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Columbia Human Rights Law Review - page 6 / 27





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Ch. 2



The second type of law, legislation, refers to laws passed by a legislature (by the U.S. Congress for federal law and state legislatures for state law). Legislation is the typical form in which laws are enacted. Finally, case law is the law that results when a court decides a case. The following section provides additional information on case law.

(b) Case Law: How to Use Legal Precedents

In deciding a case, the court is making law in two ways. First, the court determines what the law says about the dispute between the parties directly involved in the case. More broadly, this decision will also affect other people because the court’s resolution of the issues in the case forms precedent for other similar cases: the case becomes an example, and sets out a rule that other judges will follow in similar cases. When a court is deciding a case, it will look at how other courts decided similar issues in the past, and will follow those examples (those precedents). Courts rely on earlier, similar cases, to determine how a current case should be resolved. This process is called “stare decisis,” which means “already decided.” The greater the similarity between the cases, the stronger the precedent. Therefore, it is very important to find out whether issues in your case have already been decided by your court or other courts. These other cases can help you predict how a judge would rule in your case. You can also see what arguments were successful in other cases, so that you can use those arguments to succeed in your case. If you find arguments that hurt your case, you will need to rebut (argue against) them before the court.

If you find precedent cases that support your arguments, you will try to show the court that your case is sufficiently similar to the previous cases so that the conclusions in those cases should be followed in your case. For example, suppose that you have been placed in solitary confinement because you complained to a newspaper reporter about prison conditions. You should look for a precedent case that ruled that the prison cannot punish a prisoner, or put a prisoner in solitary confinement, for similar complaints. If you find such a case, your next step is to convince the court that you were placed in solitary confinement because of your complaints, and not for a different, valid reason. Then, you should use the rulings in the precedent cases to argue that your case should be decided in the same way.

If the precedent case works against you, you will have to convince the court that your case is different enough that the judge should not follow the precedent. This is called “distinguishing” a case.10 One way you can distinguish your case is to show that there were factual differences between your case and the earlier cases. A superficial (or insignificant) difference like the following will not help your case: “that case involved them, but my case involves me.” A useful distinction is one that casts doubt on whether the precedent should be applied in your case. For example, it would be useful to demonstrate that the facts are so different that the cases are not really the same: “in that case the defendant didn’t get a speedy trial because he fired his lawyers three times when they were ready to go to trial, but my trial has been delayed over and over through no fault of my own.”

It is important for you to note that not all precedent cases are equally persuasive. If the case was decided by a judge on the same court as your judge, or by an appellate court above your court, the precedent case is very strong. In effect, the earlier case defined the law in your particular jurisdiction. A lower court must follow the higher court’s precedent, or risk almost certain reversal by the higher court. The court that created the precedent is also unlikely to overrule itself without extremely good reasons. Precedents from the same court or from the appellate court above it are sometimes called “controlling precedents.”11 Additionally, a case decided in the United States Supreme Court is controlling precedent for all other courts. Courts rarely refuse to follow controlling precedents. However, in some instances, older controlling precedents may carry less weight when applied to a modern case. Furthermore, precedents can be overruled (and therefore become

  • 10.

    Ignoring the case is not a good idea because the other side will likely use it against you in its arguments.

  • 11.

    Certain state court systems are structured to require trial courts to consider the decisions of all appellate

courts within the state as controlling. For example, New York’s first level appellate courts are called the Appellate Division. The Appellate Division is divided into four Departments. An appellate decision from any Department is controlling for all trial courts within the state, unless the trial court’s own Appellate Division rules otherwise. Stewart v. Volkswagen of Am., Inc., 181 A.D.2d 4, 7, 584 N.Y.S.2d 886, 889 (2d Dept. 1992) (rev’d on other grounds by Stewart v. Volkswagen of Am., Inc., 81 N.Y.2d 203, 613 N.E.2d 518, 597 N.Y.S.2d 612 (N.Y. 1993)); Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918, 919–20 (2d Dept. 1984). But see People v. Salzarulo, 168 Misc. 2d 408, 411, 639 N.Y.S.2d 885, 887 (Sup. Ct. N.Y. County 1996) (holding that while other departments are “entitled to have their rulings accorded great respect and weight,” trial courts are only bound by the appellate court in their Judicial Department).

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