The Common Law and the Principle of Precedent

PSCI 2481

Legal Systems of the World

There are four* legal systems that govern most of the world’s population:

1. Romano-Germanic (Civil Law)

2. Islamic (Muslim Religious Law)

3. Socialist Law

4. Common Law

The Common Law• Although settled by Germanic tribes and later

conquered by the Romans, England has a legal system different from the Romano-Germanic system common to most of Europe.

• Officially King Alfred the Great (871-899 AD) often is credited with establishing the system of common law.* Alfred’s book of laws (aka “Dooms”) was a blend of Mosaic Code, old Germanic customs and Christian principles.. The set of his laws, however, was not meant to be complete. Local lords still maintained their own court systems (“shire” courts) within which local laws and customs were enforced.

William the Conqueror’s reign (1066-1087AD) brought refinements to the common law by establishing a strong national government.

To consolidate his rule, William created a court system to administer the “King’s Law”, a law common to all England. These courts ultimately became known as the “Courts of Common Pleas”.

William commissioned a Doomsday Book (1085AD) in which the established customs on which the common law was to be based were laid out. These “established customs were identified during the first census of England (although historians believe these customs reflected rules congenial with the preferences of the King).

Why is this history of merry olde England important?

• England’s system of “common law” was brought to America by the original colonists.

• The Revolutionary War was in part a reaction to English common law tradition in which the King’s representatives occasionally found British interests to dominate colonial interests.

Precedent

• Perhaps the most distinguishing feature of Common Law is the use of precedent. Once a court faced a given set of facts and interpreted the law, its new decision became law and would be followed under similar circumstances in future cases.

• Custom becomes law when recognized by the courts. It was originally considered to be unwritten law. Today most of the common law is recorded and formalized by legislative enactment but the process of making law in novel situations remains a job for the courts.

Precedent

• Under this’ doctrine of judicial decision making, the court will not change the interpretation of the law once established unless the previous decision can be shown to be in error.

• The principle tasks of the court in the cases that follow any initial decision is (1) to determine if the previous decisions were the right ones and (2) if so, follow it. Most of the time (1) is simply assumed (or not even challenged) and the task of judging amounts to doing whatever the prior court did.

Precedent

Precedent is a “Work-Saving” Principle.

• Work out the answer once.• UNTIL someone shows you that you are wrong,

or that there is an even better solution to a problem, stick with your original answer every time the same problem arises.

Precedent

• In Bureaucracies, acting on precedents is the rule of the day. Except most bureaucracies call them “SOP’s”, i.e. “standard operating procedures”.

• The stated logic of most government bureaucrats is simple and often infuriating. If you ask “Why?”, they answer “Because”. Implied is the follow-up: “we always do it this way.”

Precedent

• Perhaps the one advantage of the use of precedent in a legal system is that the rationale is a little less obscure.

• When judges are asked “Why?”, they can answer “Because” just like any other bureaucrat. But they usually offer the further answer “Because US vs. X is a precedent and in that decision we explain why this case is decided as it is.”

Precedent

In our legal system, the following of precedent in “similar” cases is called the doctrine of “stare decisis”. (“Let the prior decision stand.”)

Questions:1. Does the use of precedent promote

justice? (Why?)2. Could the use of precedent cause

injustice? (How?)

Precedent (Karl Llewellyn – The Bramble Bush)

Using precedents is not as easy as it seems.

ORTHODOX I STRICT VIEW• No Judge can decide a case that is not

before him/her.• “Distinguish” - ignore unfavorable

precedents

LOOSE VIEW• Prior decision is all inclusive• “Capitalize” (incorporate) friendly

precedents

Precedent (Karl Llewellyn – The Bramble Bush)

DistinguishTime 1 Case A establishes a legal rule.Time 2 Case B with “similar” facts.

Case A is ignored and a new rule announced.

CapitalizeTime 1 Case A establishes a legal rule.Time 2 Case B with “dissimilar” facts.

Case A is embraced and it’s rule applied to this new situation.

Precedent (Karl Llewellyn – The Bramble Bush)

In any case precedents can be used by the attorneys strictly or loosely:

• “Your Honor, We believe State vs. Smith in which the Supreme Court decided that cars must stop for all cows crossing the road and are liable is they do not applies in this case where a chicken was brutally run down by the defendant.” (“capitalizing”)

• “Your Honor, State vs. Smith is not the controlling law here. That case applied to cows crossing roads. This case involves a bird. Surely the bird bears some responsibility for not flying across the road. A new legal principle is called for to decide this case.” (“distinguishing”)

So what’s a judge to do?

Precedents don’t always make the answer clear.

The Evolution Of Family Law in North Carolina, 1837-1874

State v. Pendergrass (1837) J. Gaston(Criminal - Teacher/Student)

Joyner v. Joyner (1862) C.J. Pearson(Civil - Divorce Hearing)

State v. Black (1864) C.J. Pearson(Criminal - Domestic Assault)

State v. Rhodes (1868) J. Reade(Criminal - Domestic Assault)

State v. Mabrey (1870) J. Reade(Criminal - Domestic Assault)

State v. Oliver (1874) J. Settle(Criminal - Domestic Assault)

The Use of Precedent

Modern Precedents

Where did Roe come from?

What is its impact as legal precedent?

Precedents for Roe v. Wade

Griswold v. Connecticut (1965)

• Invalidated a CT law prohibiting the use of contraceptives.

• “right to privacy” in the “penubras” of the rights guaranteed by the Bill of Rights

Eisenstadt v. Baird (1972)

• Overturned conviction for sale of contraceptives to an unmarried person.

• “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

City of Akron v. Akron Center for Reproductive Health (1983)

Justice Powell, for the Court:

“These cases come to us a decade after we held in Roe v. Wade, that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman’s right to decide whether to terminate her pregnancy. Legislative responses to the Court’s decision have required us on several occasions, and again today, to define the limits of a State’s authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.1 We respect it today, and reaffirm Roe v Wade.”

The Footnote

1 There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued -- with extensive briefing -- the following Term. The decision was joined by THE CHIEF JUSTICE and six other Justices. Since Roe was decided in January 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy.

The Aftermath of Roe v Wade

Degree of Participation in Abortion Decisions

Denied rights to the spouse of a married woman: • Planned Parenthood v Danforth (1976) • Bellotti v Baird (1979)

Required parental consent for single minor:• Planned Parenthood v Ashcroft (1983)• Hodgson v Minnesota (1990)• Ohio v Akron Center for Reproductive Health

(1990)

The Aftermath of Roe v Wade

State and Federal Limits of Funding for Abortion

• Beal v. Doe (1977)– No Federal requirement for states to perform

abortions with Medicaid funds.• Maher v. Roe (1977)

– States could restrict their own funding of abortions• Harris v McRae (1980)

– Federal Funds cannot be used for abortions (aka the Hyde Amendment)

• Webster v Reproductive Heath Services (1989)– Restrictions on use of public facilities for non-

therapeutic abortions

The Aftermath of Roe v Wade

Procedural Requirements• Poelker v. Doe(1977) • Colauti v. Franklin (1979) • Planned Parenthood v. Ashcroft (1983)• City of Akron v Akron Center for Reproductive

Health (1983)