E. The Concept of Case Law

16. The importance of case law in a common law jurisdiction

Legislation as a concept is relatively easily understood across legal systems. However, due to our Common Law heritage, case law has particular importance in the United States. Case law in this sense means the written opinions of appellate courts deciding a point of law. When judges have to make decisions on matters of law they must follow the decisions of their predecessors and superiors. This principle of stare decisis is crucial to maintain the element of predictability in juridical relations.

17. Case law analysis as the core of the "lawyering" process

Courts work to avoid contradicting themselves, and can never contradict a court which is higher in that jurisdiction's hierarchy than the court itself. The written decisions indicate which previous cases are being followed, and show why this case should follow the logic of those particular cases. The earlier cases are called "precedent". When an attorney is presenting his case to the appellate bench, he is basically arguing which cases and which logic should be used in the situation in dispute. FINDING THESE CASES AND DEVELOPING THIS LOGIC IS OFTEN THE BULK OF THE RESEARCH IN A PARTICULAR SITUATION.

18. Trial decisions

It is important to remember that jury decisions and judicial decisions in regard to facts are not part of this theory of case law. In many US jurisdictions trial court decisions are not published, although there are some exceptions. It is also important to remember that a decision is not a transcript of a trial.

19. Institutional role of case law

The judicial decisions can involve questions of interpretation based on the constitution and legislation, or they can be more direct law making, establishing norms in areas where there is no applicable legislation. There are broad areas in American law which are still relatively free of legislation, especially in areas of private law obligations (contracts and torts), and personal and real property. This law making power is also important in settling disputes in areas new to the law, such as surrogate parenting, before the legislature has had a chance to enact a statutory regime applicable to the situation.

20. The format of cases

In each published case there is an opinion and possibly concurring or dissenting opinions. The written reasons for the court's action is the opinion, and it is that which has precedental value. Concurring opinions are written by judges who agree with the result of the decision, but have different reasons for arriving at the result than those outlined in the majority opinion. Dissenting opinions are written by judges who voted against the majority opinion and who feel it is important to get their ideas on the record. Concurring and dissenting opinions can be persuasive when used by an attorney in conjunction with other precedent of similar logic.

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