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For some seventy years, rulings made by judges sitting at nisi prius were regularly reported, despite those reports being held in low esteem by the legal profession and such rulings being regarded as of little value as precedents. This article considers why those rulings, at least on matters of substantive law, were rejected as authorities, and sets out the reasons why they were nevertheless reported and cited. The article explains that the principal purposes of these reports were to introduce new members of the profession to the practicalities of preparing cases for trial, and to provide some authority, however slight, to cite in court. The article also explains that, while nisi prius rulings on substantive law were cited by nineteenth century judges, they were used differently to decisions of courts in banc. The greater authority of such rulings on points of evidence, at least up to the mid-nineteenth century, is also explored. The article concludes by examining the tendency of more recent judges to ascribe greater weight to nisi prius rulings than their nineteenth century counterparts, due to the modern profession's ignorance of the former difference in the treatment of nisi prius rulings and the decisions of courts in banc. [ABSTRACT FROM AUTHOR]

AbstractThe United Nations Sustainable Development Goals (SDGs) provide a framework for global development priorities focused on improving human well-being while protecting the environment. Though a modern initiative, the conceptual roots of sustainability and many SDG themes can be traced back over a century. This paper examines the 19th-century Transcendentalist movement and the writings of Ralph Waldo Emerson, which established a philosophical and ethical foundation closely aligned with sustainable development values. The study begins with an introduction and a brief background on the UN SDGs, followed by an overview of Transcendentalism and Emerson’s contributions. Emerson’s core principles and values—emphasis on nature, simplicity, self-reliance, and moral obligation—are explored in detail, demonstrating their parallels with the 17 SDGs. The paper then argues that Emersonian philosophy provides a foundational framework for sustainability, offering a unique perspective on integrating these transcendentalist insights into sustainability education. This study shows how American intellectual traditions anticipated today’s environmental requirements, emphasizing transcendentalism’s long-term influence and impact on achieving the Sustainable Development Goals. The study offers a unique viewpoint on sustainability by considering transcendentalism’s lasting effect and potential contribution to attaining the SDGs. [ABSTRACT FROM AUTHOR]

Humility holds a modest but important place among the judicial virtues. But in spite of its growing popularity, it does not yet have a place on the 'central judicial virtues' lists. This paper provides an argument that judicial humility, especially institutional judicial humility, should be considered a necessary judicial virtue at least in common-law jurisdictions. This is because it is a necessary ingredient in precedent-based decisions that are fully justified from the point of view of the law and of political morality. Further, while it is sufficient that individual judges make decisions that a humble judge would have made, the judicial community must in fact be humble in order to produce fully justified common-law decisions – humility is therefore necessary as a community-virtue. [ABSTRACT FROM AUTHOR]

How do global trade rules evolve? This article argues that agreements create precedent that shapes subsequent negotiations, and policymakers exploit this precedent. Specifically, states sequence agreements, using negotiations with likeminded or relatively less important partners to establish model rules for subsequent use where negotiations will be more challenging. By institutionalizing negotiating positions where stakes are low, negotiators seek to improve the odds of replicating preferred terms in later, more challenging deals. A two-stage regression analysis on trade agreement design from 1965 to 2016 and qualitative probes from the UK and New Zealand support the argument: agreements with less important partners are presented as strategic opportunities to innovate and set precedent. Legal language has a way of sticking around, and states know it. States sign agreements with an eye to the future. [ABSTRACT FROM AUTHOR]

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court ('the Null Model'), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. [ABSTRACT FROM AUTHOR]

This manuscript examines how federal appeals courts respond to precedent, in this case, Central Hudson Gas & Electric Corporation v. Public Service Commission. This account includes a comprehensive theory that examines attitudinal factors that relate to Central Hudson, specific relevant legal factors that relate to the case, as well as strategic considerations. We additionally argue that federal appeals courts may reasonably ignore Central Hudson in certain specific instances (most notably when other highly relevant cases are available for lower federal court judges to use). Our results show partial support for several portions of our theory, including a lower propensity for federal appeals courts to positively treat precedent when ideological distance is high. We also find support for one of our factual-based hypotheses (regarding cases that involve drugs and attorney advertising, where other U.S. Supreme Court precedents are readily available for appeals court judges to use). [ABSTRACT FROM AUTHOR]

Two paradigms are dominant in the international discourse on the System of Case Guiding ('SCG'). The first 'transplantation' paradigm posits that the SCG is a straightforward transplant of the Anglo-American system of common law. The second 'hybridisation' paradigm views the SCG as a distinct but inferior common law, held back by its 'Chinese characteristics'. These paradigms are challenged as being partial, outdated and inaccurate accounts of the SCG on two tiers. On a comparative and theoretical tier, this article builds upon the foundations of three concepts to mount its sustained critique. First, preferring Teubner's description of legal change and reform as proceeding by legal 'irritation', it is argued that the notion of 'transplantation' is too blunt an account of how contemporary legal reform within the People's Republic of China ('PRC') has sought to learn from and build upon the experiences of other legal systems. Second, accepting Santos's call for a decentred approach to globalisation, the development of the SCG is situated foremost within its local context, instead of by reference to foreign systems of precedent. In doing so, this article moves beyond the old paradigms of 'transplantation' and 'hybridisation' towards a recognition of the distinctiveness of the SCG as an autochthonous innovation of the Chinese legal community that has been precisely tailored to its unique conditions. Third and finally, applying the concept of legal plurality to the practice of using Guiding Cases and precedent more generally, it is recognised that the development of the SCG has been driven, not only by the top-down actions of the Supreme People's Court ('SPC'), but also by its synergistic interaction with the bottom-up use of precedent by the wider legal community of litigants and legal professionals. Freed from the conceptual burdens of these two paradigms, this article proceeds to advance this theoretical basis for understanding the SCG by reference to an empirical analysis of three Guiding Cases – Numbers 24, 15 and 9. The first two are the most highly cited Guiding Cases; the third was one of the most often cited Guiding Cases as well, before losing its guiding effect. By reference to these three case studies, which involved analysing 939 judicial decisions, this article constructs a pluralistic account of the evolving judicial practice of referencing Guiding Cases. First, it is found that the distinctiveness of the SCG stems from the referent function of Guiding Cases, which is at the core of its judicial practice. This referent function is evident from the vast majority of judicial decisions that cite or refer to one of the three Guiding Cases as a formal authority for reaching their conclusion, without more. Second, however, it is also found that while this function of Guiding Cases might be the dominant form of judicial practice at this moment, this practice is not monolithic and is in fact changing at the margins. A small minority of cases since 2016 are illustrative of the potential trajectories of evolution for the next ten years of the SCG and the judicial practice of referencing Guiding Cases. These cases have evinced a greater willingness by courts to engage more meaningfully with precedent-based forms of reasoning, such as arguing from the facts of a case and arguing from the principles stated therein. This greater engagement has not only been driven by top-down mandates to search for and reference a wider variety of cases beyond Guiding Cases, but has also been driven by the bottom-up use of precedents by litigants in presenting their legal arguments before the courts. While these marginal practices are still in their infancy, the empirical analysis provides evidence of a complex, complicated and pluralistic practice of greater and more substantial reliance on Guiding Cases within the PRC. [ABSTRACT FROM AUTHOR]

As a self-imposed norm of judicial discipline, the Supreme Court has held that a judgement may be overruled only by a bench larger than the bench which delivered the judgement. Being a facet of the doctrine of stare decisis, the "Larger Bench Rule" achieves certainty, equality, and efficiency in adjudication, and secures public legitimacy for the Court. The Rule also accords equal weight to the wisdom of every judge. But the Court has breached the Rule in some key cases. We trace seven instances where smaller or coordinate benches explicitly or impliedly overruled binding judgements. The Court did this, we show, by ignoring precedent, shoddily "distinguishing" precedent, expressly disagreeing with precedent on merits, or unfairly declaring the precedent invalid for itself contravening the Larger Bench Rule. Finally, we suggest – preliminarily – some measures to ensure adherence to the Rule in future. [ABSTRACT FROM AUTHOR]

The fear of setting a precedent is a much-rehearsed argument used by Western museums to refuse the return of cultural heritage objects to their country of origin. After proposing to consistently distinguish among returns, restitutions, and repatriations as distinct phenomena, the article details three reasons that contradict this fear of setting a precedent: as each case is historically situated, one agreement is not easily transposable to other cases; the current practice of returns does not suggest that massive transfers are looming; and, most importantly, there is no will or plan, among experts and political authorities in claiming countries, to ask for massive returns. In turn, the fear of setting a precedent does open questions about the future museums: are universal museums at risk of disappearing? The museum as an institution is hardly at risk, as objects returned to another country will continue to live in the world of museums. Western universal museums should see return claims as an opportunity to rethink their mission and relations with other museums worldwide rather than a threat. [ABSTRACT FROM AUTHOR]

The argument for building performance evaluation (BPE) has, to date, largely been made by actors focused upon ensuring the achievement of quantitative standards of performance, such as energy performance and carbon emissions. However, it can also be argued that the value of an understanding of quantitative and qualitative performance and its role in evidence-informed design is much broader. Indeed, that the potential provided by the embedding of learning cycles from BPE stretches across both architecturally and sustainability led design paradigms. Thus providing opportunities to inform the significant changes in architectural practice required to achieve architectural and sustainable holistic design excellence. This paper aims to explore the role that BPE might play in this transition through reporting of performance of Stirling Prize winners, as proxies for Architectural Design Excellence; framework evaluation of the language associated with current BPE practice and establishment of an expanded holistic scope for BPE. [ABSTRACT FROM AUTHOR]

The Cassation Division of the Ethiopian Federal Supreme Court has the power to review any court decision containing a basic error of law. The interpretations of the Division reviewing such decisions are binding on all other courts. So far, the Division has rendered a handful of binding precedents pertaining to private international law. Nevertheless, the appropriateness of the Division's decisions in some private international law cases is questionable, let alone correcting errors committed by other courts. In two employment cases, the Division utterly invalidated choice of law agreements concluded by the parties. In another case, it characterized a dispute involving a foreigner as a purely domestic case. Through a critical analysis of the case laws, this Article strives to answer the question of whether the Division's decisions are consonant to the foundational principles of private international law such as party autonomy. It also examines the validity of the precedents in light of the doctrine of separation of powers. The absence of a dedicated private international law statute and the bindingness of the Division's decisions make the second question worthwhile. The Article will argue that the Division's decisions undermine some generally accepted principles such as party autonomy: the decisions involve a judicial invention of eccentric norms. Hence, they also encroach on the lawmaking power of the Legislature. [ABSTRACT FROM AUTHOR]

Why are some opinions widely discussed while others remain obscure? We theorize that opinions that can be understood efficiently are discussed, expanded, and contracted more frequently. Additionally, more persuasive precedents tend to be discussed and expanded more regularly, while less persuasive precedents are narrowed more often. These effects should also depend on institutional context. We compile an original dataset of 7,485 search and seizure opinions written by federal circuit and state high court judges and 567,062 judicial citations to those cases. The evidence demonstrates that efficiency, persuasiveness, and institutional context together determine how much an opinion affects legal development. [ABSTRACT FROM AUTHOR]

I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction. [ABSTRACT FROM PUBLISHER]

The article contributes to the efforts of understanding Russia’s legitimization endeavours by looking at the policy narratives centred around the so-called Kosovo precedent and the way they were perceived by different actors from Ukraine, Russia, and international experts. The aim of the paper is to scrutinize the process of politicization of contested international norms (in particular, territorial sovereignty and the right to self-determination) in the case of Russia’s legitimacy claims in Ukraine. In assessing the instrumentalization of the ‘Kosovo precedent’ in the Crimea crisis, we focused on three main elements identified in the selected policy narratives: the reinterpretation of history, the humanitarian and ethnic factor and the reinterpretation of Western actions in the Balkans. [ABSTRACT FROM PUBLISHER]

Precedential authority has an important place in doctrinal explication and analysis in Anglo-American law. Efforts to manage these precedents visually, in sixteenth- and seventeenth-century England, display a variety of solutions to the question of where precedents belong and how to represent them. Sir Edward Coke’s approach, in hisInstitutes(1628–44), was to place the citations in the margin; this way of managing textual authority connected legal concepts in a way that lent new significance to the citations. The discussion examines this development by considering it in relation to the introduction of perspective in visual art, in the early fifteenth century, and the use of infinitesimals in the new mathematics of the early seventeenth century. [ABSTRACT FROM AUTHOR]

The United States Supreme Court has significant influence over the development of legal policy, yet it must rely on external actors to bring to fruition the desired effect of its decisions. Among the most important such actors are state high courts who are often motivated to issue decisions promoting policies at odds with the U.S. Supreme Court and who have mechanisms to legitimize such decisions. This study builds on existing work on state court compliance with U.S. Supreme Court precedent by introducing a new theoretical framework that accounts for the impact of state-specific precedent vitality, or the degree to which the high court of a specific state has positively treated a U.S. Supreme Court precedent, on state high court compliance. Our analysis of state high court treatment ofMiller v. Californiaprovides strong evidence for the importance of state-specific vitality as a determinant of state high court compliance. [ABSTRACT FROM AUTHOR]

This article analyses the migration of the common law doctrine of precedent to civil law constitutionalism. Using the case study of Mexico and Colombia, it suggests how this doctrine should be tailored to the civil law context. Historically, the civil law tradition adhered to the doctrine ofjurisprudence constantethat grants relative persuasiveness to precedents, once they are reiterated. However, the trend is to consider single constitutional precedents as binding. Universalist judges are borrowing common law concepts to interpret precedents joining the global trend while particularists consider such migration a foreign imposition that distorts the civil law theory of sources. This article takes a dialogical approach and occupies a middle ground between universalist and particularist approaches. The doctrine of precedent should be adopted, but it must also be reconfigured considering three distinctive features of the civil law: (a) canonicalrationes decidendi; (b) precedent overproduction; and (c) a fragmented judiciary. [ABSTRACT FROM PUBLISHER]

In the 19th century, the term “case lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about case lawyers increased with the significant growth in the amount of published law after private companies entered the legal publishing market. By the turn of the 20th century, it was generally acknowledged the number of cases had made it impossible for attorneys to not focus on locating precedents. In the 20th century most references to case lawyers were historical, even as the amount of published law facing lawyers continued to grow. [ABSTRACT FROM PUBLISHER]

Imagine that it is illegal to execute a virgin, so one must therefore violate a virgin prior to her execution--it is this legal crux from the reign of the second Roman emperor Tiberius that is the main object of this investigation. Tacitus', Suetonius', and Dio's portrayals of Tiberius present the latter as the emperor of dissimulation, duplicity, hypocrisy, and pretense and at the same time as the self-proclaimed ''justest emperor.'' This article attempts a rhetorical analysis of Tiberius' ironical dialogue with the law. It focuses on how Tiberius employs the genre of legal fiction to justify particularly gruesome punishments: Tiberius treats virginity as a legal fiction in order to literalize and thereby fix the concept of virginity. In effect, virginity is considered by the law not as a stable concept but rather as something transitory, which can be altered or molded. [ABSTRACT FROM AUTHOR]

Why did Japan decide to admit more than 11,000 refugees from Vietnam, Laos, and Cambodia between 1975 and 2005? The conventional explanation is that Japan admitted these refugees because of pressure from foreign countries, and particularly from the United States. In this article, I argue that, in addition to foreign pressure, there was another factor that was important in causing Japan to admit these refugee populations. Japanese leaders agreed to admit Indochinese refugees because they came to believe that this would not set a precedent that would make Japan into a major destination for refugee resettlement. [ABSTRACT FROM AUTHOR]

The hypothesis is that, at least in Europe, there is a noted convergence between common and civil law legislative drafting extending from conceptual approaches to actual drafting conventions. The comparative analysis of [statutory] interpretation, modern doctrine of precedent, and drafting rules and conventions in the common and civil laws of Europe paint a clear picture approximation and convergence, to the point where the sacred civil versus common law dividing wall is now critically shaken. [ABSTRACT FROM AUTHOR]

'Stare Decisis' or 'stay with what has been decided' has long been understood as a fundamental principle of common law. In the absence of statutory language, it is supposed to provide stability by binding courts to follow earlier case-law of courts at equal or higher levels. By contrast, the continental European or civil law courts have traditionally seen themselves as not bound by case-law at all. In this article, the author argues that both understandings are ultimately wrong. Nowadays, courts all over the world are constantly challenged to find a course between Scylla and Charybdis - between the Empire of Mechanical Jurisprudence on the one side and the Empire of Arbitrary Jurisprudence on the other. The courts in both systems have to ensure that their decisions are objectively correct and subjectively perceived as just and fair. This can mean for a common law court having to deviate from earlier case-law in the name of objective justice although it would seem to fall under stare decisis. And it can mean for a civil law court having to follow earlier case-law in the name of equality before the law although there would seem to be no such 'rule' per se. For both types of courts, persuasive argument requires acknowledgement and discussion of earlier cases and rational explanations for following or not following them. Reliance on a traditional and narrow interpretation of stare decisis - or the absence thereof - can quickly conflict with the need for persuasiveness and ultimately damage the legitimacy of the courts and the legal system as a whole. [ABSTRACT FROM AUTHOR]

中国法律史叙事中，以西方概念体系为基本框架的填充式方法，值得深入反思。中外学者关注的'判例'堪为典型。这一近代概念很可能来自日文汉字，用以迻译西文。回顾西欧英、法两国的历史和现实，判例作为以个案方式凝聚法律群体共识、指引未来案件裁决的形式，始终具有重要作用。这一功能，与中国古代法中的相关制度有部分共通之处，可以成为构建普适理论体系的基础之一；同时，中国的相关制度具有特定的体制背景和功能。将普适功能与特定功能相结合，'双向功能主义'可能可以避免西方中心和概念纠结，转向功能性问题的探讨和解释，以逐步构建中国法律史叙事的新框架。关键词: 法律史学方法论 判例 功能主义 The traditional way of describing the history of Chinese law, i.e., fitting Chinese historical materials into the basic framework of the Western conceptual system needs to be thoroughly reconsidered. 'Precedent' or '判例' (panli), which has attracted academic attention both in China and abroad, can serve as an example in this regard. The concept '判例,' which may have originated from Japanese kanji in the nineteenth century, was used to translate its Western counterpart. A review of the historical and modern practice of the Western European countries of England and France shows that precedent has always played an important role in achieving consensus in the legal community and guiding future rulings by means of case law. This function, which has something in common with the relevant portions of ancient Chinese legal institutions, can serve as a foundation for constructing a universal theoretical system. At the same time, the relevant Chinese institutions had specific institutional contexts and functions. By combining universal and specific functional analysis, 'two-way functionalism' may be able to avoid the Western-centric approach and futile conceptual discrimination and turn towards the exploration and elucidation of functional issues, so as to eventually establish a new framework for the narrative of Chinese legal history. [ABSTRACT FROM AUTHOR]

The influence of the European Court of Justice and its jurisprudence on European integration is well established. A closer look at this process reveals the extent to which its precedents exert influence on EU actors' decision-making in ways that parallel the effects of informal institutions. The dynamics of legal decision- making, therefore, provide some useful insights into how it is that informal institutions may shape behaviour similarly. This paper explores the impact, on intergovernmental actors, of a quite pro-integrative ECJ jurisprudence in cases concerning the European Parliament and shows how, over time, even decisions that they oppose come to influence their decision-making and conduct in inter-organizational conflicts. [ABSTRACT FROM AUTHOR]