Английская Википедия:Close case
In the law, a close case is generally defined as a ruling that could conceivably be decided in more than one way.[1] Various scholars have attempted to articulate criteria for identifying close cases,[2] and commentators have observed that reliance upon precedent established in close cases leads to the gradual expansion of legal doctrines.[3]
Identifying close cases
Although some scholars have suggested that "a close case is in the eye of the beholder",[4] other scholars have attempted to articulate specific criteria for identifying close cases.[5] Maureen Armoor, for example, defines close cases as "the articulable outer limit of judicial discretion that most closely approximates the phenomenological experience of a sitting judge, in particular the dimension of discretion called into play when a judge is uncertain about an outcome".[6] Ward Farnsworth, dean of the University of Texas School of Law, has suggested that close cases could be defined as either "cases close enough to provoke dissent" or cases that "are flexible enough to comfortably admit of more than one reading".[7] Likewise, a 1980 comment in the Stanford Law Review defined close cases as appellate decisions that generated multiple dissenting opinions.[8]
Consequences of close cases
Northwestern University law professor John E. Coons observed that "[u]nder a system of winner-take-all the one-sided result reached upon principle in the close case must continue to trouble the conscience of the law".[9] Judge Guido Calabresi, a former dean of Yale Law School, noted that close cases create a "slippery slope", where the "next close case comes up and the precedent [established in the last close case] is applied: same thing, same thumb on the scale, same decision".[10] Calabresi argued that this process ultimately leads to the ongoing expansion of doctrine that was originally established only on a narrow basis.[11] Additionally, Ward Farnsworth has argued that judges often resolve close cases "according to beliefs the judges bring to the case that don’t owe much to law".[12]
See also
References
- ↑ See, e.g., Maureen Armoor, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close Case, 50 Шаблон:Smallcaps 493, 496 (1997); Ward Farnsworth, The Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeals, 86 Шаблон:Smallcaps 1083, 1095 (2006).
- ↑ See, e.g., The Selection of Interim Justices in California: An Empirical Study, 32 Шаблон:Smallcaps 433, 437 (1980).
- ↑ Guido Calabresi, The Exclusionary Rule, 26 Шаблон:Smallcaps 111, 112 (2003) (characterizing this process as a "slippery slope").
- ↑ Frank E. Jr. Watkins; Daniel G. Kyle, A Proposal for the Operation of Section 534 with Section 535, 52 Шаблон:Smallcaps 240, 248 (1974).
- ↑ See, e.g., The Selection of Interim Justices in California: An Empirical Study, 32 Шаблон:Smallcaps 433, 437 (1980); Maureen Armoor, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close Case, 50 Шаблон:Smallcaps 493, 496 (1997).
- ↑ Maureen Armoor, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close Case, 50 Шаблон:Smallcaps 493, 496 (1997).
- ↑ Ward Farnsworth, The Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeals, 86 Шаблон:Smallcaps 1083, 1088, 1095 (2006).
- ↑ The Selection of Interim Justices in California: An Empirical Study, 32 Шаблон:Smallcaps 433, 437 (1980); see also Stephen R. Barnett; Daniel L. Rubinfeld, The Assignment of Temporary Justices in the California Supreme Court, 17 Шаблон:Smallcaps 1045, 1064–67 (1986) (critiquing the methodology of the Stanford study).
- ↑ John E. Coons, Approaches to Court Imposed Compromise-The Uses of Doubt and Reason, 58 Шаблон:Smallcaps 750, 751 (1963).
- ↑ Guido Calabresi, The Exclusionary Rule, 26 Шаблон:Smallcaps 111, 112 (2003) (noting that Chief Judge John M. Walker, Jr. of the United States Court of Appeals for the Second Circuit described this process as "[t]he hydraulic effect").
- ↑ Guido Calabresi, The Exclusionary Rule, 26 Шаблон:Smallcaps 111, 112 (2003).
- ↑ Ward Farnsworth, The Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeals, 86 Шаблон:Smallcaps 1083, 1095 (2006).
