Precedent Flashcards
Natural Similarity
Checking whether facts of the present case has natural similarity with those of the precedent case
- but objects of the same natural kind can be dissimilar in the eyes of the law
- natural similarity does not entail legal similarity
The facts and the outcome
Arthur Goodhart - extract ratio from observing facts and the outcome
- but infinite propositions can be construed based on facts and outcome
Material facts and outcome
e.g. if HL put emphasis on a particular fact
- rule for precedent should be external to material facts
- judges might also have different reasons for the outcome
- the best possible reason for outcome may not have been in judge’s minds
(e.g. Lord Hoffman in Transco v Stockport - “enterprise theory” for Rylands v Fletcher)
A rule promulgated in the precedent case
treat preceding court like a legislature that promulgates rules for later courts to follow
- e.g. Rylands: “whoever uses land for a non-natural purpose is strictly liable for damages caused to neighbouring properties”
- but courts do not usually bounce rules in that form
- usually discussion about material facts of the case and reasons for/again a particular outcome
Should precedent be followed irrespective of merit? (pros)
Yes, otherwise precedent won’t mean anything
- efficiency
- other branches are less predictable and more flexible
- “In most matters it is more important that [it] be settled than it be right”
Should precedent be followed irrespective of merit? (cons)
Dworkin
- if previous court completely mistaken then it shouldn’t be followed
- but this doesn’t mean precedent is irrelevant
- all about integrity
Frederic
- “why would a legal system require its judges to do something other than make decisions according to their own best judgement?”
EXPERTISE
Judges can rely on the expertise of previous judges who are more experienced, competent, and knowledgeable
NO
- only explains vertical stare decisis
- Hershovitz - a later version of a court has more knowledge and better placed to decide
- scientists don’t follow and reach same conclusions as predecessors
- precedent has to be more than just expertise
CO-ORDINATION
If it is desirable for courts to decide cases in the same way then this can be done by imposing a duty on all courts to follow precedent of one court
NO
- suggests valuing consistency over how good the law is
- doesn’t explain horizontal stare decisis (SC can be inconsistent and still have co-ordination)
EFFICIENCY
Rely on previous case to safe time –> “free ride” on the efforts of previous judges (Macey)
NO
- it doesn’t fit with current practice (disagreement continues)
- courts spend a considerable time in their reasoning to decide a case
- precedent allows judges to rely but also demands judges distinguish cases
Cardozo J
“The labour of judges would be increased almost to breaking point if every past decision could be re-opened in every case
PROMOTING GENERAL UTILITY
Give citizens a clear warning about legal rules
- as long as rule is clear doesn’t matter what the rule is
- law is too unpredictable if no precedent
NO
- certainty is not always no.1 of law’s values
- if ROL is grossly unjust, certainty is not legitimate
- e.g. R v R - rape by spouse
- e.g. Plessy v Ferguson - just because southerners “planned their affairs” to certainty does not mean judges cannot interfere with racial caste systems
FAIRNESS BETWEEN LITIGANTS
More fair that if A recovered damages, B should if same circumstances
- doesn’t matter if rule is not good
- unfair if B doesn’t have a claim
- Hershovitz - fairness does not apply to litigants decades/centuries apart
- e.g. Rylands in 1868 - now in 2016 probably wouldn’t apply
- previous rules may also be bad (Lister v Helsey Hall, Various Claimants)
Hershocitz
precedent cannot be justified it is wrong
“What could justify a principle that requires courts to make the same mistakes over and over again?”
Frederic
genuinely persuaded
- e.g. you boil an egg for 6 minutes = perfect so do it again
- about learning
NOPE
- courts follow even if they don’t want to (e.g. Roe v Wade)
- source is force not soundness of reasoning
Dworkin
Precedent is about CONSISTENCY of principle over time and a COHERENT vision of justice and fairness within the law
- so if not just and fair then don’t uphold it
- explains overruling and precedent
- and chain novel
