The intricacies of dicta and dissent

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書誌事項

The intricacies of dicta and dissent

Neil Duxbury

Cambridge University Press, 2021

  • : pbk

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注記

Includes bibliographical references and index

Summary: "Introduction We digress when, in intending to make a point, we either temporarily or permanently deviate from it. Digressions can be deliberate or unconscious. They can be to good or bad - or a mixture of good and bad - or to no effect. Distinguishing the digressive from the non-digressive is not always straightforward: comments offered as asides can strike at the very heart of a matter, just as narrative which a reader thinks peripheral might be the author's fil conducteur. Common-law judges often digress in the course of making legal decisions. The standard characterization of these digressions is that they are observations which are not integral to a decision that has been reached - that they could be taken out of a judgment without that judgment being undermined. The full legal Latin term for these observations is obiter dicta"-- Provided by publisher

内容説明・目次

内容説明

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on - and will prompt lawyers to pose fresh questions about - the common law tradition and the nature of judicial decision-making.

目次

  • Preface
  • Table of cases
  • Prologue
  • Essay I. Dicta: introduction
  • 1. The civilian dimension
  • 2. Case law as common law
  • 3. 'Obiter' as legal entity
  • 4. Dicta depicted
  • 5. Oblique strategies
  • 6. Engines of confusion
  • 7. The necessity test
  • 8. Cheap talk
  • 9. Dicta and dicta
  • 10. Nearly law?
  • 11. Observation and authority
  • 12. The sources problem
  • Essay II. Dissent: introduction
  • 13. Some preliminary observations on dissent
  • 14. The nature of judicial dissent
  • 15. Without contraries is no progression?
  • 16. Stalemates and motivations
  • 17. Dissents, decisions, and courts
  • 18. The tug of unanimity in England's courts
  • 19. Dissent in an apex court
  • 20. When is a dissent not a dissent?
  • 21. Minorities as authorities
  • 22. Are we agreed?
  • Index.

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