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2 results

  • 5 - Reasoning from Authoritative Although Not Legally Binding Rules

  • Melvin A. Eisenberg, University of California, Berkeley
  • Book:
    Legal Reasoning
    Published online:
    22 September 2022
    Print publication:
    29 September 2022, pp 34-40

  • Summary

    The most prominent type of rules employed in American legal reasoning consists of rules established in binding legal precedents. The next most prominent type consists of authoritative although not legally binding rules. An authoritative although not legally binding rule is one that courts treat as a rule not because after due consideration they regard it as a good rule but because it was adopted in a source to which the courts give deference. In the common law there are several sources of authoritative although not legally binding rules. One source consists of decisions by the Supreme Courts of other jurisdictions. Another source consists of cases decided by coordinate courts in the same jurisdiction as the deciding court. Perhaps the most important sources of authoritative although not legally binding rules are Restatements and leading treatises.

Legal Reasoning
  • Melvin A. Eisenberg
  • Published online:
    22 September 2022
    Print publication:
    29 September 2022
  • The common law, which is made by courts, consists of rules that govern relations between individuals, such as torts (the law of private wrongs) and contracts. Legal Reasoning explains and analyzes the modes of reasoning utilized by the courts in making and applying common law rules. These modes include reasoning from binding precedents (prior cases that are binding on the deciding court); reasoning from authoritative although not binding sources, such as leading treatises; reasoning from analogy; reasoning from propositions of morality, policy, and experience; making exceptions; drawing distinctions; and overruling. The book further examines and explains the roles of logic, deduction, and good judgment in legal reasoning. With accessible prose and full descriptions of illustrative cases, this book is a valuable resource for anyone who wishes to get a hands-on grasp of legal reasoning.