A Bit More on Precedent

I began to discuss the nature of precedent in the Common Law in class today. I think that the best way to understand the concept is to recognize that judges in England and the U.S. [as well as other Common law jurisdictions like Australia and N.Z.] all decide cases according to precedent and the doctrinal rules which they derive from it [the "rule of the case"], much of it the same. We have published case decisions going back five hundred years in England and manuscript decisions going back at least another century. In the U.S. we have decisions going back to the Revolution, all of which have some potential authority. In the United States legal opinions do not lose their potential as precedent because of age. Thus, we still find courts in Kansas citing decisions several centuries old on occasion. From the practicing lawyer's perspective this is really too much of a good thing. How do you decide which cases to cite as precedent in making your argument? Further, as legal databases become more and more comprehensive and available decisions number in the millions, you know that for every decision you find that supports your client's argument, your opponent will find another case that goes against it. Thus, your job is to construct a doctrinal argument which is more persuasive than your opponents from the precedents. You can do this by convincing the judge that your precedent is more authoritative for some reason, such as being written by a famous judge or because it's often cited, or it makes better "sense," or it is more consistent with social policy or economic efficiency, etc. So it's not just a matter of finding cases that support your argument, but presenting those cases as more authoritative and persuasive. We'll talk more about this tmmw. In the meantime you might think about the meaning of the following economic terms: efficiency, "best avoider," "Pareto optimal" solutions. If you're not current on your basic economic theory, wiki the terms and see what you can find out.

I've ordered the coffee for tmmw.: we'll have Harar, a dark roast from Ethiopia, Guatamalan, a lighter roast, and Somalian decaf. [swiss method]. Along with some quite unhealthy donuts from Munchers.