I. Precedent: From Formalism to Realism
A. Precedent & the Common Law Method
1. Edward H. Levi, “An Introduction to Legal Reasoning” (2)
¨ Legal rules are never clear.
¨ Basic pattern of legal reasoning is reasoning by example, a three step process described by the doctrine of precedent.
1. Similarity seen between cases
2. Rule of law inherent in the first case announced
3. Rule of law made applicable to the second case.
2. Benjamin N. Cardozo, “The Nature of the Judicial Process” (5)
¨ Constitution and Statutes override the will of judges, but if there are no Constitutional or Statutory guidelines than :
¨ 2 stages in judicial decisions (p9)
1. Extract the precedent
2. Apply it
¨ Stare Decisis: To stand by that which is decided. Idea that later judges are bound by the decisions of earlier judges
3. C. C. Langdell, Cases on Contracts (26)
¨ Law is a science-consists of certain principles or doctrines.
¨ A lawyers job is to master the principles and doctrines and apply them consistently to the “ever tangled skein of human affairs”
¨ He thinks that a compilation of rules/precedents would be a great service to everyone who learns and applies the law
4. CASES:
¨ Winterbottom v. Wright, 152 Eng.Rep. 402 (Ex.1842) (27)
¨ Not liable to injuries to parties other than the ones the defendant was contracted with
o Longmeid v. Holliday, 155 Eng. Rep. 752 (1851) (31)
§ As in Winterbottom, Defendant sold a lamp to Plaintiff, and his wife was injured when it exploded. He is not liable to the wife because he did not have a contract with her.
o Thomas v. Winchester, 6 N.Y. 397 (1852) (33)
§ Mrs. Thomas was prescribed dandelion by her physician, however, she was actually given a mislabeled bottle of a poision. The manufacturer was held liable even though there was no contract between him and the plaintiff.
§ Winchester Principle: Objects that are inherently dangerous and objects that aren’t inherently dangerous are in two separate categories for the purposes of liability. If the object is inherently dangerous, than the manufacturer has a special duty to ensure that it’s safe.
o Loop v. Litchfield, 42 N.Y. 351 (1870) (36)
§ Defective Flywheel was sold to a consumer who was fully aware of the defect. A neighbor borrows it w/o permission and is killed when it flies apart. The judge rules that this case differs from Thomas v. Winchester because an iron wheel is not an inherently dangerous instrument.
o Losee v. Clute, 51 N. Y. 404 (1873) (38)
§ A steam boiler exploded and damaged several of the buildings on the plaintiff’s property. Judge decided that the company was not responsible for the damage because they were only the builder and they were no liable for accidents or injuries which may occur after the execution of the work. Judge invokes Loop v. Litchfield to show that the principle in T
rom negligence to strict liability.
B. Why the Common Law Method?
1. Edward Burke, “Reflections on the Revolution in France (57)
¨ Idea of small steps/incrementalism
¨ Draw from collective wisdom/wisdom of the many: we need to draw from wisdoms of the past; one man can’t capture the full wisdom in his lifetime
2. Cass R. Sunstein, “Burkean Minimalism” (69)
¨ Minimalism: an approach to decision making which combines:
¨ Narrowness: “Narrow rulings do not venture far beyond the problem at hand and attempt to focus on the particulars of the dispute before the Court.”
¨ Shallowness: “speaks to the level of theoretical ambition.”
¨ Consequentialist reading of Burke –Draws from Condorcet Jury Theory
¨ We’ll get good consequences if we draw from wisdom of the past.
¨ Sunstein statement of theorem – pp 370-71 – (79-80 in binder)
“if each individual in a group is more than 50% likely to be right, the probability that the majority of the group will be right increases to 100% as the size of the group expands” – why b/c you aggregate private information, strip out the effect of idiosyncratic bias in processing common information”
