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Tag Archives: Precedent

Why We Should Care About The Loss of Precedent.

14 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Precedent

≈ Comments Off on Why We Should Care About The Loss of Precedent.

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Appellate Advocacy Blog, Appellate Law, Common Law, David R. Cleveland, Lord Coke, Precedent, Unpublished Opinions

The Harms of Issuing Non-Precedential Opinions, by David R. Cleveland, Appellate Advocacy Blog

http://tinyurl.com/nkmjg7b

In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, ‘what’s so wrong with deliberately declining to create precedent?’ By his answer, an implied ‘nothing’ because ‘[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent,’ he seems to be asking, ‘what’s the harm?’ . . . .

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Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.

12 Thursday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Case of First Impression, Intellectual Property, Patent Law, United States Supreme Court

≈ Comments Off on Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.

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Cases of First Impression, Dennis Crouch, PatentlyO Blog, Precedent, U.S. Supreme Court

Most Cited Supreme Court Patent Decisions (2005-2015), by Dennis Crouch, PATENTLYO Blog

http://tinyurl.com/mpd5ue

The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations.  Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). Bay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.

With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far). . . .

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Fine Tune Legal Interpretation and Analysis of Precedent and Stare Decisis.

10 Sunday Aug 2014

Posted by Celia C. Elwell, RP in Legal Analysis, Legal Writing

≈ Comments Off on Fine Tune Legal Interpretation and Analysis of Precedent and Stare Decisis.

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Legal Analysis, Legal Research, Michigan Law Review, Precedent, Randy J. Kozel, Rule of Law, Stare Decisis

The Rule of Law and the Perils of Precedent, by Randy J. Kozel, Michigan Law Review

http://tinyurl.com/jvqd3y3

Introduction

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over time.[1]

Notwithstanding pervasive disagreement over the application of stare decisis to particular disputes, the doctrine is well established in American jurisprudence.[2] Indeed, the Supreme Court has gone so far as to describe stare decisis as indispensable to the rule of law.[3] But as Jeremy Waldron skillfully reminds us, justifying the doctrine requires more than platitudes.[4] Even a proposition as fundamental and seemingly intuitive as the ability of stare decisis to promote the rule of law conceals a considerable amount of analytical nuance. Professor Waldron concentrates on developing what we might think of as the rule-of-law case for precedent. Central to his project is the recognition that rule-of-law benefits arise at several distinct points along the path from initial ruling to subsequent application. The touchstone is the principle of ‘generality,’ pursuant to which individual jurists subjugate their personal beliefs to the vision of a unified court working across space and time to fashion generally applicable norms.[5]

In this Essay, I wish to build on Professor Waldron’s thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive fidelity to flawed precedents would be cause for concern.[6] That rule-of-law ambivalence, I will suggest, should be brought to bear in calibrating the strength of deference that judicial precedents receive. . . .

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OSHA First Impression Ruling on “Entreprise-Wide” Abatement Theory of Liability

05 Tuesday Nov 2013

Posted by Celia C. Elwell, RP in Employment Law, Trial Tips and Techniques, Workers' Compensation

≈ Comments Off on OSHA First Impression Ruling on “Entreprise-Wide” Abatement Theory of Liability

Tags

Administrative law judge, Enterprise-wide relief, OSHA, OSHRC, Precedent

Judge Rejects OSHA’s “Enterprise-Wide” Relief Theory, by Stephen Yohay, EHS OutLoud Blog

http://www.perma.cc/0SeaMZWf1hp

In what apparently is a case of first impression, an administrative law judge (ALJ) of the federal Occupational Safety and Health Review Commission (OSHRC) recently decided that the Occupational Safety and Health Act (OSH Act) does not authorize OSHRC to order so-called “enterprise-wide” abatement. Under that theory of liability, the Occupational Safety and Health Administration (OSHA) maintains that when a violation is proven at an employer’s worksite, OSHRC has the statutory authority to require that employer to abate the same or similar hazards at its other worksites that were not the subject of the litigated citation.

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