositor in modePrecedent and Legal Authority- A Critical History
rn Anglo-American legal thought: Wambaugh (dictum); Oliphant (stare decisis); and Goodhart (ratio decidendi). One purpose in bringing these concepts aUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical Historyt, reconstruct, and “creatively redescribe” this important chapter in the intellectual history of legal doctrine.4 As Holmes once remarked, “It is perfectly proper to regard and study the law simply as a great anthropological document... as an exercise in the morphology and transformation of human i Precedent and Legal Authority- A Critical Historydeas.”5Sections I, II, and III of the Article are devoted to the three thinkers and concepts mentioned above. In Section IV, I analyze and explain thePrecedent and Legal Authority- A Critical History
emergence of two, distinctly opposed, doctrines of precedential authority. The first doctrine is based on the narrow, deferential reading of originalUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical Historyocial sciences and their corresponding conceptions of scientific authority. Both doctrines are necessary to a full understanding of precedential authority because propositions can become non-precedential either by being too broad and general or by being too narrow and particularized. Thus, the two d Precedent and Legal Authority- A Critical Historyoctrines of precedential authority coexist in a state of “essential tension,” like the thesis and antithesis of a Hegelian dialectic.I. Wambaugh and tPrecedent and Legal Authority- A Critical History
he Traditional Concept of DictumThe term dictum derives from the Latin dicere, “to say,” and refers in legal usage to anything in a judicial opinion tUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical History. 40 Yale L.J. 53, 53-55 & n.4 (1930) (describing other citations, "all equally irrelevant." to the incestuous marriage case).3.See Brown V. Board of Educ.. 347 U.S. 483, 494 & n.ll (1954); cf. Monahan & Walker, Social Authority: Obtaining. Evaluating, and Establishing Social Science in Law. 134 u. Precedent and Legal Authority- A Critical HistoryPa. L. Rev. 477, 483-84 (1986).4.Accordingly, any evaluative or comparative weighing of the merits of the various doctrines I describe will be incidenPrecedent and Legal Authority- A Critical History
tal to my purpose. At many points I do, nevertheless, attempt to make sense of or explain these doctrines, and if an explanation is carried out far enUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical Historystories. 36 Stan. L. Rev. 57 (1984).5.Holmes. Law in Science and Science in Law. 12 Harv. L. Rev. 443, 444 (1899).1988:771 Precedent and Legal Authority: A Critical Historynot, strictly speaking, meant. That which is “obiter dictum” is stated only “by the way” to the holding of a case and does not c Precedent and Legal Authority- A Critical Historyonstitute an essential or integral part of the legal reasoning behind a decision. The concept of dictum has thus been used to distinguish that which iPrecedent and Legal Authority- A Critical History
s significant, authoritative, binding—in short, meant—in a judicial opinion from that which is not. As can be seen, the study of dictum necessarily inUniversity of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal Authority Precedent and Legal Authority- A Critical History in the traditional doctrine of dictum. Nominally, it is a kind of primer for the beginning law student on how to read and interpret reported cases. As Wambaugh notes in his preface, a major aim of the book is to teach students to “detect dicta” and to determine the pertinence and precedential weigh Precedent and Legal Authority- A Critical Historyt of cases.8University of Florida Levin College of LawUF Law Scholarship RepositoryUF Law Faculty PublicationsFaculty Scholarship1988Precedent and Legal AuthorityGọi ngay
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