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1 results

  • 9 - Hiving Off New Legal Rules from Established Legal Rules, Creating Exceptions to Established Rules, and Distinguishing

  • Melvin A. Eisenberg, University of California, Berkeley
  • Book:
    Legal Reasoning
    Published online:
    22 September 2022
    Print publication:
    29 September 2022, pp 71-81

  • Summary

    A court faced with a binding precedent that governs the case before it must apply the precedent, overrule it, hive off a new rule from the rule established by the precedent, create an exception to the rule, or distinguish the precedent. In hiving off, a new legal rule is carved out of an established rule to govern a subject that prior to the hiving-off fell within the established rule. The new rule then lives alongside the established rule. Exceptions differ in a fundamental way from hived-off rules. Hived-off rules are free-standing. In contrast, exceptions have no meaning except in the context of the rule from which they are an exception. Distinguishing may be fact-based or rule-based. In fact-based distinguishing the deciding court concludes that a precedent should not be applied to the case before it because of a difference between the facts of the two cases. In rule-based distinguishing the deciding court concludes that a precedent that plausibly applies to the case before it does not actually do so in fact.