Gaps in the Law Filling the gaps = Judicial legislation The fact is that the difficulties of so-called interpretation

arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present The statute, they say, is often fragmentary and ill considered and unjust. The judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision (p.16) Ground breaking Precedents The work of deciding cases in accordance with precedents that plainly fit them is a process similar in its nature to that of deciding cases in accordance with a statuteIt is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. (pp. 18-21) Courts advancing the law In this perpetual flux, the problem which confronts the judge is in reality a twofold one: 1) He must first extract from the precedents the underlying principle, the ratio decidendi (TASK # 1) 2) He must then determine the path or direction along which the principle is to move or develop (TASK # 2) Philosophy (Logical Progression) Evolution (History) Tradition (Customs) Sociology (Morals)

Analogical Reasoning For Analogical Reasoning to work well, we have to say that the relevant, known similarities give us good reason to believe that there are further similarities and thus help us answer an open question. Does not require people to develop full theories to account for their convictions. Promotes moral evolution over time. Fits uniquely well with a system based on principles of Stare Decisis. Allows People who diverge on abstract principles to converge on particular outcomes.

Analogical Thought in Law Some fact pattern A has certain characteristic X, or characteristic X, Y & Z. Fact pattern B differs from A in some respects but shares characteristics X, or characteristics X, Y & Z. The Law treats A in a certain way. Because B shares certain characteristics with A, the Law should treat B the same way.

Four different but overlapping features of Analogical Reasoning in Law Principled Consistency: Judgment about specific cases must be made consistent with one another. A Focus on Particulars: Bottom-up Thinking. Ideas are developed from details, rather than imposed on them from above. Incompletely Theorized Judgments: Operates without a comprehensive theory that accounts for the particular outcome it yields. Principles operating at a low or intermediate level of abstraction: Usually operates without express reliance on any general principles about the right or the good.

Other Forms of Legal Reasoning Top-Down General Theories General Theory to Particular Cases Particular cases are not the source of principles.

The Search for Reflective Equilibrium Legal problems are also evaluated by comparing apparently plausible general theories with apparently plausible outcomes in particular cases. Reasoning in law entails an effort to produce both general theories and judgments in individual cases by close engagement with a range of general theories and a range of considered judgments about particular disputes. Reasoning by Analogy -Incompletely Theorized Practices. Sometimes reasoning by analogy works by reference to incompletely theorized practices rather than incompletely theorized judgments. The common law has often been understood as a result of social custom rather than an imposition of judicial will. According to this view, the common law implements the customs of the people; it does not impose the judgment of any sovereign body. Judges need not theorize about or evaluate these customs to work from them.

Classification The effort to resolve a case solely by reference to semantic principles (i.e., Deduction and syllogistic reasoning). Means-Ends Rationality Reasoning shows that the decision looked at Social Consequences and the decision was used as a means to an end. The end in mind might be social justice or any ends that suits the current legal thought.

Ration Decidendi A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. Precedent ... must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum. Rules for finding Ratio Decidendi (Goodheart) The principle of a case is not found in the reasons given in the opinion. The principle is not found in the rule of law set forth in the opinion. The principle is not necessarily found by a consideration of all the ascertainable facts of the case and the judge's decision. The principle of a case is found by taking account of: (1) all the facts treated by the judge as material (2) his decision as based on them. In finding the principle, it is also necessary to establish what facts were held to be immaterial by the judge, for the principle may depend as much on exclusion as it does on inclusion.

Ratio Decidendi (Dorf) Holding/dictum distinction should focuse on rationales, not just on facts and outcomes Use Preclusion Law: Court should preclude re-litigation* of an issue WHEN such issue was already litigated and determined by a valid and final judgment and the determination is ESSENTIAL to the judgment (i.e., NOT Dicta). Since principles mentioned in the courts reasoning process are usually essential to the judgment, they should thus be deemed conclusive in a subsequent action. Not just the facts and outcome. The legal propositions the court makes constitutes the NECESSARY ELEMENT of its resolution

Guidelines for finding Ratio Decidendi (Dorf) WHAT IS ESSENTIAL in a case is not just its OUTCOME/CONCLUSION but its FACTUAL CONTEXT as well (i.e., THE REASONING PROCESS that the court applied). The factual context of a case consists of: identities of plaintiffs and respondents, their relationships; issue; decision; rationale The accuracy and legitimacy-based rationale for distinguishing holding/dicta are not violated by giving precedence to the courts reasoning process in deciding a case