The tools and techniques of judicial creativity and precedent

The backdrop of history illuminates the common law principles employed in modern American jurisprudence. Effective advocates think deeply about the multifaceted analysis implicated in common law reasoning, and creatively offer solutions backed by arguments grounded in binding and persuasive precedent, history, social facts, logic, and policy. Effective advocates study a host of other legal resources and background information.

In all but the easiest appeals, the most effective advocates look at far more than the recent or leading cases on the legal principle that is at issue. Developing arguments to support or refute the application of a common law principle or doctrine requires creativity, excellent research skills, and thoughtful analysis because such appeals are decided on the basis of a potentially broad range of jurisprudential concepts and approaches. The potential impact of changing societal needs and evolving social and moral beliefs, coupled with the greater leeway involved in common law judging, provides the advocate with special challenges and opportunities. Rather than formal logic, the 'felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices, which judges share with their fellow-men, have had a good deal more to do with the syllogism in determining the rules by which men should be governed.' Oliver Wendell Holmes, The Common Law 5 (Little, Brown and Company 1963). Velvet Dove Restr., Inc., 725 F.2d 300 (Okla. As the Oklahoma Supreme Court explained, 'inherent in the common-law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying common-law to new situations as the need arose.' Brigance v.

No textual touchstone, such as a statute, constrains the common law courts. These decisions then become the raw material for deciding the appeals that follow. Published opinions set forth holdings and the rationales for them. The common law is judge-made it develops through judicial decisions issued over time. Oliver Wendell Holmes famously observed that 'he life of the law has not been logic it has been experience.' Oliver Wendell Holmes, The Common Law 5 (Little, Brown and Company 1963).

The tools and techniques of judicial creativity and precedent