Article

A korlátozott precedensrendszer hatása a kúriai ítéletek hivatkozásaira

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Abstract

A jogrendszer működésében meghatározó szerepet játszik a bírói gyakorlat, és ez különösen igaz olyan területeken, ahol a generálklauzulák tartalmát a bírói gyakorlat alakítja. A bírói gyakorlat feltárása, megismerése a jogászi munka fontos feladata és a jogi érvelés fontos forrása. A tanulmány a nemzetközi szakirodalom alapján bemutatja a hálózatkutatás és a bírói gyakorlat, a precedensek kapcsán született eredményeket. A kutatást ezt követően a magyar korlátozott precedensrendszeren folytatjuk tovább, ismertetve annak főbb jellemzőit, majd a magyar rendes bírósági gyakorlat, ezen belül is a polgári-gazdasági ügyszakos gyakorlat hivatkozási hálózatát elemezzük. A kutatás a korlátozott precedensrendszer bevezetése okán aktuális, mert ezzel a módszerrel a bírói gyakorlat alakulásának olyan összefüggései mutathatók ki, amelyek a joggyakorlat számára is előremutatóak, mivel egyfajta térképet nyújtanak a bírói gyakorlathoz, ezáltal az adott jogkérdésre irányadó precedensképes határozatokhoz. A kutatás elsőként a Kúria döntéseinek hivatkozási hálózatát vizsgálja, majd ugyanezt a Kúria döntéseinek jogi érvelésében elemezzük, végül összevetjük a precedensképes határozatok és a szerkesztett határozatok hivatkozási dinamikáját. Összefoglalóan megállapítható, hogy a kúriai döntések jogi érvelésében a korlátozott precedensrendszer bevezetésével jelentősen megnőtt a szerkesztett határozatokon kívüli BHGY-határozatokra hivatkozások átlagos száma. Megállapítható az is, hogy a BHGY-határozatok hivatkozásának növekedésével nem csökkent a szerkesztett határozatok szerepe. A szerkesztett határozatok használatának okai közül a magunk részéről idesoroljuk a határozatok kereshetőségét és általában a határozatok szerkesztését (rövidítését és a jogi esszencia kiemelését), valamint az elvi tételek azonosítását. A hálózatkutatási módszerekkel a tanulmány bemutatja a hivatkozások gyakorlatának dinamikáját, tendenciáját.

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An enduring piece of legal wisdom contends that the value of court opinions depreciates as they age and a variety of factors lead some cases to depreciate faster than others. We measure depreciation as the change in the frequency with which Supreme Court cases are cited as a function of their age. We then examine whether the rate of depreciation varies systematically based on ideological considerations, opinion characteristics, and citation history. Our results indicate, first, that precedents depreciate rather quickly and, for example, depreciate about 81 percent and 85 percent between their first and 20th years of age at the Supreme Court and courts of appeals, respectively. Second, few of the variables in our analysis have any appreciable influence on the pace of depreciation. Two variables capturing the citation history of a case have the most notable influence on depreciation, but even their effects are reasonably modest and somewhat short‐lived. Third, while our study focuses on depreciation (i.e., the change in the frequency of citation over time), it also produces an important implication for citation itself (i.e., the number of times a case is cited in a given year). We show that prior studies significantly overestimate the effect of almost every variable used to explain citation rates because those variables become substantially less influential as cases age. Future studies must therefore take into account that the effect of an independent variable on citations is conditional on the age of a precedent. This study therefore contributes to our understanding of the process by which law, as observed through citations to cases, changes.
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It is generally agreed that some judgments by the Court of Justice are more important than others, but the ability of traditional legal methods to identify such judgments is inherently limited. In this article, we apply various tools developed in network analysis to identify which judgments are the most important as legal precedents. The study reveals that certain well-known judgments, like van Gend en Loos, have limited importance as precedents, while other judgments, like Bosman, PreussenElektra and Schumacker, are likely overlooked.
Article
In common law jurisdictions such as the United States, courts frequently resolve disputes by citation and analysis of reports of prior legal cases. The law may thus be thought of as a giant network containing textual information embedded in cases (nodes) and relationship information called citations (arcs) going from node to node. In recent years, the science of studying networks has developed and, while there had been some rudimentary attempts to look at subsets of the vast legal network, until recently there had been little done to take advantage of modern technology and modern network theory in that effort. This is a somewhat technical article written for a Mathematica conference that borrows techniques developed largely in sociology and physics to learn about Supreme Court jurisprudence simply by a study of its network structure. It is very much complementary to the work of Professor Thomas A. Smith of the University of San Diego Law School on "The Web of Law." Although the first half of the paper focuses on tool building and computer science issues in a way that may put off more law-oriented readers, the second half of the article relates quite directly to the law. It shows that federal jurisdiction and commerce clause cases are, quite literally, central to Supreme Court jurisprudence. It argues that the degree distribution of the Supreme Court network does not quite fit that of a scale free network but rather fits more closely that of a Weibull distribution, which is generated by the lifetime of objects. It suggests that rights of free speech and association may lie at the "core" of Supreme Court jurisprudence and thus pose issues of particular complexity. It is my hope that this article, along with other recent work, will catalyze a set of studies in this field that will expand to cover other judicial systems and yet more sophisticated analysis of the rich network information they contain.
Article
Scientists and mathematicians in recent years have become intensely interested in the structure of networks. Networks turn out to be crucial to understanding everything from physics and biology, to economics and sociology. This article proposes that the science of networks has important contributions to make to the study of law as well. The network of American case law closely resembles the Web in structure and can be studied using techniques that are now being used to describe many other networks, some found in nature, and others created by human action. Studying the legal network can shed light on how the legal system evolves, and many other questions. I present in this article the preliminary results of a significant citation study of nearly four million American legal precedents, which was undertaken at my request by the LexisNexis corporation using the Shepard's citation service. This study demonstrates that the American case law network has the overall structure that network theory predicts it would. It is a highly skewed, scale-free, or similar network. The remarkably great degree of skew is significant. Precendential authority is concentrated in a small number of cases. The vast majority of cases are rarely or never cited. In that it consists largely of dead cases, the Web of Law closely resembles scientific paper citation networks, which consist mostly of dead papers. This article has three parts. First, I introduce some basic concepts of network science, including such important ideas as nodes, links, random graphs, evolving networks, scale-free networks, small worlds, the rich get richer dynamic, node fitness, and clusters. In Part II, I show that both over all and by particular jurisdiction, the Web of Law is a scale-free or similarly highly skewed network. In Part III, I describe some insights that appear from this application and suggest areas for future research. The Web of Law has a structure very similar to that of other real networks, such as the Web and the network of scientific papers. Indeed, preliminary analysis suggests the citation network of U.S. Supreme Court cases is nearly identical to the network of high-energy physics papers, and is well described by a two-power-law model. The Web of Law is organized with hub cases that have many citations and the vast majority of cases, which have very few. The distribution of citation frequency appears to be well described by a two power-law distribution, very similar to scientific paper citation networks. Many promising hypotheses can be generated by considering the law as a scale-free network. State and federal systems can be examined empirically to measure how well integrated each is with itself, and with each other, and how this is changing over time. Legal authorities can be measured to determine whether their authority is emerging or declining. Institutional bodies, such as courts, can be examined in the same way. Clusters of cases, which will reveal the semantic topology of law, can be mapped to determine whether traditional legal categories are accurate or require reform. These methods can be used to develop computer programs to improve the efficiency of searching electronic legal databases. Network theory hints at complex, but analyzable, interactions between the legal doctrines of precedent, and the systems of common law and multiple sovereignties. Because law grows and because it has doctrines of authority, it creates a network of a certain shape, which spontaneously organizes itself. Legal databases, which are huge, precisely documented, and readily accessible, present a perfect opportunity for the application of network science. This research would produce new knowledge of general jurisprudence that has simply been impossible until now, when we have the necessary advances in network science, the fast computers, and the existence of a complete record of the legal network in electronic form, waiting to be explored.
Conference Paper
We describe and discuss the use of semantics-based citation networks in a new legal research tool. Such networks are generated based on citation relations between cases found in legal corpora as well as legal issues being discussed with these citations. Unlike traditional tools, the System allows legal professionals to efficiently study legal issues without having to go through whole cases or tedious manual citation search. This shift of focus from cases to individual issues within cases would greatly reduce time required for attorneys and legal scholars who have specific research problems in mind. The Systems User Interface (UI) allows users to easily navigate in the citation networks and study how citations are interrelated and how legal issues have evolved in the past. Various forms of natural language processing (NLP) technologies are used in building the metadata behind the prototype. Formal evaluation confirmed the Systems capability of accurately identifying citations relevant to given legal issues.
Article
For most global software companies with a client base that covers a large number of regulated businesses, regulatory compliance represents a significant challenge. The world of compliance has become increasingly complex due to the overwhelming number of regulations, laws, and standards that are introduced every year. These laws may vary significantly in their scope and applicability depending on the industry sector and the geographical area of the end client. In addition, many of these laws are created by different legislative bodies resulting in overlapping and sometimes conflicting provisions. To further complicate matters, laws are often created based on existing ones, forming a complex set of interdependent rules where changes made in one place can propagate to affect, sometimes in an inconsistent manner, many other laws. There is clearly a need to investigate techniques and tools that can alleviate IT solution providers from the complexity of dealing with regulatory compliance. In this paper, we present an approach and a supporting tool that aim to facilitate the analysis of multiple regulations. Our approach is based on the exploration of the citation relationship that links various laws together. The citation relationship is represented by a citation graph that can be used by an analyst to navigate through the provisions of various interrelated laws to uncover overlaps and possible conflicts or to simply understand the content of specific law documents. We also present a tool called CompDSS (Compliance Decision Support System) that supports our approach. Finally, we show the effectiveness of the presented approach by applying it to three regulations, namely, SOX, HIPAA, and GLBA.
Article
The United States Code (Code) is an important source of Federal law that is produced by the interactions of many heterogeneous actors in a complex, dynamic space. The Code can be represented as the union of a hierarchical network and a citation network over the vertices representing the language of the Code. In this paper, we investigate the properties of the Code's citation network by examining the directed degree distributions of the network. We find that the power-law model is a plausible fit for the outdegree distribution but not for the indegree distribution. In order to better understand this result, we construct a model with the assumption that the probability of citation is a per-word rate. We calculate the adjusted degree of each vertex under this model and study the directed adjusted degree distributions. These adjusted degree distributions indicate that both the adjusted indegree and outdegree distributions seems to follow a log-normal form, not a power-law form. Our findings indicate that the power-law is not generally applicable to degree distributions within the United States Code but that the distribution of degree per word is well-described by a log-normal model. Comment: 4 pages, 6 figures, 2 tables.
Article
We construct the complete network of 26,681 majority opinions written by the U.S. Supreme Court and the cases that cite them from 1791 to 2005. We describe a method for using the patterns in citations within and across cases to create importance scores that identify the most legally relevant precedents in the network of Supreme Court law at any given point in time. Our measures are superior to existing network-based alternatives and, for example, offer information regarding case importance not evident in simple citation counts. We also demonstrate the validity of our measures by showing that they are strongly correlated with the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court. In so doing, we show that network analysis is a viable way of measuring how central a case is to law at the Court and suggest that it can be used to measure other legal concepts.
A bírói jogalkotás és alkotmánybírósági kontrollja
  • Lábady Tamás
  • Frederick Schauer
Sangick: The Authority of Supreme Court Precedent. Social Networks. 2008/1. sz. 16-30. 17-19
  • James H Fowler
  • Jeon