No naked ladies in the books in our law school library (at least, none that I found), but some of the books were still pretty old and dusty. Our Canadian law school actually had a copy of United States Statutes at Large, which, according to the rubber stamps borne by the volumes, had been a part of the US House of Representatives Library (or somesuch) in 1938. I think I was the first student in twenty years at least to use them, as the layer of dust was incredible.
Just to go off on a tangent here…
Why do we care about old precedents anyway?
Why is a ruling from some drunken bought off judge in 1850, or some bigoted jury in 1950 considered relevant today?
Surely the conditions and circumstances of each ruling are historically unique, and therefore only applicable to that particular case, at that particular time?
Why, today, isn’t each case considered on its individual merits, regardless of precedent?
Not sure what you’re asking. Are you suggesting that we should use something other than common law?
I am not a lawyer, but your response suggests to me that there is more depth to this issue than I understand. Therefore, I don’t understand your question; and that is the point of my question.
However, for the sake of argument: I have suffered a loss at the hands of someone else.
Therefore, I would expect to be compensated for that loss by the offending party.
It seems to me it is pretty straight forward: these are the facts, this is the loss I have suffered, therefore this should be the outcome. There may be some qualifications reflecting specific circumstances.
So what does it matter that there was a similar case in 1962, or 1865?
However, to my understanding of the system, these previous cases have some kind of bearing on my case, and have a major influence on the outcome of my case.
My question is “why is that”?
I would point out it also depends on the area of law and the type of practice that you do. Lawyers who do mostly transactional work need to do less research and in less depth and can live with mostly online materials. Litigation and trial lawyers need to go into the minutia of each case, while Appellate Lawyers need to go even deeper.
Precedent is relied upon in our system of law because of the principle that similar cases should be decided similarly. Ideally the legal system will be more consistent that way, and lawyers who do their research can see that, for instance, if A does thus-and-so to B, the result will probably be a judgment for A, and can advise their clients accordingly. The individual merits of the case matter, of course. A judge or magistrate looks to precedent because precedent suggests (or ought to suggest) the best ruling under the circumstances. Two, or three, or three hundred heads (all of the judges to have considered the legal issue before) are better than one. Also, a ruling by a higher court on similar facts will (probably/arguably) be controlling, so a reliance on precedent means the parties to a lawsuit will have a better understanding from the outset of how the case will probably ultimately be decided. Of course there are always exceptions.
For more: Precedent - Wikipedia
Well, this is hard to answer in a way because it is so fundamental to our legal system. But basically, rather than have everything written in statutes, we rely on precedents. You should read the Wikipedia article on common law: Common law - Wikipedia, especially as contrasted with civil law: Civil law (legal system) - Wikipedia
That’ll give you a basic overview of how this all works.
For example, in my practice, most cases have something to do with negligence. Now I know that the four elements of negligence are 1) the existence of a duty; 2) the breach of that duty; 3) causing 4) an injury.
How do I know that? It’s not in any statute. I know it because we have hundreds of years of legal precedent defining the elements of negligence. And further, if I have a question about, say, what constitutes causation, there are many many cases dealing with that.
Likewise, if I’m dealing with an area of law that is statutory (i.e., there is a written statute governing that area), I still need to research case law to find out how the law is interpreted and applied.
So, the whole framework we use to analyze an issue is based on precedent, and the consistency of the system depends on consistently applying the precedent.
I hope that answers your question. It’s a bit broad, and I’ve tried to simplify it some. I’m sure others can add on to what I’ve begun.
Aha. You skipped a step. You have facts/loss and then you skipped to the outcome. Where’s the step where you analyze the facts with respect to legal standards?
Because if that earlier case was decided correctly, that means that it came up with some kind of standard for judging what kinds of facts should lead to what kinds of outcomes. A good case offers a framework for analyzing the facts and then determining whether you should be compensated for your loss.
For example, as TheFifthYear pointed out, in a negligence case, one of the key questions is whether the breach of a duty of care caused the loss. In American law, this is termed “proximate cause.” What does proximate cause mean? It means that the breach of duty must have some close connection to the harm.
In order to illustrate this concept, law students are shown Palsgraf v. Long Island Railroad Co., an 82-year-old case, in which this happened:
It sounds like a Rube Goldberg invention, but it really happened.
The court said that, yes, it was a breach of a duty of care to allow the man to run across the platform with a package of fireworks, but, the injury to Palsgraf was not proximate, too attenuated, too far down a chain of unforeseeable events. It wasn’t foreseeable for Palsgraf, who was so far away from the “zone of danger,” to be injured by a man carrying a package of fireworks at the far end of the platform. Even if the guy had intentionally set off the fireworks from where he was, no reasonable person would have foreseen that Palsgraf would have been in danger of being hurt.
A case like this forms the basis of a model of analysis. When you are presented with new facts in a new case, you analyze the facts, the chain of events. You ask whether it was like the situation here – was the injury too attenuated from the breach of the duty of care to find that it was a “proximate cause” of the injury?
It’s part of the same principle of having all laws in writing. The idea is that anyone should be able to do prior research and determine whether some proposed action is illegal or not. They shouldn’t have to guess and then find out at a trial whether or not the judge thinks it’s illegal.
Remember, TV is all about appearances. If you’re talking about commercials for law firms you’ve seen, then they want to make sure all those fancy-looking books get in the shot to give them an air of credibility and prestige. That’s their real purpose, even if they’ve never cracked a one of 'em.
Not sure if this was mentioned, but one of things I found invaluable was the Westlaw key system. It could let you winnow through a hugh stack of potentially relevant cases very quickly by jumping to the section of a decision dealing with that one narrow aspect of the law. If I were in practice today I would have a subscription to Westlaw online. If I had money to burn I might add a subscription to the digest and I would definitely want my own copy of CJS (Corpus Juris Secundum) - there’s no better resource for getting a good overview of the law in an area where you don’t have much experience.
Thank you for the responses; I have also read the Wiki links posted above. In doing this reading, I find that it raises more questions. (At least in my mind!!)
Previously, I made the somewhat facetious remark regarding a “drunken paid off judge”. As I understand the readings, a ruling made by him could/would be considered a precedent. So, assuming a corrupt ruling on his part, this would introduce a distortion into all similar cases. Does this mean that injustice would prevail in similar cases for eternity?
Also, the related readings I have just finished on “Civil Law”, “Roman Law” and “The Napolianic Code” seem consistent with my original concept of each case being considered on its individual merits.
Would not these individual codes provide the “legal standard” and “points of reference” that some of the other posters here have referred to? Would this not be wholly more efficient and effective than referral to mountains of redundant precedents?
Which raises the question as to why does much of the English speaking world seem to use the common law system, while Europeans seem to universally use a codefied system?
Is this a cultural thing, or is there actually an objective benefit from using common law over a codified system?
I realise that my questions are huge, however my curiosity has been whetted. So if anyone could recommend a good book on this, in addition to some quick answers to the above, I would appreciate that.
It’s not that easy to establish precedent. First of all, ordinary trial judges are obligated to follow precedent; they’re not allowed to male new precedent. Second, precedent is oklu esablished wuen a court issues a reasoned opinion justifying a decision and oddering the court’s reasoning in detail. Third, the whole point of the appeals system is to ensure that trial courts do not make errors of law. Fourth, the whole adversarial system as well as the jurisprudential institution seeks to combat legal error. Fifth, there is a court system that polices judges and would take seriously a charge of drunkenness.
First, there aren’t “mountains of redundant precedents.” Precedents are well known by the experts in the field.
Second, it has been the experience of those within the common law system that it it not only impractical jut impossible to write statutes and regulations with the degree if specificity that is required in real life. And even if it could be, it would rob the system of the flexibility that judges have to actually use their reason to examine the matters that only they, not some distant legislature busy looking at the big picture, and to actually do justice.
I have very little experience with the civil law system, but my understanding when speaking to lawyers from those systems is that first of all judges are far more powerful than they are in common law systems and ssecond that although the concept of precedent is rejected as a formal matter, as a practical
matter it is nearly impossible for judges NOT to take into consideration prior ruling on similar issues.
precedent is only binding on subordinate courts. So a ruling in an appellate court would be binding on all trial courts. A ruling by a state supreme court is binding on all appellate and trial courts - and so on.
The same thing happens in the federal court system. You sometimes get some confusion where state and federal jurisdiction overlap and then you can have the federal court applying state law and (I suppose) vice versa.
As to non-common law countries, I’m not sure how that works. The closest we have to that is the law in Louisiana which I believe is still based on the Napoleonic code to a great degree.
The problem with using just a code is that even the code has to be interpreted - just the same as our statutes and regulations require interpretation. So I don’t think you can ever avoid precedent no matter what sort of system you have.
Cases are decided on the facts of the case and one the things you do as a lawyer is try to “distinguish” the cases that go against you from your case and read the ones in your favor as inclusively as possible.
I guess that’s a start regarding your questions.
I’d strongly suggest one or the other. I used to keep both in the same book, and I’ve almost shot myself in the nads when I only had a minute between depositions and reeeeeally needed a drink.
So use two different books.
Your question does not appreciate the level of abstraction from the tyranny of factual detail that precedents supply. Donoghue v Stevenson is the case which essentially invented the tort of negligence. It is about a person who was made ill by purchasing and drinking a bottle of ginger beer with a decomposing snail in it.
But the House of Lords decision about who won is not restricted to the facts of the case, as if it might be different if it was a decomposing mouse, or a bottle of Coke. Precedents discuss ur-principles at a high level of abstraction about why the drinker should win.
Prior to Donoghue v Stevenson, one could only sue someone with whom one stood in a relation of “privity of contract”, that is, someone from whom one bought the bottle of drink. In principle, one could sue the shopkeeper who could sue the distributor who could sue the manufacturer, but the problem was that since drinks are sealed, and in opaque bottles (as this one was) there was no way the shopkeeper who sold it was morally liable for any negligence. And if the long chain of access to the organisation that did bear moral responsibility and had lots of money (the manufacturer) broke down (perhaps because the shopkeeper went broke) the purchaser was stone out of luck.
So using the facts as a matrix, the House of Lords redefined who owed various duties arising out of the relationships involved. It did away with the privity rule. This was done at an abstract level, and then those abstractions were applied to the facts of the case. But the abstractions then applied to all cases which came within the terms of the abstract reasoning, not just to cases that were factually similar at the level of tiny details. The reasoning applied liability to manufacturers not just of ginger beer, or coke, or softdrinks or food products but to cars and clothes and pretty much any manufactured product.
The point is, precedents are not about looking for cases which are factually similar to yours. They are about cases in which the high level principles underpinning issues of liability are decided.
Your simple analysis that “I have suffered loss at the hands of someone else therefore I should be compensated” is far too general to be useful. For example, how remote can my loss be from the behaviour of the defendant so that I can still reasonably expect to be compensated? If I am welding on a building on a shipping dock, and a spark flies off and sets fire to piece of paper which falls into some oil slick on the water, which catches fire and the flames travel to a ship at a dock some distance away, then should I, a welder, be liable for the cost of a ship? I can look to the Wagon Mound cases where facts like that arose, but those cases decided not just the principles which apply where there is welding, oil slicks and ships, but in order to decide those facts established the principles of remoteness of causation generally. These applied for a considerable period of time (until themselves modified by other precedents).
Get the idea?
Ahhhhh…
Now I get it. A very clear explanation, right on point.
Thank you.
This is why lawyers are “needed”-the ambiguity of the law (written by lawyers) gives rise to the need for lawyers to interpret the ambiguous laws.
Frankly, all laws ought to be reviewed every 25 years or so-and the obsolete ones tossed out-but that would upset the legal tradition.
“I don’t understand it so clearly it’s a fraud.”
The problem is not the ambiguity of laws, the problem is applying any laws to the complexity of reality in a way that is just. We are not here discuissing drafted statute laws, but case law, which is based on precident (that is, how authoritative cases have decided the same sorts of matter in the past); case law is constantly being reviewed, as high courts either affirm the continuing usefullness of a particular precident, modify it, or conciously overturn it. Far from “upsetting the legal tradition”, this is the common-law 'legal tradition". The point is to have continuity and predictability, with the possibility of change over time to accomodate new realities.