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When Marks Misses the Mark: A Proposed Filler for the "Logical Subset" Vacuum

By Damien Schiff
March 20, 2008
The discernment of the holding, or ratio decidendi, of a case can be exceedingly difficult to master. The task is hard enough when the relevant holding is to be found in a single judicial opinion. Thus, if lawyers find it challenging consistently and accurately to infer the legal rule from one opinion, it stands to reason that, a fortiori, they will be helpless to distill one rule of decision from multiple opinions. Yet that daunting task is precisely what lawyers must attempt frequently with the so-called “split decisions” of appellate courts...