Explain "Case Law" to the Layman

Factual Questions
1

First, to make sure I understand the term, what is the definition of “case law”? Is it simply some huge book of precedents set by the courts along with a long list of every time the original, benchmarking precedent has been 100% overturned (or some fraction thereof)? Can an attorney quote case law in court, or is that right reserved only for the judge? (Is that what the judge researches in his/her chambers before making his/her decision?)

Now, what about States passing laws which limit or undermine Federal authority, such as the legalization of some illegal drugs? (Didn’t CA do this, for one?) Is it explicitly written somewhere that a State cannot do this, or is it only implicit and therefore deemed ok until challenged in a court of law? And when that happens, is the law immediately repealed? If so, this is confusing because it is said courts do not make laws; they interpret them. Thus, I wager such a law is repealed by “de facto” because I presume it will now fail in court every time…but is it left on the books as a defunct law, or is there a vote taken by a state’s legislature to repeal such a law?

Last, what about the State of MD passing (or, being very close to pass) a law to force their Electoral College delegates to vote the way the nation has gone thereby removing their ability to vote as they choose? Would this have to be challenged before anyone wakes up and sees this is one’s State’s attempt to infringe on the scope of the Constitution? What if all States did this? Surely, this would effectly undermine both the purpose for having an Electoral College, and silently undermine the Constitution on this one matter as well, would it not? - Jinx

2

Hehehe, you like to pack about five different questions into one, don’t you? :wink:

“Case law” is a layman’s way of talking about the principle in English jurisprudence of stare decisis, a Latin phrase meaning, roughly, “to abide by the things decided.” It arises out of a combination of two fundamental aspects of English jurusprudence: first, the hierarchical organization of courts, and second the development of large portions of the law through judicial decision, rather than through code-writing. In its most basic concept, the principle has two applications. First, lower courts are bound by the decisions of courts senior to them in hierarchy, and cannot go off and make their own determinations of what the law should be once it has been decided by a court superior to them. Second, once a court has addressed a specific issue, it should not re-address that issue unless absolutely necessary, usually through the passage of time. Thus, for example, when the Supreme Court of the United States said in 1896 that the Fourteenth Amendment could not be used to bar the attempt by Louisiana to segregate passengers on trains according to race (Plessy v. Ferguson, 163 U.S. 537 (1896)), the court did not revisit the concept of the constitutionality of segregation laws under the Fourteenth Amendment again until Brown v. Board of Education, 347 U.S. 483 (1954) some 60 years later.

The result of this principle is that, over time, there are collected decisions in cases which address legal issues, and these decisions are indexed according to a structural organization of the various areas of law. When a new case is pending in a court, one of the jobs of the attorneys representing the parties is to look up the “case law” on the issues the case presents, to see what the relevant decisions are. The attorneys will then do one of two things: argue why those decisions should be read to support their particular arguments in the case at hand, or argue why those decisions should be ignored, either as irrelevant to the case at hand, or on the theory they should be ignored as having outlasted their usefulness. That last argument is rarely successful, because if everyone could do that, stare decisis would be of little value and there would be no continuity of decisional law.

So attorneys regularly brieg the court on what they consider the relevant case law to be regarding an issue before the court in the case at hand. The judge’s task is to read the competing briefs, question the attorneys if need be, do some added research if he/she feels it is warranted (which is what judicial clerks are kept around for, among other things), and then decide the issue in the case at hand as she/he thinks it should be decided based upon the relevant statutory law, if any, the case law interpreting such law, and the facts before the court.

“Some huge book” barely begins to describe “case law.” The cases of the Supreme Court of the United States alone occupy roughly 550 volumes, each some two to three inches thick at the spine. When the reported cases of all the Circuit Courts of Appeal are added in, you are talking several shelves of books, enough to fill a small law office library. Add to those the decisional law of the Supreme Court of whatever state you work in, and you are talking a substantial amount of reading material.

Fortunately, all is not lost. Even before the magic of the Internet, “digests” of cases existed, which indexed the decisions according to an organization of all law addressed. For each case, whatever company is making the digest will abstract certain salient points of law from the decision, and then place that point, along with the citation to the published decision, under the legal point involved. For example, if I want to know about cases regarding searches of automobiles at drunk driving checkpoints, I would look up the digest of cases dealing with Fourth Amendment, Search, Warrantless, Automobile, Checkpoints, perhaps (I’m making that up, since I don’t bother any more with printed digests, thanks to the magic of the internet). There, I would find a list of the abstracted points from the various cases that whoever published the digest thought were important enough to list, and then I would write down the citations I felt potentially applicable and go look up those cases to see what the court actually said. Rinse and repeat.

Mind you, this is a VERY brief condensation of a topic that itself usually requires a semester course at law school… :wink:

3

Now, to address your second issue, conflicts between state laws and the federal constitution.

Early on in the history of the Supreme Court of the United States, it was decided that the Court had the power to review whether or not state laws were incompatible with the Constitution, or with federal law, and, if so, said laws became unenforceable. The main case is Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In it, Justice Story established (Chief Justice John Marshall was unable to participate as he had a personal interest in the outcome of the case) that the Supremacy clause of Article VI of the Constitution, combined with the grant of jurisdiction under Article III to the Supreme Court over all cases regarding federal law and the constitution, meant that the court was the proper body for deciding whether or not states, through the laws they had made, had overstepped their limitations on sovreignity. This is not an explicit statement in the Constitution, but, like the decision in Marbury v. Madison, which arrogated to the Supreme Court the power to declare acts of Congress unconstitutional, was assumed to exist in order to carry out the apparent intent of the Constitution, as it had been written. In short, someone’s got to resolve such issues, and the Supreme Court appeared to be the best bet.

So, let’s say a state passes a law. For kicks and giggles, we’ll say that Ohio passed a law which prohibited anyone from importing wine from California, ostensibly because of health issues, but in reality because it is so much better than the wine produced in the Lake Erie district, severely limiting sales of Ohio wine (side note: do not EVER bother to drink Lake Erie wineries’ products). There being a number of people in Ohio who love California wine, one of them files a lawsuit in federal District Court, requesting a writ of mandamus, ordering the state of Ohio to allow the importation of California wine, on the grounds that the statute passed by Ohio is in conflict with the Constitution’s provision that Congress gets to regulate interstate commerce, and has done so with regard to wine.

The matter proceeds to hearing, with both sides (the plaintiff, John Doe, let’s say, and the defendant State of Ohio, which simplifies things; don’t ask… ) offering both briefs of case law and oral arguments to the judge. The judge decides that Congress hasn’t regulated this particular area of interstate commerce, so Ohio is free to do so, and dismisses the petition. Plaintiff appeals, to the 6th Circuit Court of Appeals. After briefing and oral arguments, the 6th Circuit panel hearing the case overturns the decision of the judge, declaring that the Supreme Court has specifically stated in the past that a law which mentions an area of interstate regulation in passing, while talking about anything having to do with alchohol, has as a result prohibited the states from interfering with their own laws on the subject (this is a made up precedent, for the purpose of this hypothetical). They issue an order to the judge to grant the petition and issue the writ requested by the plaintiff.

Ohio is not happy, so it petitions the Supreme Court of the United States for a Writ of Certiorari (meaning it requests that the Supreme Court hear its appeal of the decision at the 6th Circuit - not something the Court is mandated to do under the law, but up to its discretion). Cert is granted, the Court feeling that the issue is very important, or perhaps because just last month the 4th Circuit reached the opposite opinion regarding Virginia’s attempt to do the same thing. Again, briefs are filed, arguments heard, and the decision of the Court is issued. The Court, based on its past decisions, and the facts and issues in the instant case, decides that Ohio cannot bar California wine for health reasons. The law is declared unconstitutional, the case is returned to the District Court with instructions to issue the writ as requested.

Now, you ask, what happens to Ohio Revised Statues §41.666, the wine-banning law? Well, it sits there in the books unless and until someone comes along and removes it. BUT, it will never be enforced, because it has been declared unconstitutional. Whenever someone looks up the statute, they will usually be informed (depending upon the method they use to look it up) that it has been declared unconstitutional. Possibly, at some future date, should Ohio’s legislature undertake a recodification of its laws, they might remove the statute from the books, but it otherwise has no effect.

4

You ever wonder about the Common Market? The idea was that if everyone had one set of rules, standards, taxes and eventually currency, thing get easier.

OK, go back to the Good Old Days. Laws were few, and courts spread out. Good King Someone ordered his judges to come back to Westminster once a year to go over their notable cases. In this way all the courts came to understand what was going on elsewhere. The law became more uniform, the ‘Common Law.’ With one law over a wide area, things became easier.

The modern Anglo-Saxon law works the same way. Rather than try to figure out the law on their own, courts also rely on the cases tried elsewhere and cases that have a logical bearing on the matter before them. It is all based on the idea that there is no reason to reinvent the wheel each time around.

Does that help?

5

Now, as to this question, you are addressing an actual issue of what the Constitution mandates with regard to the Electoral College. When deciding such an issue, it is always a good idea to start with the actual language of the Constitution (something the Court itself tends to forget from time to time :rolleyes: ).

Italics mine.
So, we see, the Constitution is silent on your specific issue, but it does offer some guidance. The electors are chosen by the states as they see fit. These Electors then meet and vote, then transmit the result of their vote to the Congress. The question, then, is whether or not a state can bind the electors as to how they vote.

Although you may not think so, given the basic question you are asking, you had best hope the states can bind those votes to some extent. Why, you ask? Because if they can’t, who is to say the electors you and your fellow citizens choose on Election Day in November, 2008, will vote for the person they are “pledged” to vote for, which was your reason for selecting them in the first place? Remember, you don’t vote for the Presidential candidates, you vote for the slate of electors who promise to vote for the Presidential candidate you want. So, suppose you vote to select the slate of electors pledged to vote for Republican nominee John McCain, and in a bit of a surprise, sufficient Maryland voters agree with you, and that slate is indeed selected. They get together on the date appointed, and, much to your disgust, angry with John McCain for the fact that he was seen at the celebration after his “election” partying with a known steroid user, they choose to vote for Tommy Thompson, who, at least, doesn’t party with Barry Bonds. Unfortunately, this choice by Maryland’s electors causes McCain to lose the election to Hillary Clinton, Democratic nominee (and front for her husband, who has been quoted as saying, “just you wait…”). Imagine the uproar…

Now, while this sort of apocalyptic result has not happened (at least not in the last 100 or so years), there have been cases of “rogue” electors. This has caused some states to want to bind their electors; at least 13 states have such laws, according the the analysis of the Constitution published by the Library of Congress’ research divison. None of these laws has been addressed in a court decision. The closest anyone came was a decision of the Supreme Court of the United States allowing Alabama’s Democratic Party to require elector candidates to pledge to support the national convention’s nominee (Ray v. Blair, 343 U.S. 214 (1952)). So, it appears to be the case that states are free to impose restrictions upon electors and how they vote.

I like the following quote which is found in the Analysis from the Library of Congress:

6

I’m afraid you’ve got it turned around. Magna Carta, c. 17 provided:

This marked the division of the political court of the King, from the proto-judicial courts, the ancestors of the royal courts (King’s Bench, Common Pleas, Exchequer). From 1215 onwards, the judicial courts sat only at London, in Westminster Hall. That centralised judicial system, coupled with the point that the royal courts had what in retrospect we would call supervisory jurisdiction over all other courts in the kingdom, is what enabled the development of the English common law.

The royal courts did go out on circuit into the country side, in various forms (commissions of assize, courts of oyer and terminer, etc.), and made provisional rulings (nisi prius), that could then be taken back to Westminster for consideration by the full courts. However, the courts were located at Westminster.

7

Good lord, DSY - who you gonna bill for that/those treatise[s]?! :wink:

8

oops - I forgot to mention my favourite circuit court: commisions of gaol delivery!

Just like FedEx, only centuries ahead of its time! :stuck_out_tongue:

9

DSYoungEsq, Thank you so much for the explanation, if nothing more than to explain what legal clerks are used for. :wink:

10

DSYoungEsq, great responses.

One point that didn’t get covered. May the Maryland law be challenged for constitutionality at any time, or must it wait for after the election when they actually do the voting to give the complainant standing?

11

Supreme Court: a place where the finest legal minds in the nation meet, to serve as law clerks to the Justices. :slight_smile:

12

One of the advantages of not being in the business of attorneying any more is that I get to do pro bono work without worrying about lost income for the firm. :smiley:

That would depend upon the law being challenged, and the factual situation under which it arises. In general, one must have “standing” to bring a suit, and there must be an actual controversy over which the suit is being filed. This prevents the courts from being used as deciders of speculative issues, as well as precluding just anyone who wants to run around challenging things from doing so.

Getting into an actual discussion of when a case or controversy would actually arise in the situation posited by Jinx, or who would have “standing” to bring an action is beyond the scope of what I am willing to discuss (for the simple reason that I have a math class in about 30 min., and can write all damn day about things like standing :stuck_out_tongue: ). We could postulate facts in our barely fleshed out hypothetical which would allow a suit almost immediately, or we could avoid that by choosing other factual assumptions, which would require that a suit await an attempt by some elector to vote in a fashion contrary to the law.

One likely scenario: an elector chosen in the election in November files a suit to have a determination made as to whether or not he/she can vote in violation of the putative law.