# How far back can a US attorney go in making an argument based on case law precedent? **URL:** \ **Category:** Factual Questions\ **Created:** [February 27, 2009, 8:39am UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639 "2009-02-27T08:39:01Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [February 27, 2009, 8:39am UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/1 "2009-02-27T08:39:01Z")
Pre United States British law? Ancient Roman law? What 's the limit? ---
**Author:** ![Tabby\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/6a8cbe/32.png) [@Tabby\_Cat](https://boards.straightdope.com/u/Tabby_Cat)\ **Post date:** [February 27, 2009, 8:52am UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/2 "2009-02-27T08:52:47Z")
Hm. I know I’ve cited cases going back to the 1880ish period before… in fact - here we go Harris v Gamble (1878) 7 Ch.D 877 Rutter v Tregent (1879) 12 Ch.D 758 Of course, this is the context of UK/Singaporean law, but this is the first reply, so… 😛 ---
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [February 27, 2009, 9:02am UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/3 "2009-02-27T09:02:44Z")
I have the impression that Marbury v. Madison (1803) still comes up once in a while. I’m curious whether case law is referencable (? usage) beyond that date. Or, failing that, beyond 1789. ---
**Author:** ![cckerberos](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@cckerberos](https://boards.straightdope.com/u/cckerberos)\ **Post date:** [February 27, 2009, 11:47am UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/4 "2009-02-27T11:47:40Z")
[Just a wiki cite, but](http://en.wikipedia.org/wiki/Law_of_the_United_States): > [@](#): > > English law was formally “received” into the United States in several ways. First, all U.S. states except Louisiana have enacted “reception” statutes which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[7] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony’s founding, while others are deliberately vague.[8] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form[9], such as the heightened duty of care traditionally imposed upon common carriers.[10] > > Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[11] > > … > > Today, in the words of Stanford law professor Lawrence Friedman: “American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention.” ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [February 27, 2009, 12:06pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/5 "2009-02-27T12:06:29Z")
It really depends on what level you are at (granted not a US lawyer,but from a fellow common law jurisdiction). If its a simple contract or Tort case at first instance, there really is no need to look very far. At appellate level, well even relevant foreign cases might go in, they are persuasive. My own experience with US Law is that law students are familiar with with landmark from England and Wales and may well know how the law in a certain area is developing. This goes against the image of the aloof US legal system. ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [February 27, 2009, 2:01pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/6 "2009-02-27T14:01:36Z")
There is no formal rule that restricts citing case law that is or is past a certain age. While the general notions or ideas of Roman law may still be around, there are no known exact Roman statutes I’ve ever heard of that could be cited. Similarly, there’s no book I’ve ever known that has actual Roman cases which could be cited. Realistically, however, citing very old case law or statutes is not very helpful to most arguments since any legal argument is likely either much more sophisticated or nuanced than very old law or relies on the law as it has changed through more recent case law. There are two kinds of authorities that can be cited - binding authority and persuasive authority. Binding authorities are cases or statutes that must be followed by a particular court as a matter of law, such as a U.S. Supreme Court case whose ruling deals with the issue at hand and relies on the U.S. Constitution for the basis of its decision. Persuasive authority is anything that isn’t binding on the particular court but the court can look upon as something useful or advisory, such as written appellate cases from other state or federal circuit courts or even foreign courts. Any kind of Roman or pre-Revolution British American law, if any could be used in a substantive fashion, would fall under this category. Since it wouldn’t be binding on a court in any way, it’s usefulness would be limited, particularly since the law has changed in so many ways since either era. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 27, 2009, 3:33pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/7 "2009-02-27T15:33:42Z")
There is a recent case in New York involving local fishing rights that centers on language in New York’s colonial royal charter. Let’s see if I can dig up a cite… Ah ha! > [@New York Times](#): > > In a book-length memorandum that Mr. Vorpahl prepared for his recently dismissed case, he argues that the Dongan Patent of 1686, issued to the proprietors of East Hampton and Southampton by Thomas Dongan, the Colonial governor of New York under authority of England’s King James II, gave residents the right to harvest the products of area waters ‘‘without lett or hindrance.’’ Similar patents were given to all the English settlements on Long Island. The American Revolution and the establishment of a state government, he says, had no effect on those royally granted rights. The state Constitution specifically recognizes English legal precedent, he asserts, and the pre-eminence of the patents has been upheld by the United States Supreme Court twice since the early 19th century. [Article](http://query.nytimes.com/gst/fullpage.html?res=9C05EEDA143EF937A15751C0A9649C8B63&sec=&spon=&pagewanted=all) No idea how nutty or not Mr. Vorpahl’s case is. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [February 27, 2009, 3:36pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/8 "2009-02-27T15:36:33Z")
When the US became independent of Britain, the new country adopted the existing British common law (the legal opinions of judges, rather than statutes passed by legislatures), giving their new nation a historically strong body of precedent to draw from ([cite](http://en.wikipedia.org/wiki/Common_law#Propagation_of_the_common_law_to_the_colonies_and_commonwealth_by_Reception_Statutes)). Technically, I suppose, any of that common law that has not been surpassed by statute could still be cited as authority, but I’m unaware of any such thing still existing. It’s still common in law school to teach some of the pre-1775 British law in US law schools, mostly for historical context and to show the development of legal thought over time. I reckon every lawyer alive has heard of [Lord Coke](http://en.wikipedia.org/wiki/Lord_Coke_CJ), and Coke’s writings included interpretations of the Magna Carta, so it’s theoretically possible to get back that far. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 27, 2009, 4:00pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/9 "2009-02-27T16:00:40Z")
> [@Camus](#): > > There is no formal rule that restricts citing case law that is or is past a certain age. While the general notions or ideas of Roman law may still be around, there are no known exact Roman statutes I’ve ever heard of that could be cited. Similarly, there’s no book I’ve ever known that has actual Roman cases which could be cited. Well, there’s no reason to cite a Roman statute. It’s not part of the body of common law. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 27, 2009, 4:59pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/10 "2009-02-27T16:59:20Z")
> [@Max\_Torque](#): > > When the US became independent of Britain, the new country adopted the existing British common law (the legal opinions of judges, rather than statutes passed by legislatures), giving their new nation a historically strong body of precedent to draw from ([cite](http://en.wikipedia.org/wiki/Common_law#Propagation_of_the_common_law_to_the_colonies_and_commonwealth_by_Reception_Statutes)). Technically, I suppose, any of that common law that has not been surpassed by statute could still be cited as authority, but I’m unaware of any such thing still existing. Most of the British common law has been surpassed by either statute or more recent US case law. It can always be cited as persuasive authority for whatever reason, but I’m not sure anything before 1800 is binding. It would be interesting to find about the oldest case law that is still binding precedent. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 27, 2009, 6:10pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/11 "2009-02-27T18:10:21Z")
Is not the US Constitution still cited?😕 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 27, 2009, 6:15pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/12 "2009-02-27T18:15:58Z")
> [@Max\_Torque](#): > > I reckon every lawyer alive has heard of [Lord Coke](http://en.wikipedia.org/wiki/Lord_Coke_CJ), and Coke’s writings included interpretations of the Magna Carta, so it’s theoretically possible to get back that far. [nitpick: Coke was never granted a peerage, so it’s not correct to refer to him as Lord Coke. He was knighted, and was appointed Chief Justice of the King’s Bench, so the correct reference is to Sir Edward Coke, Lord Chief Justice.[/nitpick] ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 27, 2009, 6:17pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/13 "2009-02-27T18:17:24Z")
> [@DrDeth](#): > > Is not the US Constitution still cited?😕 The OP is asking about case law, not statute (or Constitution). ---
**Author:** ![ctnguy](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@ctnguy](https://boards.straightdope.com/u/ctnguy)\ **Post date:** [February 27, 2009, 6:31pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/14 "2009-02-27T18:31:05Z")
This is kind of an tangent, but: South Africa has a rather odd hybrid legal system in which some parts are drawn from English common law and others from Roman-Dutch law (that is, the pre-Napoleon law of Holland). I have read a decision of the Constitutional Court of South Africa which was based on the [Corpus Juris Civilis](http://en.wikipedia.org/wiki/Corpus_Juris_Civilis) of Justinian. (Quite an interesting case, actually: it was about a person who, during the apartheid era, had been abducted by the South African military across the border from a neighbouring country, and then handed over to the police in South Africa to be arrested. The decision in the case hinged on the Roman law governing the ability of provincial governors to pursue criminals into other provinces and bring them back.) South Africa is one of the few jurisdictions in which Roman law is still part of the law, because the Napoleonic Code (and related other codes) replaced it in most of Europe. (I believe Scotland is another such jurisdiction.) It is, at least in theory, possible for South African lawyers to cite both Magna Carta and the Justinian Code. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 27, 2009, 7:07pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/15 "2009-02-27T19:07:26Z")
> [@ctnguy](#): > > This is kind of an tangent, but: South Africa has a rather odd hybrid legal system in which some parts are drawn from English common law and others from Roman-Dutch law (that is, the pre-Napoleon law of Holland). I have read a decision of the Constitutional Court of South Africa which was based on the [Corpus Juris Civilis](http://en.wikipedia.org/wiki/Corpus_Juris_Civilis) of Justinian. \ I must say I find the concept of citing precedents that are 1,000+ years old a little odd. For one thing, there’s the “lost in translation” factor- legal language can be so dense even in modern English that a single word or phrase can be cause for days or weeks or years of litigation. I presume South African courts observe a standard language in their proceedings- Afrikaans? English? - so you might end up citing a case translated from Latin to English to Afrikaans, or whatever. \ ---
**Author:** ![ctnguy](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@ctnguy](https://boards.straightdope.com/u/ctnguy)\ **Post date:** [February 27, 2009, 7:26pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/16 "2009-02-27T19:26:02Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I must say I find the concept of citing precedents that are 1,000+ years old a little odd. For one thing, there’s the “lost in translation” factor- legal language can be so dense even in modern English that a single word or phrase can be cause for days or weeks or years of litigation. > > I presume South African courts observe a standard language in their proceedings- Afrikaans? English? - so you might end up citing a case translated from Latin to English to Afrikaans, or whatever. As far as I can recall - and I wish I could find that decision again - it was the Justinian Code as “filtered” through the 16th- and 17th-century Dutch jurists; so there wasn’t really any more of a “lost-in-translation” factor than there is with English case-law precedent of the same period. The decision was in English - as most are - and as far as I can recall it included an English translation of the relevant bits. (I actually have a sneaking suspicion that the judges knew what result they wanted and then went looking for useful precedent.) ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [February 27, 2009, 7:41pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/17 "2009-02-27T19:41:32Z")
I dare say that con law cases are most likely to involve old, old precedents. Most people would concede “original intent” at least _some_ value in constitutional interpretation, and it’s hard to explicate original intent without citing contemporary, usually British, cases and commentary. For example, consider [_Powell v. McCormack_](http://www.enfacto.com/case/U.S./395/486/), recently in the news because of the Burris controversy. The Supreme Court opinion states, “(W)e begin with the English and colonial precedents”, and then cites a decision of the English House of Commons from 1553. To be sure, this involves an interpretation by the Commons rather than by a Court, but the principle is the same and I imagine lawyers could find similar citations to British court cases in American con law cases. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 27, 2009, 7:42pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/18 "2009-02-27T19:42:06Z")
technically, the _Corpus_ isn’t a precedent, in the sense of a report of a decision of a court. Rather, it’s a comprehensive re-statement of the law, including academic commentary, imperial statutes, and some case decisions. As for the translation issue, it is the source of most modern European civil law, and has been extensively annotated and commented upon, and worked into the law, so I wouldn’t think that the translation would pose many issues. For more, see this thread from last year: [Diff between common and civil law](http://boards.straightdope.com/sdmb/showthread.php?t=453352). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 27, 2009, 7:53pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/19 "2009-02-27T19:53:28Z")
And, from a Canadian perspective, the earliest cases I can remember citing in a legal opinion are the _Case of Proclamations_ 1610, 12 Co. Rep. 74, and a decision from Star Chamber about 1620. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [March 10, 2009, 3:37pm UTC](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639/20 "2009-03-10T15:37:38Z")
Please tell me everyone in common law jurisictions at least knows about the _Earl of Oxfords Case_. You know… the one about the status of equity and common law, and that equity will always prevail where there is a dispute. [Next page](https://boards.straightdope.com/t/how-far-back-can-a-us-attorney-go-in-making-an-argument-based-on-case-law-precedent/487639.md?page=2)