RE: Re: the law IS what the law IS.

Robert F. Brodi writes:
> The system needs a way to allow precedence to be NOT legally
> binding when the facts are very unique to a case, and more
> binding when the facts are more generic, or a statute is just
> being more refined (such as by defining terms).

The whole purpose of a system of law based on precedent is to ensure consistency in decision making - that is, if I come to a court with the same facts as a case decided before, I will get the same result. Now, all cases differ at least a little bit on the facts - so complete consistency, like true justice, is a goal to be strived for rather than an actuality to be realized.

A system where certain cases are ignored for precedential purposes would completely undermine this fundamental assumption. Judges have a responsibility to fit their decisions within the precedential framework and consider the implications of their decisions on future decisions. Where a particular decision is peculiar to specific facts, judges can and often do distinguish the precedents by those facts from cases before them.

The concept that bad facts lead to bad law is a myth. Bad judges lead to bad law. Good judges can take a peculiar set of facts and give reasons for their judgment that encourage a lower court to make different decisions on different facts.

> Right now, judges rarely write opinions in such a manner,

... because they are trained not to (to the extent that they are trained at all to be judges).

> and the legal
> system does not handle non-precedential holdings very well
> (traditionally, they are just not published, but that doesn't
> work well today, where even unpublished cases are published).
> That needs to be corrected.

It doesn't handle them well because they are inconsistent with the fundamental concepts on which the common law is built! Why bother to give reasons for their decisions? They may as well just give a yes or a no and move on to the next case.

> If more judges were willing to forgo the precedential impact
> of their decisions, then hard cases wouldn't necessarily
> make bad law.

The precedent system is a self-correcting system - those decisions that are considered valuable get used often and those that are ill-considered, poorly written or otherwise less useful get overturned, overruled, distinguished or even ignored in favour of clearer or more compelling decisions. I think there is a fundamental constitutional problem (separation of powers) and no great benefit to letting judges pre-judge the likely usefulness of their decisions.

I believe that judges should be encouraged to consider the precedential impact of their decisions more not less!

-- 
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
| Address:  InQuirion Pty Ltd (MDS)
|           110 Victoria St
|           Carlton 3053
|           AUSTRALIA
| Tel:      +61 3 9925 4116
| Fax: 	+61 3 9925 4098
|	simul iustus et peccator