Stare Decisis, Doctrine of Precedent, Res Judicata, Etc.

In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."[1] STARE DECISIS (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs) is a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.[2] Case law is the set of existing rulings which made new interpretations of law and, therefore, can be cited as precedents. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies, and regulatory law which are regulations established by executive branch agencies. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.[3][4] In some countries, such as the USA, the term is exclusively used for decisions from bodies discharging judicial functions, such as selected appellate courts and courts of first instance.

PRINCIPLE The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.[5] CASE LAW IN COMMON LAW SYSTEMS In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts.[6] For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but the Supreme Court of the United Kingdom is able deviate from its earlier decisions, although in practice it rarely does so. Generally speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot reach out on their own initiative (sua sponte) at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand.

Naz, Ronwald N. | 1

A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130. Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited nonbinding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute. Some bodies are given statutory powers to issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code. In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district, province, division or appellate department. Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted. Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish them on the facts. Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the reporter and the judges.

TYPE OF PRECEDENT VERTICALITY Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedents established by the appellate court for their jurisdiction, and all supreme court precedent. The Supreme Court of California's explanation of this principle is that [u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior

Naz, Ronwald N. | 2

court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. Appellate courts are only bound to obey supreme court decisions. The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical stare decisis. However, in federal systems the division between federal and local law may result in complex interactions. For example, state courts in the United States are not considered inferior to federal courts but rather constitute a parallel court system. While state courts must follow decisions of the United States Supreme Court on issues of federal law, federal courts must follow decisions of the courts of each state on issues of that state's law. If there is no decision on point from the highest court of a state, the federal courts must attempt to predict how the state courts would resolve the issue, by looking at decisions from state appellate courts at all levels. Decisions of the lower federal courts (i.e. the federal circuit courts and district courts) are not binding on any state courts, meaning that interpretations of certain federal statutes can and occasionally have diverged depending upon whether the forum is state or federal. In practice, however, judges in one system will almost always choose to follow relevant case law in the other system to prevent divergent results and to minimize forum shopping. HORIZONTALITY The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis. In the United States federal court system, the intermediate appellate courts are divided into "circuits". Each panel of judges on the court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit.[citation needed] Precedents of a United States court of appeals may be overruled only by the court en banc, that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court. When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The State of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York State Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on interpretations of law. BINDING PRECEDENT Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being binding precedent for that court).

Naz, Ronwald N. | 3

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems precedent is not binding but case law is taken into account by the courts. Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy. One law professor has described mandatory precedent as follows: Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.[8] In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent. Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the Supreme Court, and underneath are lower federal courts. The state court systems have hierarchy structures similar to that of the federal system. The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law. Although state courts are not part of the federal system, they are also bound by U.S. Supreme Court rulings on federal law. State courts are not generally bound by Federal District courts or Circuit courts, however.[9][10] A federal court interpreting state law is bound by prior decisions of the state supreme court.[11] Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, since the Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law. There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. 'A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side

Naz, Ronwald N. | 4

the avoidance of undue restriction on the proper development of the law (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'. SUPER STARE DECISIS Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power,[12] or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned. In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations.[13] Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision.[14] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind of super-stare decisis."[15] The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term "super stare decisis" now usually refers. The concept of super-stare decisis (or "super-precedent") was mentioned during the interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept. [16] ADVANTAGES AND DISADVANTAGES There are advantages and disadvantages of binding precedent. The advantages include: certainty, consistency, preciseness, and time-saving. The disadvantages include: rigidity, complexity, illogical reasoning (the differences between some cases may be very small and appear illogical), and slow to grow (some areas of the law are unclear or in need of reform).[citation needed] PERSUASIVE PRECEDENT Persuasive precedent (also persuasive authority) is precedent or other legal writing that is not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current case is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in the United States), statements made in dicta, treatises or academic law reviews, and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Naz, Ronwald N. | 5

LOWER COURTS A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning. HIGHER COURTS IN OTHER CIRCUITS A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority. HORIZONTAL COURTS Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district. STATEMENTS MADE IN OBITER DICTA Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts. The obiter dicta is usually, as its translation "other things said", but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision). For this reason, the obiter dicta may usually be taken into consideration. DISSENTING OPINIONS A case decided by a multi-judge panel could result in a split decision. While only the majority opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. A judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting judge's reasoning persuasive. In the jurisdiction of the original decision, however, a judge should only overturn the holding of a court lower or equivalent in the hierarchy. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand. TREATISES, RESTATEMENTS, LAW REVIEW ARTICLES Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argument COURTS IN OTHER COUNTRIES An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States. It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact that the European Union forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the "Court's decision to place weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and "reaffirming American independence."

Naz, Ronwald N. | 6

CONTRASTING ROLE OF CASE LAW IN COMMON LAW, CIVIL LAW, AND MIXED SYSTEMS The different roles of case law in civil and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. The necessary analysis (called ratio decidendi), then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases. Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana, do not precisely fit into the dual "common-civil" law system classifications. Such systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law. Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions. Because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone). Today academic writers are often cited in legal argument and decisions as persuasive authority; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in precedent. Thus common law systems are adopting one of the approaches long common in civil law jurisdictions. CRITICAL ANALYSIS OF PRECEDENT COURT FORMULATIONS The United States Court of Appeals for the Third Circuit has stated: A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.[17] The United States Court of Appeals for the Ninth Circuit has stated: Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[18]

Naz, Ronwald N. | 7

Justice McHugh of the High Court of Australia in relation to precedence remarked in Perre v Apand: [T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science ACADEMIC STUDY Precedents viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still. Scholars have recently attempted to apply network theory to precedents in order to establish which precedents are most important or authoritative, and how the court's interpretations and priorities have changed over time.[19] APPLICATION DEVELOPMENT Early English common law did not have or require the stare decisis doctrine for a range of legal and technological reasons: During the formative period of the common law, the royal courts constituted only one among many fora in which in the English could settle their disputes. The royal courts operated alongside and in competition with ecclesiastic, manorial, urban, mercantile, and local courts. Royal courts were not organised into a hierarchy, instead different royal courts (exchequer, common pleas, king's bench, and chancery) were in competition with each other. Substantial law on almost all matters was neither legislated nor codified, eliminating the need for courts to interpret legislation. Common law's main distinctive features and focus were not substantial law, which was customary law, but procedural. The practice of citing previous cases was not to find binding legal rules but as evidence of custom. Customary law was not a rational and consistent body of rules and does not require a system of binding precedents. Before the printing press, the state of the written records of cases rendered the stare decisis doctrine utterly impracticable. These features changed over time, opening the door to the doctrine of stare decisis: By the end of the eighteenth century, the common law courts had absorbed most of the business of their nonroyal competitors, although there was still internal competition among the different common law courts themselves. During the nineteenth century, legal reform movements in both England and the United States brought this to an end as well by merging the various common law courts into a unified system of courts with a formal hierarchical structure. This and the advent of reliable private case reporters made adherence to the doctrine of stare decisis practical and the practice soon evolved of holding judges to be bound by the decisions of courts of superior or equal status in their jurisdiction.[20]

Naz, Ronwald N. | 8

INTERPRETATION Main article: Statutory interpretation Judges in the U.K use three primary rules for interpreting the law. The normal aids that a judge has include access to all previous cases in which a precedent has been set, and a good English dictionary. Under the literal rule, the judge should do what the actual legislation states rather than trying to do what the judge thinks that it means. The judge should use the plain everyday ordinary meaning of the words, even if this produces an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis (1987) in which several judges found several different dictionary meanings of the word "supply". Another example might be Fisher v Bell, where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case, Parliament amended the statute concerned to end this discrepancy. The golden rule is used when use of the literal rule would obviously create an absurd result. The court must find genuine difficulties before it declines to use the literal rule.[verification needed] There are two ways in which the Golden Rule can be applied: the narrow method, and the broad method. Under the narrow method, when there are apparently two contradictory meanings to a word used in a legislative provision or it is ambiguous, the least absurd is to be used. For example, in Adler v George (1964), the defendant was found guilty under the Official Secrets Act of 1920. The court chose not to accept the wording literally. Under the broad method, the court may reinterpret the law at will when it is clear that there is only one way to read the statute. This occurred in Re Sigsworth (1935) where a man who murdered his mother was forbidden from inheriting her estate, despite a statute to the contrary. The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case (1584), it allows the court to enforce what the statute is intended to remedy rather than what the words actually say. For example, in Corkery v Carpenter (1950), a man was found guilty of being drunk in charge of a carriage, although in fact he only had a bicycle. In the United States, the courts have stated consistently that the text of the statute is read as it is written, using the ordinary meaning of the words of the statute. "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. ... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' " "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929). "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787–88 (Alaska 1996); PRACTICAL APPLICATION

Naz, Ronwald N. | 9

Although inferior courts are bound in theory by superior court precedent, in practice judges may sometimes attempt to evade precedents by distinguishing them on spurious grounds. The appeal of a decision that does not obey precedent might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the inferior court decision may remain in effect even though it does not obey the superior court decision, as the only way a decision can enter the appeal process is by application of one of the parties bound by it. JUDICIAL RESISTANCE Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent. That is, the issue being judged was already decided by a higher court.[28] Note that inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.[29] STRUCTURAL CONSIDERATIONS In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedents of intermediate state courts as well[citation needed]. Courts may choose to obey precedents of international jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides. ORIGINALISM Originalism — the doctrine that holds that the meaning of a written text must be applied — is in tension with stare decisis, but is not necessarily opposed irrevocably. As noted above, "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin Scalia argues in A Matter of Interpretation that America is a civil law nation, not a common law nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the Constitution. However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says. Some originalists may be even more extreme. In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond, qualifying his willingness to change precedent in this way: I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a

Naz, Ronwald N. | 10

case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case. Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right."[31] Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence: American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision. ... [T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law. ... Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations." ... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it. ... Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions. ... Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.

PROS AND CONS There is much discussion about the virtue or irrationality of using case law in the context of stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution. An argument often used against the system is that it is undemocratic as it allows judges, which may or may not be elected, to make law. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so.[33] Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed.

Naz, Ronwald N. | 11

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. See also the living tree doctrine. CRITICISM OF PRECEDENT In a controversial 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions: (1) cases where the foreign jurisdiction's law is the subject of the case, or (2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions. [34] CIVIL LAW SYSTEMS

Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to Stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedents established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedents by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature. The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases. By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves. In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.

Naz, Ronwald N. | 12

The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental civil law systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Regeringsrätten), have the right to set precedent which is in practice (however not formally) binding on all future application of the law. Courts of appeal, both general courts (hovrätter) and administrative courts (kammarrätter) may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts.

THE DOCTRINE OF STARE DECISIS What is the doctrine of precedent or of stare decisis? Professor Gall described it in the following terms: The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters". Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge's reputation may affect the degree of persuasiveness of the authority.1 In Learning the Law (9th ed. 1973), Glanville Williams describes the doctrine in practical terms: What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned. The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon. The same learned author2 who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.3 It follows from William's analysis that the addition of fact D to a future case means that conclusion X may or may not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future case from the precedent or conversely the precedent may be extended to apply to the future case. There is considerable literature about whether the doctrine of stare decisis is a good or bad one4 but, the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law

Naz, Ronwald N. | 13

and also by notions of justice and fairness. Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."5 Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.6

In Sweney v. The Department of Highways,7 Middleton J.A. for the Ontario Court of Appeal stated: But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge would take on a consideration of the matter, without any regard to previous decisions.8 That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice: The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.9 The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued: If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.10 STARE DECISIS AND THE HIERARCHY OF THE COURTS Keeping with the practical approach of this paper, we will now leave aside this debate and consider the practical problems of dealing with the doctrine as it exists for the practising lawyer. Let us then consider the example of a lawyer preparing legal argument for court. The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank of that court in the hierarchy of courts. This is necessary for two reasons: first, because a higher ranking court is not bound to follow the decision of a lower court and second, because some courts do not apply the rule of stare decisis with respect to their own prior decisions.

Naz, Ronwald N. | 14

While it might be thought that it would not be difficult to decide this question of ranking, there are in fact some problems because the hierarchy and the attitude of various courts have changed from time to time. For example, for Canada, appeals to the Privy Council in criminal matters were abolished in 193311 and it was only in 1949 that all Canadian appeals to the Privy Council were abolished.12 In Ontario, from 1895 to 1931 but not afterwards, there was a section of the Judicature Act which obliged a Judge of the High Court not "to disregard or depart from a prior known decision of any other judge of co-ordinate authority on any question of law or practice without his concurrence."13 Further, perhaps by reason of the abolition of appeals to the Privy Council or perhaps because of the example of the House of Lords which in 1966 announced that it would reverse itself in proper cases14 or perhaps because of the maturing of Canadian jurisprudence, the Supreme Court of Canada has relatively recently reassessed its own position on the effect of its own prior decisions. In light of these changes, the current position for Ontario jurisprudence appears to be as follows: The Supreme Court of Canada is not bound to follow its own prior decisions or the decisions of the Privy Council.15 As Professor Gordon Bale has noted: The Supreme Court can no longer be content to say that the case is governed by an earlier decision either of its own or of the Privy Council unless the decision provides the proper reconciliation of the competing interests which are involved.16 All Canadian courts are bound to follow a precedent of the Supreme Court of Canada17 and any pre1949 decision of the Privy Council which has not been overruled by the Supreme Court of Canada. A minority opinion of the Supreme Court of Canada is, however, not binding.18 The Ontario Court of Appeal is not bound to follow a decision of the appellate court of another province.19 The Ontario Court of Appeal will generally be bound by its own prior decisions unless the liberty of the subject is involved or unless the prior decision was given per incuriam, that is, inadvertently without consideration of an applicable authority or statutory provision.20 It should be noted by comparison that appellate courts in certain other provinces have allowed themselves greater freedom in overruling their own prior decisions.21 All Ontario provincial courts lower than the Court of Appeal are bound to follow a decision of the Ontario Court of Appeal.22 A Divisional Court decision as a decision of an intermediate court of appeal would bind lower courts. (It should be noted that the Divisional Court also sits as a court of first instance.) All Ontario provincial courts are not bound by the decisions of the appellate courts of other provinces or by decisions of the Federal Court of Appeal.23 A decision of a court of co-ordinate jurisdiction is not binding24 although where there is conflict it may be appropriate to refer the case to the Court of Appeal.25 It should be noted that in certain circumstances, the District Court may have co-ordinate jurisdiction with the High Court and not be obliged to follow the decision of the otherwise higher court.26 Similarly, it seems that with respect to procedural matters, the Master's Office and the District Court may be considered to be co-ordinate courts. While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is because of the concept of judicial comity which is the respect one court holds for the decisions of another. As a concept it is closely related to stare decisis. In the case of R. v. Nor. Elec. Co.,27 McRuer C.J.H.C. stated:

Naz, Ronwald N. | 15

I think Hogg J. stated the right common law principle to be applied in his judgment in Rex ex rel. McWilliam v. Morris, [1942] O.W.N. 447 at 448-9, where he said: "The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6th ed., p. 321: "The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in the absence of strong reason to the contrary...". I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular judge. LEGAL ARGUMENT WHEN THERE IS A PRECEDENT Thus noting the court ranking of the judge before whom the lawyer will be appearing and guided by the doctrine of stare decisis, the lawyer will then prepare his or her argument. Usually, the best position for the lawyer occurs when there is a precedent case supporting his or her client's case. The lawyer will then argue that the court is either bound, or that the court, if not actually bound, ought to be persuaded by the precedent case to find in the client's favour. In his or her research, the lawyer will therefore look for cases with results which support the client's position and the lawyer will prepare to argue that the ratio decidendi of those precedent cases covers the facts of the case at bar. However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to determine and articulate the authority of a case. Moreover, skill is necessary to analyze and organize the material facts of both the precedent case and the case at bar. That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavourable. How does the lawyer deal with these problems? To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer. The lawyer may not simply ignore the unfavourable case and hope that the other side does not discover the authority. This is unethical28 and with respect it may be submitted that it is also unethical and intellectually dishonest for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the judge wants to make. This is not to say that lawyers and judges must deal with every case that remotely touches on a subject but only that there should be an honest effort to play by the rules. The techniques that are available follow as a consequence of accepting and then manipulating the doctrine of stare decisis. The techniques structure and direct the lawyer's legal reasoning and argument. The following are generally recognized: The lawyer can argue that the precedent case does not stand for the legal proposition for which it has been cited. In other words, the lawyer articulates the ratio decidendi of the case differently. An example of this may be found in the treatment of the case of Rivtow Marine Ltd. v. Washington Iron Works.29 In The Attorney General for the Province of Ontario v. Fatehi,30 Estey J. without resolving the difficulties associated with this case observed: Nonetheless it must be acknowledged that Rivtow has been variously applied or rejected by the courts of this country, some of whom find in the majority judgment recognition of economic loss and some of whom have found the opposite.31 The lawyer can argue that while the precedent case does articulate the legal proposition for which it has been cited, nevertheless the proposition was obiter dicta (things said by the way). Subject to an exception

Naz, Ronwald N. | 16

for considered pronouncements of the law by appellate courts, comments by the judge which are not part of the ratio decidendi are obiter dicta and are theoretically not binding in a subsequent case.32 The exception is that where an appellate court expresses a considered opinion on a point of law then such ruling is binding on the lower courts notwithstanding that it was not absolutely necessary to rule on the point in order to dispose of the appeal.33 It should be noted that if a judge rests his decision on two different grounds neither can be characterized as obiter dictum.34 The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case has been effectively overruled by a decision of a high court or by the introduction of a new statute. Examples of this kind of legal argument will obviously occur after significant decisions of the Supreme Court of Canada. For instance that Court's decision in Kamloops v. Nielsen35 did away with the distinction between non-feasance and misfeasance in negligence actions against municipalities and many old cases which turned on that distinction can no longer be relied upon. The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of "distinguishing": restrictive and non-restrictive and states: Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial. An example of restrictive distinguishing may be noted in the House of Lords decision in Peabody Fund v. Sir Lindsay Parkinson Ltd.,36 where the Court restricted the application of Anns v. Merton London Borough.37 The Anns case is cited as authority for the proposition that a municipality may be liable in negligence where it fails to properly inspect building plans. In the Peabody Fund case, by defining the duty of the municipality as being owed to owners and occupiers threatened with the possibility of injury to safety or health, the House of Lords specified and made less general, the scope of the municipality's responsibility as it had been defined in the Anns case. In the result, the Court did not allow a claim by the developer of a housing project who suffered damages when the municipality's drainage inspector failed to point out that the drainage system was not being installed in accordance with the approved design.38 Thus, in Peabody Fund the element of restrictive distinguishing is the introduction of the requirement of the possibility of injury to safety or health. An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision in Town of the Pas v. Porky Packers Ltd.39 In this case, the Court noted that the authority of Hedley Byrne Co. Ltd. v. Heller40 required the plaintiff in a negligent misrepresentation claim to show that he relied on the skill and judgment of the party from whom he had received incorrect information. In the Porky Packers case the plaintiff had received incorrect zoning advice from municipal officials but the plaintiff's representative was a former municipal council member who had more expertise in planning matters than the officials. In these circumstances, there could be no reliance and the doctrine or authority of Hedley Byrne by its own criteria was not available. The plaintiff's claim was dismissed. The material fact of the plaintiff's lack of reliance provided the element for non-restrictive distinguishing of Hedley Byrne. Where the case being relied upon has a built in public policy factor, the lawyer who wishes to distinguish the case may argue that public policy has changed and while the legal principle of the precedent case is

Naz, Ronwald N. | 17

still good law, it is distinguishable because of the change of circumstances. The possibility of this type of argument was noted in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co.,41 an important case with respect to the principle that contracts in restraint of trade may be voidable on grounds of public policy. In his judgment in this case, Lord Watson noted: A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.42 The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, there is another precedent of equal weight which stands for the opposite proposition. The lawyer then goes on to argue that it is that other case which the court should follow. This type of argument is related to but in the end result different from the "per incuriam argument" because it does not necessarily challenge either decision as having been given per incuriam. The rule is rather that the court may decide which one of the conflicting decisions to follow. Interestingly and as will be seen in a somewhat ironical way, the availability of this rule in Ontario is itself an example of the rule. The legal argument follows. The 1876 Ontario appellate decision of Fisken et al. v. Meehan43 is authority for the proposition that where there are conflicting decisions of equal weight the court should follow the more recent decision. Lower courts followed the Fisken et al. v. Meehan rule in Bank of Montreal v. Bailey and Bailey,44 and in Chiwniak v. Chiwniak,45 although in Chiwniak Wilson J. described the duty imposed by the rule to be presumptuous.46 However, in Hamilton v. Hamilton47 Middleton J., sitting as a lower court judge, said that where there are conflicting decisions, the lower court judge may follow the decision which commends itself most to him. Unfortunately, Middelton J. does not cite the Fisken case and the Hamilton v. Hamilton decision may thus be said to have been given per incuriam. But, in 1958 the Court of Appeal decided Woolfrey v. Piche.48 In that case, LeBel J.A. stated: ...but I am now faced with two conflicting decisions in this Court on the same point, and in that unfortunate state of things I apprehend that I must choose between them as I have done. That is what was done in Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718, where three exceptions to the application of the rule in Velazquez [the stare decisis rule] were stated. One of these (the first incidentally) is that "the court is entitled and bound to decide which of two conflicting decisions of its own it will follow". [p. 729] There is authority also for the proposition that where two cases cannot be reconciled, the more recent and the more consistent with general principles ought to prevail. See Campbell v. Campbell (1880), 5 App. Cas. 787 at p. 798.49 [emphasis added] The Fisken decision is again not cited gut its principle that the later of two conflicting cases should be followed is acknowledged but qualified by the requirement that the later case be more consistent with general principles. Thus, to the extent that there is any inconsistency between Fisken v. Meehen with Woolfrey v. Piche, the Fisken case directs that Woolfrey be followed. If the Woolfrey rule is used to resolve any conflict in authority between the cases, it must come down on its own side or it would not be an authority. If there is no inconsistency between the cases because of the qualification or explanation noted by LeBel J.A. then again the Woolfrey rule will be followed. LEGAL ARGUMENT WHEN THERE IS NO BINDING PRECEDENT The above seven types of legal argument are the principle techniques used to get around an apparently binding precedent and we can turn next to the problem of not being able to find a precedent case.

Naz, Ronwald N. | 18

Because there is considerable room for imagination and creativity in responding to this problem, it is more difficult to identify the main techniques. Nevertheless, some typical responses may be identified. Below we will consider three classical types of legal reasoning used in these circumstances. Again the doctrine of stare decisis, this time in spirit, may be noted. Where a lawyer cannot find a binding precedent, he or she may rely on a non-binding precedent from another jurisdiction. While not obliged to do so, the court may be impressed with or be persuaded by the reasoning and be prepared to adopt the rule established by the foreign case. However, care must be taken in employing this technique because it often necessitates reviewing the foreign law to determine whether there may be underlying differences in principles which qualify or which may diminish the persuasiveness of the foreign case. For example, decisions on the American Bill of Rights will obviously be important and helpful in interpreting our own Charter of Rights and Freedoms. However, it must not be lost sight of that there is no provision in the American Constitution comparable to the provision in our Charter that the rights set out "are guaranteed subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".50 Where a lawyer cannot find a binding precedent, he or she may form a legal argument from first principles. This approach identifies legal principles from decided cases and argues that while the factual circumstances of the cases may appear different, analytically they are the same. This kind of legal argument is often used with respect to determining the measure of damages. For example, without any reference to its particular facts, Wertheim v. Chicoutimi Pulp Co.51 is often cited as authority for the legal principle that where there is a breach of contract then as far as money can do so, the injured party is to be placed in as good a position as if the contract had been performed. The general principle is then applied to the particular facts of the immediate case. This type of approach may be noted also with respect to the issue of liability; for example, Hedley Byrne & Co. Ltd. v. Heller, supra, has frequently been cited as applying to fact situations which do not remotely resemble the facts of that case. This kind of argument does not purport to extend or develop the law; rather, the sense of it is just the opposite. The underlying premise is that the judge will be applying and will not be departing from decided law. The spirit of stare decisis may be noted here. Where a lawyer cannot find a precedent he or she can go beyond first principles and instead develop an argument that the decided cases have evolved to a general principle which covers the immediate case. This is a very sophisticated and creative type of argument. It is the kind of argument in which common law lawyers and judges take particular pride. It is this type of argument that can be identified in the majority judgment of Lord Atkin in McAlister (or Donoghue) v. Stevenson.52 In that case, there were two strong dissenting judgments of Lord Buckmaster and Lord Tomlin and their legal argument was that the plaintiff's claim did not come within the reach of the established authorities but represented a new type of claim. Lord Atkin's response was that while the decided cases might each examine particular types of liability, there must be a common rationale. His Lordship stated: At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, or which the particular cases found in the books are but instances.53 His Lordship then went on to complete his famous speech which is the foundation of the modern law of negligence. In his approach, we can again note the spirit of stare decisis. Lord Atkin did not ignore the precedents. Instead he found within them an underlying principle which he then applied. In a sense, Lord Atkin looked backward before he moved the law forward. Further, his argument was not based on any assertion that the principle he was articulating was the next logical step in the law. Indeed, an appeal to

Naz, Ronwald N. | 19

pure logic is difficult because established precedents may prevent the law from developing as a matter of logical progression. Lord Halsbury in Quinn v. Leathen54 stated: A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to logically follow from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.55 Thus, McAlister (or Donoghue) v. Stevenson does not offend the letter or spirit of the doctrine of stare decisis and provides a classic example of legal reasoning and legal argument in circumstances where there was no near precedent for the case. CONCLUSION This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, it must be conceded that stare decisis is only a part of this topic. There is much more. There are substantive rules for the interpretation of statutes and there are special rules and considerations when the statute is a tax act or a criminal code or a constitutional document. There are special and often difficult rules for the interpretation of contracts and testamentary instruments. There are unique considerations when principles of the law of equity are involved and problems caused by the evidentiary rules of onus of proof or of rebuttable and irrebuttable presumptions. yet, while the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare decisis continues to play the pivotal role.

RES JUDICATA Fundamental legal doctrine that, once a lawsuit is decided, the litigant parties are barred from raising the same issue again in the courts (unless material new evidence has become available). They are also barred from raising another issue arising from the same claim or transaction (or a series of claims or transactions) that could have been but was not raised in the decided suit. It is based on the principle that court cases cannot be allowed to go on for ever and must come to an end. Latin for, a thing adjudicated. The doctrine of res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his right. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." A final judgment on the merits bars further claims by the same parties based on the same cause of action. Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defense to defeat the enforcement of an earlier judgment. It also precludes relitigation of any issue, regardless of whether the second action is on the same claim as the first one, if that particular issue actually was contested and decided in the first action. (Friedenthal § 14.1) Former adjudication is an analogue of the criminal law concept of double jeopardy.

TERMINOLOGY

Naz, Ronwald N. | 20

RES JUDICATA = A general term referring to all of the ways in which one judgment will have a binding effect on another. CLAIM PRECLUSION (TRUE RES JUDICATA) = A valid and final judgment on a claim precludes a second action on that claim or any part of it. Claim preclusion is divided into two areas, bar and merger. In res judicata the second or subsequent suit involves the same claim or cause of action. In collateral estoppel the second or subsequent suit involves a different claim or cause of action. In res judicata the first judgment is conclusive not only on all matters which actually were litigated, but on all matters which could have been litigated. In collateral estoppel the judgment is conclusive only in regard to issues that actually were litigated. A judgment in a prior suit between the same parties is final not only as to all matters that were in fact offered and received to sustain or defeat the claim but also as to all matters that might have been offered for that purpose. A party may not litigate a claim and then, upon an unsuccessful disposition, revive the same cause of action with a new theory.

FOUR FACTORS ARE CONSIDERED IN DETERMINING THE VALIDITY OF A PLEA OF CLAIM PRECLUSION: 1) Was the claim decided in the prior suit the same claim being presented in the action in question? 2) Was there a final judgment on the merits? 3) Was the party against whom the plea was asserted a party or in privity with a party to the prior suit? 4) Was the party against whom the plea was asserted given a fair opportunity to be heard on the issue?

THE REQUIREMENT OF A FINAL JUDGMENT JUDGMENT "ON THE MERITS" The requirement that a judgment, to be res judicata, must be rendered "on the merits" guarantees to every plaintiff the right once to be heard on the substance of his claim. Ordinarily, the doctrine may be invoked only after a judgment has been rendered which reaches and determines "the real or substantial grounds of action or defense as distinguished from matters of practice, procedure, jurisdiction or form." One of the exceptions to this rule is found in FRCP 41(b). It provides that an involuntary dismissal for failure to prosecute, or for failure to comply with the Rules or any order of the court, shall operate as an "adjudication upon the merits," although the substantive issues of the case are never reached. This exception does not apply in the case of a dismissal for lack of jurisdiction or improper venue. The policy behind Rule 41(b) is to bar subsequent action only in situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court's reaching them.

Naz, Ronwald N. | 21

The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. An erroneous conclusion reached by the court in the first suit does not deprive the defendants in the second action of their right to rely upon the plea of res judicata. (Federated Dept. Stores v. Moitie, 452 U.S. 394 (1981) I.e., a judgment need not be right to preclude further litigation, it need only be final and on the merits.

IDENTITY OF PARTIES The general rule is that a judgment has no binding effect upon anyone who was not a party to the action. A stranger cannot take advantage of a judgment, nor can it be enforced against him. Consequently, the rules of res judicata and collateral estoppel do not apply unless the parties in the subsequent suit are identical with the parties in the first suit. For res judicata to apply, both suits must involve the same parties or their privies and also the same cause of action. If the subsequent suit involves different parties, those parties cannot be bound by the prior judgment. Collateral estoppel arises from a different cause of action and prevents parties or their privies from relitigating facts and issues in second suit that were fully litigated in the first suit. The plea of collateral estoppel can be asserted only against a party in the subsequent suit who was also a party or in privity with a party in the prior suit. A person in privity with another is a person so identified in interest with another that he represents the same legal right. Privity means one whose interest has been legally represented at the time. Collateral estoppel is not a defense against a litigant who was not a party to the action and judgment claimed to have created an estoppel.

ISSUE PRECLUSION "ACTUALLY LITIGATED & DETERMINED" To protect the integrity of the prior judgment by precluding the possibility of opposite results by two different juries on the same set of facts, the doctrine of issue preclusion allows the judgment in the prior action to operate as an estoppel as to those facts or questions actually litigated and determined in the prior action. In order to determine what facts were actually litigated in the prior case, the following test is applied: Where a judgment may have been based upon either or any of two or more distinct facts, a party desiring to plead the judgment as issue preclusion or a finding upon the particular fact involved in a subsequent suit must show that it went upon that fact, or else the question will be open to a new contention. The estoppel of a judgment is only presumptively conclusive, when it appears that the judgment could not have been rendered without deciding the particular matter brought in question. Collateral estoppel applies only to issues that have actually been determined in the first action and not to those which might have been determined but were not. When a case may have been decided on more than one ground but it is impossible to ascertain which ground or grounds were actually decided, none of the grounds are collateral estoppel in a subsequent action.

Naz, Ronwald N. | 22

In any lawsuit between two parties who have engaged in previous litigation, the first question will be whether this is the same claim. Only if one answers that question in the negative does the second question arise: are there then issues that the first case precludes from relitigation?

PREREQUISITES FOR COLLATERAL ESTOPPEL 1. The issue in the second case must be the same as the issue in the first. 2. The issue must have been actually litigated. 3. The issue must have been actually decided. 4. The issue must have been necessary to the court's judgment. (Friedenthal, sec. 14.11)

MUTUALITY OF PRECLUSION Under traditional issue preclusion principles, a party may be estopped from relitigating an issue that he had litigated in a prior suit and lost. The general rule was that estoppel must be mutual, i.e., the only parties who could invoke collateral estoppel were those who were involved in the suit in which the issue was initially decided. I.e., parties are bound, nonparties are not. (Wright, sec. 100A) NON-MUTUALITY - DEFENSIVE USE Bernhard v. Bank of America 19 Cal.2d 807, 122 P.2d 892 (1942) is the case thought to be the turning point that brought about the demise of mutuality. (Wright, sec.100A) In Bernhard, Mrs. Bernhard claimed that certain funds held by Cook, the executor of an estate, belonged to the estate. Cook claimed they were a gift to him from the decedent, which he need not include in the assets of the estate. Bernhard challenged Cook's claim in a probate proceeding during the course of the settlement of the estate, and the court held the funds were a gift to Cook. Bernhard then sued the bank that had been holding the funds and paid them to Cook, alleging again that the funds were assets of the estate that should have been paid to the estate rather than to Cook. The bank pleaded collateral estoppel, arguing that Bernhard had already adjudicated the right to the funds in the probate proceeding, had lost, and should be precluded from relitigating the issue against the bank. The court concluded that it was not improper to allow a new party to take advantage of findings in an earlier suit to estop a party who had litigated the issue in the prior action. Bernhard had been a party to the first action and had a full and fair opportunity to litigate the issue there. The court saw no reason to allow her to relitigate the same issue by simply switching defendants. Bernhard holds that collateral estoppel runs against anyone who has fully and fairly litigated an issue in an earlier action.

NON-MUTUALITY - OFFENSIVE USE The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, for other reasons the application of offensive estoppel would be unfair to a defendant, a trial judge

Naz, Ronwald N. | 23

should not allow the use of offensive collateral estoppel. (Parklane Hosiery Co v. Shore, 439 U.S. 322 (1979) A nonparty may assert collateral estoppel offensively against someone who was a defendant in a prior action. Under Parklane the court must evaluate on a case by case basis whether it is necessary to allow what appears to be duplicative litigation to ensure the reliability and fairness of a judgment. No precise rules can be formulated. The Parklane standard is applicable only to the federal courts. (Friedenthal, §14.14) "Offensive" use of issue preclusion involves a plaintiff who is seeking to prevent a defendant from relitigating issues that the defendant had previously litigated and lost against another plaintiff. In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971) the University of Illinois Foundation sued the defendant for infringing a patent but lost on the ground that its patent was invalid. It then brought a subsequent suit against another defendant for infringement of the same patent. The Supreme Court reversed its long standing rule allowing such relitigation and approved the use of nonmutual collateral estoppel against the Foundation on the issue of the validity of the patent. The Court noted the unfairness and waste of judicial resources that flows from allowing repeated litigation of the same issue as long as plaintiff is able to locate new defendants to sue. Note that preclusion is only appropriate if the precluded party had a full and fair opportunity to litigate the issue in the first action. Nonmutual collateral estoppel cannot be used against the federal government. Mendoza, 464 U.S. 154 (1984)

(United States v.

FULL FAITH & CREDIT DOCTRINE Full faith and credit requires that judicial proceedings shall have the same full faith and credit in every court within the U.S. as they have by law or usage in the courts of such state from which they are taken. It requires every state to give a judgment at least the res judicata effect which the judgment would be accorded in the state which rendered it. (Durfee v. Duke, 375 U.S. 106 (1963)

LAW OF THE CASE

This doctrine involves successive stages of the same lawsuit. However, the doctrine is fundamentally the same as res judicata, an issue which has been litigated and decided in one stage of a case should not be relitigated in a later stage. Law of the case, like issue preclusion, bars a litigant from repeating the same argument that was previously rejected. It refers to the principle that issues once decided in a case that recur in later stages of the same case are not to be redetermined. This doctrine limits relitigation in successive stages of a single suit. E.g., it will apply when an issue in the case is decided by the trial court and appealed. If the appellate court reverses and rules on the law to be applied, those findings will be binding on the trial court when the action is remanded for a new trial. (Friedenthal, sec. 14.1)

Naz, Ronwald N. | 24