Ⅵ. Supplementary reading

Case Law:Origins, Nature and Authority

How Cases Make Law

The decisions of judges, or of other officials empowered by the constitution or laws of a political entity to hear and decide controversies, create case law. As the name“case law”suggests, a particular decision, or a collection of particular decisions, generate law—that is, rules of general application. How is it that a court's determination of the rights and obligations of the particular parties before it can apply to the disputes of persons who were not before the court? From the point of view of parties to a lawsuit or other contested controversy, what matters is the immediate outcome, the result the tribunal reaches in their case. Suppose that A has sued B for damages for asserted breach of contract, and that the court has reached a decision in their case. For A and B, the decision has immediate, and specific significance:B either will or will not have to pay a determined amount of damages to A. In the view of judges, lawyers, and law students, however, the decision takes on broader perspective. The decision becomes a possible source of general applicable case law. In other words, the decision in A v. B becomes authority for determining subsequent controversies. Just as the court in A v. B will have sought guidance from prior, similar, decisions, so later judges and advocates will look to A v. B for a rule by which to measure later parties' conduct.

The wider authority of prior decisions in individual cases may not seem self-evident at first, but consider the possible proposition. Suppose a society in which every disputed claim is heard and decided on its own individual merits, and with no regard whatever for consistency of the results from case to case. This society offers the means of settling disputes, but the society has no“case law. ”Each decision presents a result unto itself. Each decision is therefore unpredictable. Unpredictability in adjudication may provoke both instability in social relations, and the fear that little more than personal whim controls the judge's decision.

There is in fact, in most societies, a strong urge to make general law from particular decisions.

How are we to account for this widespread inclination to make general law from particular decisions? Karl N. Llewellyn, the leading spokesman for the group of legal 10 philosophers known as the American Legal Realists, offered the following explanation：

“Case law in some form and to some extent is found wherever there is law. A mere series of decisions of individual cases does not of course in itself constitute a system of law. But in any judicial system rules of law arise sooner or later out of such decisions of cases, as rules of action arise out of the solution of particular problems, whether or not such formulations are desired, intended or consciously recognized. These generalizations contained in, or built upon, past decisions, when taken as normative for future disputes, create a legal system of precedent. Precedent, however, is operative before it is recognized. Toward its operation drive all those phases of human make-up which build habit in the individual and institutions in the group:laziness as to the reworking of a problem once solved; the time and energy saved by routine as a curb on arbitrariness and as a prop of weakness, inexperience and instability; the social values of predictability; the power of whatever exists to produce expectations and the power of expectations to become normative. The force of precedent in the law is heightened by an additional factor:that curious, almost universal, sense of justice which urges that all men are properly to be treated alike in like circumstances. As the social system varies we meet infinite variations as to what men or treatments or circumstances are to be classed as‘like'; but the pressure to accept the views of the time and place remains. ”

Students will become aware, as their study of law proceeds, that adherence to precedent has its other side. A court that follows precedent mechanically or too strictly will at times perpetuate legal rules and concepts that have outlived their usefulness. The continuing problem in a legal system that recognizes past decisions as authoritative sources of law for future cases is how to maintain an acceptable accommodation of the competing values of stability in a law, served by adherence to precedent, and responsiveness to social change, which may call for the abandonment of an outworn legal doctrine.

The Common Law Doctrine ofPrecedent

Professor Llewellyn was undoubtedly right in his contention that case law can be found“in some form and to some extent”in every legal system. But case law is uniquely authoritative and influential in a“common law country, ”which the United States is by inheritance from England. The Anglo-American legal system, unlike the“civil law”system which prevails with variations in most of the other non-Commonwealth countries of the world, explicitly recognizes the doctrine of precedent, known also as the principle of stare decisis. It is the distinctive policy of a“common law”legal system that past judicial decisions are formally and“generally binding”for the disposition of factually similar present controversies. This basic principle, firmly established centuries ago in the royal courts of England, was naturalized as American by the“reception”of common law in the United States.

When, and for what future cases, will a judicial decision or groups of decisions operate as precedent? The term“precedent”is a crucially important term of art in the vocabulary of our law. Let us note, first, a kind of territorial limitation:a judicial decision is a precedent in the full sense of the word only within the same judicial system or“jurisdiction. ”Thus a decision of the Supreme Court of California is a precedent and so generally binding in future“like”cases in that court and in“lower”California courts, but it is not a full-fledged precedent for future cases arising in the courts of Ohio or Vermont or some other state. Even a decision of the Supreme Court of the United States is not a binding precedent in a state court, say the Court of Appeals of New York, unless the legal issue decided by the Supreme Court decision was a federal question, that is, one involving the interpretation or effect of a federal statute or regulation or of the Constitution of the United States.

Even within the same jurisdiction, a decision is precedent only for“like, ”that is, factually similar, future cases. To put the matter more precisely, a judicial decision is a precedent, and so generally binding, only in future cases involving the Fsame material facts. As the first-year law students will soon discover, this limitation is far easier to state in general terms than to apply in concrete situations. No two disputes will ever be identical in every factual particular. How is one to determine, or argue, that a factual difference between a past decided case and a case now presented for decision is, or is not, a difference in material facts? Case law processes require careful analysis, matching and distinguishing of the facts of cases. By the end of the first semester, the beginning law student will find that case matching and comparison has become a matter of his or her second nature.

Even when the jurisdiction is the same and the pending new case is found to possess the same material facts, some judicial decisions will have greater weight as precedent than others. Thus, for example, the weight or influence of a precedent is greatly affected by the place of the court that decided it in the judicial hierarchy of its jurisdiction, that is, by whether it was a“higher court”decision or a“lower court”decision. Three tiers of courts exist in the federal judicial structure and in the more populous states:（1） trial courts, （2）intermediate appellate courts, and（3）a highest appellate court or“court of last resort, ”called in most jurisdictions the Supreme Court. Less populous states are likely to have only two tiers in their judicial structures:trial courts and an appellate court of last resort. One should not assign the same force as precedent to the decision of a state intermediate appellate court as to a decision of that state's court of last resort, and should not expect a decision of a United States Court of Appeals to have the same precedent force as a decision of the Supreme Court of the United States. As to the decisions of the trial courts, particularly State trial courts, where most of law's dayto-day business is done, these are rarely published and, even when published, are not likely to have much force as precedent except in future cases in the same trial court. As a result, the overwhelming majority of the cases included in the law school casebooks are decisions of appellate courts.

“Res Judicata”and“Stare Decisis”；“Reversal”and“Overruling”

Every final decision of an appellate court has a dual impact or effect:（1）as an authoritative settlement of a particular controversy then before the court; and（2）as a precedent, or potential precedent, for future cases. A lawyer's Latin expression denominates each of these effects:stare decisis, as we have seen, for the impact of the decision as precedent; res judicata for its effect as a resolution of the immediate controversy. Do not confuse these Latin terms and the concepts they symbolize. The latter addresses a decision's impact in the individual case; the former, its impact on the legal norm of conduct.

The following example should illustrate the difference. Suppose that P（plaintiff） sued D（defendant）advertiser in State X, for using P's photograph without his permission in an advertisement for breakfast cereal. The trial court decides in D's favor, on the ground that in State X, there is no claim against the non consensual use of private citizens'private photographs for purposes of trade, nor have the courts there recognized a“right of privacy. ”The Supreme Court of X, the court of last resort in that state, affirms the judgment. This decision is a final and conclusive settlement of the controversy between P and D:The case is now res judicata, and the losing party, P, cannot bring this claim again.

Now, to make plain the difference between res judicata and stare decisis as legal terms of art, suppose further that the Supreme Court of X, two years later, and in another case involving the non consensual use of private citizens'private photographs for purposes of trade, is persuaded that its refusal to recognize a right of privacy in this context is not a sound legal doctrine for present-day conditions, and so“overrules”P v. D, thus finding against the advertiser in the new case. Although this overruling decision is a deviation from the norm of stare decisis, U.S. courts of last resort have never regarded precedents as absolutely binding—only as“generally”binding—and have reserved to themselves a largely undefined authority to overrule even clear precedents when considerations of public policy require a change in the case law.

What, however, of the particular claim of P v. D? Now that the Supreme Court of X has changed the law, and“overruled”the decision reached in P's case two years earlier, should not P be able to bring his suit again, and prevail in his claim? The answer is clear, and adverse to P. His particular claim has been finally and conclusively settled against him; the doctrine of res judicata bars him from ever suing on that claim again. As a result, the final decision of a court of last resort can be more conclusive and permanent in its aspect as a settlement of a particular case（res judicata）than it may be in its aspect as general law for the future（stare decisis）.

It is important here to underscore one other distinction in legal terminology:between“overruling”and“reversal. ”In the later privacy case, the Supreme Court of X“overruled”its decision in P v. D. The Supreme Court of X did not“reverse”P v. D. The two notions are distinct, and carry different consequences. They are not interchangeable. The highest court of the jurisdiction“overrules”its own precedent. The prior decision continues to bind the parties to it, but the overruled decision is no longer authoritative as to subsequent controversies. By contrast, a higher court“reverses”the decision of a lower court. When a higher court“reverses”a decision, it reviews the lower court's judgment, and concludes that the lower court has reached an erroneous result（on the facts or on the law）in that case. As a result, the lower court's judgment is set aside and is no longer effective as to the parties to that controversy.

Decisions from other jurisdictions

A judicial decision, as we have seen, is a“precedent”in the full sense only within the same jurisdiction. In their opinions, however, American appellate courts frequently—indeed, more often than not—cite and draw upon decisions from other jurisdictions. Thus, for example, the Supreme Court of Tennessee, in support of the result it has reached in a case, may quote from or cite decisions from the courts of last resort of Massachusetts, Oregon, Virginia and a half-dozen other states—even perhaps decisions from England and other“common law”jurisdictions. Such outstate decisions are not full-fledged precedents, but they are accorded the status and weight of persuasive authority, which means that they are not“binding”in any sense but may have influence, often very great influence, in cases where there is no local precedent or the local precedents are conflicting or unclear.

The case law process in American courts thus has a considerable comparative-law ingredient:A court of last resort in one state does not consider itself bound to follow another state's case law rules, but it will carefully consider the outstate decisions and, if it finds their reasoning persuasive, make use of them as sources of guidance and justification. This disposition to give persuasive weight to outstate case authority is not surprising. The“reception”of the common law in the United States means that all the case law decisions of each state reflect common law principle.

Because of the important influence of outstate decisions as persuasive authority in American law, law school casebooks, other than those on Constitutional Law and other federal law subjects, usually include cases drawn from many jurisdictions. The law students, as he or she reads cases from different jurisdictions, will find that American appellate courts exhibit a marked degree of comity, mutual respect, for each other's decisions. Some decisions will have greater influence than others on the thinking of judges in other states. The prestige of the court that rendered the decision, or the prestige of the particular judge（e. g. , Cardozo）who wrote the opinion of the court, may 14 also affect the persuasiveness of the decision to the courts of other jurisdictions.

However hospitable a court of last resort may be to persuasive authority from other jurisdictions, an outstate case is not as authoritative and should not be assigned the same force as a true local“precedent. ”The difference in degree of influence is much like the difference between the holding of a case and dictum in a judicial opinion, the“holding”being fully authoritative and generally binding and the“dictum”only, again, persuasive authority.

（Jane Ginsburg:Legal Methods）

Answer the following questions according to the passage you have just read.

1. How is case law created？

2. What does a particular decision mean to the parties to a lawsuit? To the lawyers, judges, and law students？

3. What creates a legal system of precedent according to Professor Llwellyn? Why and when？

4. What might happen if a court follows the precedents mechanically？

5. What is the problem remaining in the legal system recognizing past decisions as authoritative sources of law for future cases？

6. Explain these two Latin terms:“stare decisis”and“res judicata”.

7. What doctrine bars a person from ever suing on the same claim again? What is the significance of this doctrine？

8. Why does the case law process in American courts have a considerable comparativelaw ingredient？

9. How does a court of last resort in one state usually make use of outstate decisions？

10. Can you explain the difference between the binding precedents and persuasive precedents？