Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.

Between the no-fault divorce revolution and various court rulings classifying sexual behavior between two adults as a private, intimate matter, some scholars have noted a shift away from traditional morality around sex in conjugal, cohabiting, and dating relationships in family law. The act of sex in a romantic relationship is often perceived as one’s complete liberty without bounds. Many underrate the legal consequences attached to their sexual behavior. However, sex is still the defining consideration that creates legal recognition of a romantic relationship between two people. It creates legal duties to each other and any minor involved in the partnership, irrespective of biological ties, in a relational parentage era. Past and recent court rulings, including rulings from nonmarital, intimate partner violence, and parentage cases, are provided as examples to recount the legal meaning of the act of sex.

This Chapter first explains what the ECtHR regards as the object of review in cases where an alleged violation of the Convention is caused by legislation: is this the legislation as such (which would invite general and more abstract review), or is it the individual decision applying this legislation (which would invite individualised and more concrete review), or perhaps both? The chapter then turns to discussing how the Court has tried to reconcile its task of offering individual justice and general constitutional interpretations. Specific attention is paid in this regard to the role of precedent-based reasoning in the Court’s case law and to case-based review, incrementalism and the development of general principles. Finally, the legal effect of these general principles is discussed (so-called ’res interpretata’ or force of interpretation), in contrast to the application thereof to the facts of the individual case.

This chapter is meant to serve as an introduction to the book, particularly to that part of its audience that is unaccustomed to the history and sources of Qatari contract law, as well as the institutions and forces that shape and develop it.

Should acts that are somewhat right and somewhat wrong be permitted or prohibited by the law? Five theories are presented and discussed. Each is evaluated with respect to how well it meets five desiderata. The first holds that a plausible theory should be decisive in the sense that it must always generate a practical ought. The court cannot refrain from ruling on a case, every case brought in front of the court must be resolved. The second desideratum is that the court should not be permitted to issue a ruling it knows to be incorrect. The third is an addendum to the second: a ruling based on a sincere but false belief is not acceptable for the same reason as a sincere but incorrect ruling on the soccer field is. The fourth desideratum is that a ruling must be predictable (after a precedent has been established) for agents with access to all relevant facts. Finally, the fifth desideratum is Aristotle’s observation that judges (and everyone else) should treat like cases alike. I argue that the only theory that meets all five desiderata is a view I call precedentism. According to this theory, doctrinally indeterminate oughts are indeed indeterminate, but precedents can generate new determinate practical oughts.

Chapter 7 addresses the following question: How can reflexivity be promoted in the collective context of investor-state dispute settlement, so as to help bridge individually held views by arbitrators that often come into competition or conflict with one another? The response that this chapter offers is that collective reflexivity can be promoted by acknowledging the presence of moral responsibility in arbitrators and by arbitrators committing to five distinct judicial virtues, namely: faith, humility, acquiescence, integrity, and candour. Judicial virtues are habits and mental dispositions, not an equation for the courtroom. They are thus meant as a framework offering guidelines and a roadmap to develop better deliberative practices. The chapter analyses the content of each virtue and assesses observable behaviour in investor-state dispute settlement under each of them.

The story finally gets to the interpretation and application of legal norms to the facts of the case. This chapter deals with the first interpretive step, called law-ascertainment, where the interpreter identifies the rules that are relevant to the case at hand. Donning the hat of an explorer, the interpreter maps the body of norms precedents in concentric circles – starting with the sources closest to the centre of gravity of their judicial regime and gradually venturing into more peripheral territory. The results of these practices explains the degree of cohesion or fragmentation in international law. As the legal system grows more complex, interpreters no longer have time and resources to master it all, and prove increasingly partial and selective in their legal readings. The emergence of self-contained regimes is largely due to epistemic constraints which, in turn, reflect the social structures of the international judicial community.

The common law largely consists of rules established in precedents. The rule established in a precedent is the rule that the precedent court stated governed or decided the case before it. That rule is the holding of the precedent. Most statements in judicial opinions are either factual or legal. Factual statements consist of the facts and history of the case. The central legal statement is the holding. Most other legal statements in an opinion are dicta – singular, dictum. Dictum means something said. The holding of a case is binding on lower courts and the deciding court. Dicta are not binding: they concern rules but are not rules. Typically, dicta signal a court’s possible future actions. For example, a dictum may be a rule that the court suggests would be desirable although it is not presently being adopted; a statement of where it would be desirable for the law to go; or a criticism of an established rule that does not rise to the level of undoing the rule. Although dicta are not binding, they can have legal import. For example, they may be employed by a court to foreshadow future changes in the law.

Chapter 2 accounts for the selection of case law which forms the basis of the legal analyses of Article 13. The chapter, further, accounts for three building blocks of importance for the analyses. First, how the Court has provided little abstract and principled reasoning concerning the content of Article 13. Second, how the Court's method of interpretation, as such, provides few answers as to how Article 13 could and should be construed and applied. Third, how the wider precedential effect of the Court's judgments may influence how the Court construes and applies Article 13 in individual cases. These building blocks explain, at least partly, why there there has been, and still is, considerable uncertainty concerning the content of the case law and why the Court's law-making potential concerning Article 13 still is large. The chapter, also, briefly explains how legal literature has been used to clarify the content of Article 13 and why a larger comparative analysis has not been performed.

This chapter addresses the question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence that implies a corpus of cases. Frese shows empirically how the corpus of CJEU cases, built over the course of the past sixty years, assigns different degrees of authority to each case according to how the court uses them. This chapter demonstrates that the network approach to the study on precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative from the scholarly perspective to the CJEU’s perspective by tracing the court’s own references and citations to its past cases. In departing from traditional theories of what precedent is and how it constrains, the chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it is furthermore shown how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others less. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows that this approach should refine and supplement, rather than substitute, EU law doctrinal analyses.

Lawyers are problem solvers, and the specific job of constitutional lawyers is to solve problems that arise out of the basic political arrangements of the American political community, arrangements that include the written Constitution, the institutions of the federal government that the text authorizes and of the state governments that it presupposes, the community’s commitment to limit public action by constitutional prohibitions, and the mechanism of judicial review by which constitutional law controversies are usually resolved. The previous four chapters have said a great deal about the tools and perspectives constitutional lawyers use in articulating arguments that they hope will persuade readers that their proposed solution to a problem is the right one. With those tools and perspectives in mind, what we can say about how the readers are to decide which of two or more competing solutions is in fact the most persuasive one?

Constitutional law’s twofold logic of inquiry into authorization and prohibition provides the basic structure for constitutional law reasoning. It also supplies the method by which constitutional lawyers break down into discrete, manageable questions the complex set of facts and legal claims that a difficult constitutional problem presents. Finally, as Chapter 2 discussed, this logic rests on several presuppositions that further shape the analysis of any constitutional problem. We can now begin to consider how to solve a problem once we have identified the questions of constitutional law it raises. The answer to a constitutional question that is at all perplexing, or controversial among competent lawyers, can seldom if ever be identified by simply pointing to the constitutional text. Questions that can be answered in that fashion (do Wyoming and California really elect the same number of senators?) do not give rise to serious constitutional law debate, however puzzling they may be from other perspectives.