What happened in University of Oxford v. Rameshwari Photocopy Service is pretty rare.[1] I doubt if we will see a repeat of that one.
[1] https://en.wikipedia.org/wiki/University_of_Oxford_v._Ramesh...
This is tangential, but deference to precedent has become a huge problem in US and UK Commmon Law. So much case law has built up over the centuries that you can find a precedent to support almost any position! The "legal research" battle -- like the "discovery" battle -- just adds tremendous time, expense, and complexity, and rarely or indeed almost never benefits the litigants or the court.
As for precedent, yes, things accumulate over time, but by-and-large precedent = predictability. And that is completely missing from our system.
Common law is great. I'm much more uneasy about the alternative - i.e. legal systems where people become judges not long out of law school, with little real world experience, and proceed to make decisions that profoundly affect people's lives and livelihoods without feeling bound by precedent or being expected to explain their reasoning in any great amount of detail.
Also, word note, precedence means 'which things have priority over others?', whereas a precedent is 'something that has happened before'. A car at a green light has precedence, but the common law has precedents.
I've seen cases where Side A has 10 examples of case law that support their position, which they use in their motions and filings -- and Side B has 10 counterexamples of caselaw that support the opposite position, which they also use. The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail, so de facto isn't "bound by precedent" -- he rules in favor of the side he's inclined to support. (Posner was briefly derided for laying this bare.)
It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 1.5TB) just about any litigant can find case law to support almost any position. You end up with a system that's much like the Civil Law, but with the added burden of "research."
Sure, and there are people who can array thousands of pages of evidence that vaccines cause space reptilism and chronic nosehair. Doesn't mean it's good evidence.
The basic tradecraft of a lawyer is to figure out what the weight of the precedent on a given question is. Your argument seems to be that the very existence of any doubt, no matter how implausible or infrequent, means we might as well all give up on the rule of law and return to monkey. Which seems a rather nihilistic take for a system that works quite well, despite the difficult trade-offs inherent in it.
> The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail
That's what clerks are for. A judge has staff! And usually a solid intuition for what the law is, built on decades of experience practicing in the field. That's why we tend to appoint our judges from experienced practitioners, and not fresh law school grads.
This is admittedly a much worse issue at the lowest levels - magistrates who deal with petty theft and the like. Those people are often fairly incompetent, sadly, but I'm not aware of any legal system that's managed to systematically solve this issue.
> It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 200TB)
The vast majority of this is lower court decisions that won't be binding precedent almost anywhere.
But what if the citations are valid? What if they are, at least, credible? That's how it tends to be. Flippancy doesn't correct this.
> Your argument seems to be that the very existence of any doubt, no matter how implausible or infrequent, means we might as well all give up on the rule of law and return to monkey. Which seems a rather nihilistic take for a system that works quite well, despite the difficult trade-offs inherent in it.
Nobody said anything about "returning to monkey" -- the claim is that systems of binding precedent tend to collapse under their own weight, and eventually come to burden courts more than they help those courts. In the end, you're no better off than you are with Civil Law that isn't bound by precedent. This isn't exactly "monkey" -- it's just a different way of administrating the law, and I think time is showing that it is a superior way of administrating non-criminal law.
> The vast majority of this is lower court decisions that won't be binding precedent almost anywhere.
All the same, I think you'd be surprised how often lower court decisions are cited when they can help a case.
But here's the thing, even 9/11 truthers tend to make claims that, on surface level, might appear 'credible' to a layman. But only to someone who doesn't know very much about the underlying subjects and is easily overwhelmed by trivialities. Lawyers and judges do actually know a lot about the law. They know how to sift through those precedents. They know what argument is taken from a binding precedent and which is from obiter dicta, and what that means for the case at hand.
Take the Supreme Court, which gets trotted about as an example of extreme partisanship. In the 2024 term (the one just finished), a plurality of cases - 42.4% - were decided completely unanimously, 9-0. 66.7% of all cases had no more than one or two dissents. In only 16.7% of cases did the decision rest on a single vote. And in only 9.09% of cases did the judges align on 'ideological lines' - 90.91% did not follow any such split.
And that's of the cases that reach the Supreme Court, which tend to be those rare cases where there is some disagreement over the law. The vast, vast majority of court decisions are by lower courts, and usually unanimous, because most things to come up before courts have a settled answer in law and precedent. A court case is not an Internet discussion where you can strip mine Wikipedia for cites and refs for some epic dunk. That approach tends to crash very fast and very hard against reality in a court.
Most law is not contentious in the way laymen tend to imagine it to be. Experts are usually in agreement about the state of the law, because most law is reasonably settled, built upon stable and well-understood precedent.
Every now and then, something interesting and unique comes before the courts and then you might see a bigger variety of arguments as each side tries to control the narrative. The court will decide the outcome and, if it's a sufficiently high level court, that decision becomes the new precedent and you don't need to refer to the earlier ones again because the issue is no longer novel.
As someone who works in the UK system, I can point to two things I don't like about the US system. Firstly, the inability to recover costs in most cases. This leads to an abundance of litigation (because a party with a weak case has little to lose by trying anyway). It also produces unfair results (because the principle of justice should put the winner in the position they would have been if they hadn't been wronged, but it doesn't because they have to bear their litigation costs). Secondly, the politicisation (and in my view corruption) of the judicial system. We don't have "Conservative" or "Labour" judges here, and it's extremely weird to me that you can have "Republican" or "Democrat" judges given that a judge is supposed to just interpret the law in an unbiased way without regard to their political opinion. To me it seems that Supreme Court decisions are openly corrupt given how often the opinions are divided straight down party lines: statistically you should expect a random mix of Republican and Democrat judges adopting each side.
Yes. Then you figure out in what respects the current case resembles the precedent and which is more unique. There are not twenty cases where the facts and circumstances are identical to the present one because that’s not how reality works.
> Judge, who is a very busy man, simply cannot research the issue in exhaustive detail
Literally the lawyers’ jobs to do this.
I don’t think it’s a coïncidence that the oldest continuous legal systems in the world are precedent-based.
I was comparing the Indian system to the UK and US ones. I will still take the US system, warts and all, over the Indian or UK one.
I used to be a free speech absolutist in the past. Not anymore, though I still prefer more free speech to less. The UK and India are terrible at protecting free speech. And the laws dealing with defamation/libel are bonkers based on what Simon Singh had to go through.
The second issue I have is with handling of violent crime in general and that by juveniles in particular. The Nirbhaya case is a great/famous example (and the special treatment continues to this day)[1]. Four were hanged. The fifth died in police custody. The sixth rapist-murderer was 17y6m old and was sent to a juvenile home. You have something similar in the UK. In the US, all of them would have faced severe consequences.
[1] https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murde...
Sure, but we're talking about an adversarial system where the lawyers are necessarily at-odds with each other, so they research the issue each from their own perspective. Then the one side will present the judge (in motions, etc.) with "here are ten cases that support our position, we've researched them exhaustively," and the other side goes, "no, no, those are distinguishable because X, here are ten cases that support OUR position, we've researched them extensively," -- and the judge and his clerks, so busy that it takes them two months to respond to any motion or communication, often just go with their guts and justify their decision post hoc.
> I don’t think it’s a coïncidence that the oldest continuous legal systems in the world are precedent-based.
lol, dude, it's a mess right now. If society cared at all about justice, and especially about access to justice, the current system would undergo absolute root-and-branch overhaul.
The problem begins when law doesn't approximate justice anymore and currently it seems both separate from each other further and further. Without that law loses legitimacy. Some legal philosophy might see that differently, but it is the core of the issue.
But reforms are difficult because any lawyer will always be dependent on the status quo legal code. And not every reform would improve the situation.
I thought we were talking about the legal system, not the laws themselves. You can have a great legal system with terrible laws, or a terrible legal system with great laws. You can't blame the legal system for the fact that Parliament decides to pass a law which restricts free speech: it's not the role of the judiciary to decide what laws should be passed; rather, the role of a well functioning judiciary is to ensure that it applies and interprets the law (as it finds it) accurately and fairly regardless of the content of that law.
They research the other side’s citations, too.