Chapter 4　The Opinions of the Appel late Courts and Precedents

导读

The doctrine of stare decisis is founded on the primacy of the opinions of the appellate courts. These form the main and primary focus of study and analysis ofjurists,lawyers,and judges. The formation of legal education is based on these opinions. We study them just like we study the advocacy of star lawyers for the best form of strategy and techniques. Ditto for the most preeminent among；jurists to ascertain the most comprehensive,extensive,and creative exposition and criticism of legal doctrines.

Factors Likely to Figure in Distinguishing Decisions

Many reasons work to scale down the mythical authority ofjudicial law. Judicial law developed on the basis of the rule of precedent is inherently distinguished and may be weighed down in authority in subsequent cases. Factors involved in distinguishing a previous decision include the following:

The hierarchical status of the court deciding the case.

The reputation of the judges writing the opinion.

Is there a dissent or even a concurring opinion?

When was the case decided?

How does the precedent fit with the surrounding laws?

How has the decision been dealt with in later cases?

What authority does the precedent enjoy generally?

Conflicting precedents in different jurisdictions work to detract from the authority of individual decisions.

How does a decision fare in subsequent scholarly scrutiny（study and criticism）?

How does it fare in the hand of mass media?And what are the reactions of the general public?

Has it been affected or otherwise compromised by changes in social,political,or economic condition?

What are the reactions of the legislative branch and/or the executive branch?

Is it generally followed in fact?

Has it fallen into desuetude ?

Has the composition of the court changed?

Is it a memorandum decision,that is,a decision that sets forth no reason while affirming a decision of a lower court that stated the facts and its reasons in an opinion?

Opposing Treatments of Precedents

The doctrine of stare decisis requires that cases with the same fact‐situation be treated the same way. But in actual fact,there are simply no two cases exactly alike. No two cases are on all four.

Essentially,methods are made possible that involve certain skillful manipulation of the nature,scope and significance of the holding of the earlier case（s）and the relevance and materiality of the facts in the case（s）. Thus,the interchangeability between the holding of a case and its obiter dictum is very high and frequent.

To extend the principle of a prior decision to the present case is to profit from its wisdom and experience. Read the holding of the earlier decision more broadly；treat differences in the facts of the two cases as immaterial；regard as holding what might have been considered as dictum upon a narrow reading of the earlier case. In essence,this amounts to the formulation of broader legal principle to subsume under it both the facts of the earlier case and the case on hand.

If it seems undesirable to apply the rule of the earlier decision to the case at hand,just narrow the holding of an earlier case in order to distinguish it from the one before the court by treating differences in facts as material. What might have been considered as holding upon a broad reading of the earlier case will be regarded as dictum—as not necessarily for the disposition of the dispute before the court.

The role ofdistinguishing cases is essential to the development of new laws or new rules. Judges distinguish cases either by limiting or broadening the extent and wording of a rule which inevitably seems to have originally been expressed in too general or too narrow terms in the face of new fact‐situations. Even here the more conservative majority tends to use this technique to temper the daring,sometimes the extravagances of their more progressive colleagues.

To Distinguish or to Overrule

Even a binding authority is not absolute. When a decision would be patently wrong by following a precedent,the court may refuse to follow it.

The court may overrule a precedent when the precedent is so old and altered conditions or changes of circumstance have made it in appropriate for the case at hand. The court is also inclined to overrule a precedent when the composition of the court may have changed so that what was formerly the view of a vehement minority is now that of the majority. This would be particularly needed on a constitutional issue where legislation is not an available remedial device. Please refer to the factor operative in opposing treatment of previous decisions mentioned above.

Distinguished decisions inevitably amount to overruled decisions. Tradition demands that where possible the doctrine of precedent be honored by careful distinguishing rather than outright overruling of objectionable decisions. But in point of fact the decision that has been distinguished and expressly limited to its particular facts by a later opinion is often so whittled down as to be virtually overruled.

When following precedent is a better option,such as in matter of commercial case or property law the court may just go ahead in spite of the injustice in the particular case. When so doing the court takes the view that any change to rectify the injustice should be left to the legislature to make.

Multi‐legged Holding

This is another puzzle that adds to the complication of the doctrine of staredecisis. This concerns the weight to be given to a multi‐legged holding—a decision that is based upon several grounds rather than a single‐ground. For example,three distinct errors cited as reasons for reversal holdings by an appellate court. Could it be that either one without the other would have been sufficient for the reversal?Or neither one was necessary to the decision?Is there therefore no holding?And the entire opinion is a dictum?It is commonly accepted by prudent lawyer that precedents stay more firmly when they stand on only one leg and alternate grounds make a holding less reliable.

Please choose the best answer to the following questions:

1. The doctrine of stare decisis is founded on the primacy of the opinions of the appellate courts.

A. supramacy

B. prime

C. principle

D. printed matter 2. The force of a judicial decision could be weighed down by dissenting or even concurring opinions.

A. vitiated

B. wiped out

C. enhanced

D. invalidated

3. To extend the principle of a prior decision to the present case is to profit from its wisdom and experience.

A. to make money out of

B. to take advantage of

C. to distinguish from

D. to gain advantage of

4. If it seems undesirable to apply the rule of the earlier decision to the case at hand,a judge can simply narrow the holding of an earlier case in order to distinguish it.

A. pin it to the facts of

B. pay no attention to

C. sharpen

D. twist

5. When a decision would be patently wrong by following a precedent,the court may refuse to follow it.

A. partly

B. openly

C. intellectually

D. conspicuously

6. When following precedent is a better option,the court mayjust go ahead in spite of the injustice in the particular case.

A. proceed

B. go head on

C. go away

D. step aside

7. The court may overrule a precedent.

A. dwell upon

B. reject

C. invalidate

D. follow

8. The plaintiff _____ the burden of proof.

A. vests

B. bears

C. invokes

D. takes

9. The court _____ the defendant to cease the infringement,apologize publicly and pay the plaintiff＄20,000 in damages.

A. decreed

B. sentenced

C. found

D. ordered

10. After many months of extensive negotiations,teams oflawyers and bankers were finally about to _____ the deal,which involved the merger of two global players.

A. close

B. carry out

C. bring

D. sign YvFZZ6b6rgIxD3jJNdCJ3Hzm9qQXz/VpHEqpR1FyQ6XKmcsNCBtyXcGi6JpmK1Mc