Final study guide 2 - The task was to show that the rules...

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The task was to show that the rules or practices of stare decisis were simply those of Incrementalism stated in other terms. Judges are to keep doing what they had done in the past, that is, to follow precedent, unless a new case reveals trouble or incompleteness in past policy. In such cases that advocates and the judges are not to bring forward every fact, value, and policy alternative that bear on curing the trouble. Two forms of stare decisions: vertical and horizontal. Vertical: lower courts following the decisions of higher courts. But another form of stare decisis involves a court following its own previous decisions, or even the decisions of other courts to which it is not hierarchically subordinated. If we combine a concern for organizational behavior with an interest in this “horizontal”stare decision ! Our fascination with Weberian hierarchies tends to direct our attention away from possible horizontal coordinating devices in which units at the same level communicate directly with one another. Those who begin not with organizations but with stare decisis, in its horizontal as well as vertical forms, will immediately see that if courts are organizations, then horizontal stare decisis is a means of coordinating communication among units at the same level in hierarchical court organization. +++State courts frequently cited decisions of courts of other states as a routine part of the practice of stare decisis+++ STARE DECISIS AS AN INCREMENTAL PROCESS There are huge bodies of American law in the hands of the states, not the central government. They are generally the same, but not quite the same across all or most of the states. That sameness is often the product not of parallel state legislation but of parallel court decisions. Due to soft law, horizontal stare decisis is practiced greatly. If a given set of facts and arguments had yielded victory in one jurisdiction, they were likely to win in another. Interstate horizontal stare decisis wasboth a cause and an effect. Lawyers urged the courts of one state to follow decisions favourabl to their clients’ position that had been handed down in another, and the resulting interstate citation by courts further motivated lawyers to bring forward similar urgings.
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Redundancy is introduced to reduce the rate of error, because if you repeat the same information twice, the second message is redundant and allows for any possible error to be corrected. Redundancy may be introduced into messages to facilitate the diagnosis of information-transmission errors and the transmission back to the sender of messages enabling him to correct his errors. This is the process of “FEEDBACK,” Legal discourse organized by the rules of stare decisis emphasizes, and itself insists that its success rests upon, high levels of redundancy and, therefore – less information. The strongest legal argument is that the current case, on “its facts,” is “on all fours” with previous case and that the decision in that case is deeply embedded in a long line of
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This note was uploaded on 05/29/2008 for the course LEGALST 179 taught by Professor Shapiro during the Spring '08 term at University of California, Berkeley.

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Final study guide 2 - The task was to show that the rules...

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