Economics Dictionary of ArgumentsHome
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| Legal doctrine: A legal doctrine is a principle or rule of law that has been established through court decisions or legal scholarship. It provides a framework for how judges should decide cases and can help to ensure consistency in the law. See also Law, Jurisdiction._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. | |||
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Positive Political Theory on Legal Doctrine - Dictionary of Arguments
Parisi I 225 Legal Doctrine/Positive Political Theory/Tiller: ((s) this subject is especially related to the USA). As commonly understood by legal academics, legal doctrine, or precedent, is an essential component of "law," at least as it comes from courts (Tiller and Cross, 2006)(1). Hierarchies: Typically, it is the higher courts within a judicial hierarchy that, through a judicial opinion or multiple opinions, create or endorse a legal doctrine that has some measure of binding effect on the courts, including the higher courts themselves in future cases. Legal doctrines are decision-making principles applicable to the various decision instruments - that is, the various legal challenges and issues presented by the parties to a case - that courts have available to them and on which they may base their outcome choice. Decisions: Decision instruments can be thought of as the routine challenge and defense structures associated with a particular case type, whether the case involves regulation, intellectual property, contracts, or any of the numerous case types that typically emerge for a court to resolve. For legal challenges to regulation, for example, typical instruments would be statutory interpretation and arbitrary and capricious decision-making challenges. Litigation: Litigants know to bring both challenge types in an action against an agency if in any way plausible given the context of the challenge. Revision: A reviewing court could then defeat the regulatory action on either (or both) of these grounds, thus providing a choice option for the court. Parisi I 226 Implementation: Whether a given doctrine is implemented in a case may depend on which decision instrument the court wishes to validate. In some circumstances, perhaps a single-issue case, a court may have little choice but to use a given doctrinal precedent because only one decision instrument is at issue. In many situations, however, there are a variety of issues and challenges that present the court with choices among instruments on which to base its decision. Policy: Which instrument is selected often depends on the doctrinal precedent that attaches to the instrument, making the instrument more or less desirable as a means for political control in the competitive game with other policy actors. >Law/Positive Political Theory, >Competition/Positive Political Theory, >Positive Political Theory/Tiller. 1. Tiller, Emerson H. and Frank B. Cross (2006). "What is Legal Doctrine?" Northwestern University Law Review 100: 517—534. Tiller, Emerson H. “The “Law” and Economics of judicial decision-making. A Positive Political Theory Perspective.” In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Concept/Author], [Author1]Vs[Author2] or [Author]Vs[term] resp. "problem:"/"solution:", "old:"/"new:" and "thesis:" is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition. |
Positive Political Theory Parisi I Francesco Parisi (Ed) The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017 |
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> Counter arguments in relation to Legal Doctrine
