Precedent Inflation

Front Cover
Transaction Publishers - Law - 371 pages
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Precedents are decisions judges have issued in prior cases. In the common law, precedents are used to determine what the outcome of present cases should be, under the doctrine of "stare decisis, "which stipulates that new cases are resolved by applying legal rules developed in the process of deciding past cases. This volume postulates a relationship between the concept of legal precedent and the means that are used to make specific precedents available to the legal profession. The author concentrates specifically on the effect computer databases such as lexis and westlaw will have on the use of precedent in the common law.

By tracing the history of law reporting, Professor Brenner demonstrates how the Anglo-American conception of precedent has altered over the past seven hundred years, and that these alterations reflect changes in the means used to distribute precedents. She explains why computers will become the primary means of disseminating precedents and describes the evolution and operation of the two on-line services that provide access to precedents by means of computer terminals and modems.

These services--lexis and westlaw-- are operated by private entrepreneurs in the business of providing precedents to the legal profession. Arguing that such services will have a profound effect on the conception and use of precedent, Brenner provides an empirical study of both services to show the effects they have already had, and outlines the conception of precedent that will result from the use of computers as "law reporters." This, she believes, will be a quantitative conception in which judicial decisions will be used in a manner analogous to the use of quantitative data in scientific endeavors.

This study, written with a brilliance often reserved for popular writing at its best, is unique in its application of sociology of knowledge principles to the analysis of law reporting in its examination of citations to approximately 25,000 judicial decisions. It will be of special interest to lawyers, sociologists, and policymakers.

 

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Contents

Introduction
1
The Theory
5
Perspectives
23
The Study
47
Origins of the Rule of Precedent
57
Development of Case Reporters in England
69
Case Reporting in the United States
83
Case Reporters and the Rule of Precedent
111
LEXIS and WESTLAW
175
Putting Unpublished Decisions Online An Empirical Study
191
The Future of Precedent
257
Postscript
311
Appendices
313
Bibliography
335
Explanatory Note on References
357
Index
367

Case Reporters and the Rule of Precedent in Systems Legitimated by RationalLegal Principles
155

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Page 5 - It must not be; there is no power in Venice Can alter a decree established: 'Twill be recorded for a precedent; And many an error, by the same example, Will rush into the state: it cannot be.

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