LLewellyn

Llewellyn, //The Bramble Bush; on our law and its study// (1951) pp. 58-69   When one study a case, he should remember that the facts assumed or adopted by an appelate court have gone through straining and distortion. Therefore, one should not conclude to the facts as one would conclude from the “London Letter” of a fairly skilful correspondent. The first group concerns cases that were predestined to be litigated. They are in court because they are so exceptional that the normal ways of society have afforded no solid basis for deciding them, or even because the ordinary machinery of adjusting cases in society has no teeth that fasten on them. A great bulk of rules will prove on study to touch only these pathological cases. Such cases have little touch with rules for living life but are more rules for specialists. The second group concerns cases in which the rules hit closer the norms of living. The rules laid down are rule whose application people may foresee. Here, there is a rule to which men can and should often do reorient the action which they take apart from litigation. These cases are found upon the growing fringe of institutions suchas contract, market organization or insurance. These cases won’t reach the court until the social process of trial and error and of imitiation have worked out fairly definite results. And this decision made by the court will shape not only the future growth of the law, but the further action of the community   The first thing is to visualize the initial transaction between the parties and to understand the intent of their juridical act The second step consists in distinguishing if it is a transaction or an event. The former is when two or more parties get together to accomplish something while the latter rarely includes this intent.  While in logic, one will interpret the facts and apply the corresponding rules, in real life, rules and decision may dictate the interpretation of the facts. Therefore, if a court does not like the decision achieved by an earlier court, it may either reject the rule laid down by the first court (which is unlikely) or interpret the raw evidence before it differently, and not apply the rule, saying that the facts are different.  In addition, there are a divergence in attitude among the courts: Some courts are eager to find what the party situation really was while others are totally indifferent to it. And this divergence in attitude also exists when courts take distinction, by picking out picking out some feature (a point of fact or procedural set-up) that differentiate the cases, but which neither court has stressed, and by insisting that this differentiating feature is what account for the results. The divergence can also be found among judges: The dissenting opinion that proves that a fight has been put and settled. Sometimes, these dissenting opinions are the voices of a new day, to unfamiliar to have found as yet the acceptance that awaited it.   Precedent consists in an official doing over again under similar circumstance what has been done by him or his predecessor before. The basic idea with precedent is that once you have already solved a problem, it seems foolish to reopen it: the decision once made, the solution once worked out, into your operating technique without reexamination of what earlier went into reaching your solution.  At this point enters in the picture an ethical element, the argument that courts (and other officials) not only do, but also should continue what they have been doing. However, the ignorance, the folly, the idleness or the bias of the predecessor may chain a new strong judge. Also, the rule previously laid down may have been badly phrased and have failed to foresee the type of disputes, which later came to plague the court. Our society is changing, and law, if it is also to fit society, must also change.   The express ratio decidendi is prima facie the rule of the case, since it is the ground upon which the court chose to rest its decision. But a later court can reexamine the case and can invoke the canon that no judge has power to decide what is not before him, can, through examination of the facts, narrow the picture of what was actually before the court and can hold that the ruling made requires to be understood and thus restricted (“confining the case to its particular facts”).
 * <span style="font-family: "Times New Roman","serif";">Realize that facts are biased: **
 * <span style="font-family: "Times New Roman","serif";">The two types of cases: **
 * <span style="font-family: "Times New Roman","serif";">How to approach the second category and read the facts? **
 * <span style="font-family: "Times New Roman","serif";">Precedents: **
 * <span style="font-family: "Times New Roman","serif";">Doctrine of precedent: **