Not a shocking conclusion, but it captures an insight I've never articulately quite like this author does, which rings true.
Judges frequently resort to three adjudicative tools to decide cases: precedent, principles, and presumptions. First, courts consider precedent and draw analogies between past decisions and the case before them. Second, judges evaluate legal principles. They employ multi-factor balancing tests and frameworks to reconcile competing principles. Third, judges create presumptions that ease evidentiary burdens and provide default ways to resolve disputes. . . .
Presumptions correct legal frameworks and multi-factor balancing tests that misfire, support principled asymmetries, promote access to justice, and shape choice architecture in adjudication.
- Terry Skolnik, Precedent, Principles, and Presumptions 54:3 UBC Law Review 935 (2021).
No comments:
Post a Comment