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Just in case II: more jurisprudential anatomies of case law

Chapter


Abstract


  • How do we know when courts (or counsel) are using theory? Sometimes

    they tell us. Sometimes they don't, as we saw in Chapter 4. As we will see in Yorta

    Yorta, the majority judgment makes some specific and explicit references to legal

    theory. The judges refer to a number of writers by name, but they also use law's

    'secret language'- the phrase 'rule of recognition'. Can you remember where this

    phrase comes from? If you can't, we'll see shortly.

    Sometimes, though, the judges don't tell us at all. The ideas which flow into

    the decision from theory are not explicitly sourced, and we have to work them

    out for ourselves.

Publication Date


  • 2014

Edition


  • 2

Citation


  • Leiboff, M. & Thomas, M. (2014). Just in case II: more jurisprudential anatomies of case law. In M. Leiboff & M. Thomas (Eds.), Legal Theories: Contexts and Practices (pp. 529-565). Australia: Thomson Reuters.

International Standard Book Number (isbn) 13


  • 9780455231051

Book Title


  • Legal Theories: Contexts and Practices

Start Page


  • 529

End Page


  • 565

Place Of Publication


  • Australia

Abstract


  • How do we know when courts (or counsel) are using theory? Sometimes

    they tell us. Sometimes they don't, as we saw in Chapter 4. As we will see in Yorta

    Yorta, the majority judgment makes some specific and explicit references to legal

    theory. The judges refer to a number of writers by name, but they also use law's

    'secret language'- the phrase 'rule of recognition'. Can you remember where this

    phrase comes from? If you can't, we'll see shortly.

    Sometimes, though, the judges don't tell us at all. The ideas which flow into

    the decision from theory are not explicitly sourced, and we have to work them

    out for ourselves.

Publication Date


  • 2014

Edition


  • 2

Citation


  • Leiboff, M. & Thomas, M. (2014). Just in case II: more jurisprudential anatomies of case law. In M. Leiboff & M. Thomas (Eds.), Legal Theories: Contexts and Practices (pp. 529-565). Australia: Thomson Reuters.

International Standard Book Number (isbn) 13


  • 9780455231051

Book Title


  • Legal Theories: Contexts and Practices

Start Page


  • 529

End Page


  • 565

Place Of Publication


  • Australia