The common law really began when people began to look to those previous results for guidance. The key point is that the source of inspiration for answering today's cases lies in the resolution of yesterday's. England is the only country that has voluntarily adopted a common law system. So common law is a geographic thing as well: Britain and former colonies.
Anyway, in these jurisdictions, the law is derived from the cases. The opposite of the common law is the civil law: codified laws (this is what you see in most of the world). Starting, for example with Justinian. But then Napoleon. In the civil law, the answer is in the code, in the common law, it's in the cases.
In relying on a code, the civil law is more organized. It's hard to look up exactly who owns what animal, for example. The Restatements are sort of like a code, but they're not authoritative: the law is in the cases, regardless of how brilliant and persuasive Corbin (e.g.) is. Under the civil system, the code is supreme, scholarly interpretation comes second, and the courts come third.
Originally (when there wasn't a lot of precedent), the common law was not that predictable. By now, though, we've got precedent for pretty much any proposition. Our system is inductive: we go from the cases to a principle, and then try to apply that to today's case. The civil system is dedutive: start with the code, and try to reach a result that is rational with respect to the facts.
Civil law is more logical, and tends to mock common law as an ambiguous argument, basically. But the basic premise of common law is that we must follow stare decisis, we can have certainty and consistency under the law.
The reasoning in the common law is intensely pragmatic: the judges confine themselves to the facts in question, and consider social and economic policy. Under the civil code, the primary concern is the system, not the case at hand: the right answers are handed down by a panel, and may not be satisfactory in the context of a given case.
O. W. Holmes, "the life of the law is not logic, it is experience." This is directly contradictory to the civil law philosophy.
We also value the adversary method (as opposed to an inquisitorial system, with the judge playing a dominant role). This way the deciders of the case (judge and jury) have the information before them to make the most sensible decision. And thus, we'd be foolish to ignore the outcome of prior cases.
Two more realistic but unflattering reasons for following precedent:
There's no longer a Federal common law jurisdiction (federal courts follow state law, for the last 100 years, or so).
There are dicta, dissent, secondary resources. There is so much precedent, and it's so ambiguous and contradictory, that it can get in the way. It allows people to reach whatever conclusion (whether based on policy or not) and announce that it's based on precedent (basically pretending to be constrained by precedent). It enables laziness and hypocrisy. And online resources may exacerbate the problem.
Finally, precedent costs a lot: most cases are settled. Those that go to trial bankrupt everybody. It takes years to get a jury trial (5 years, in some jurisdictions).
So the Pierson court says that their policy is based on certainty. The narrower a court's holding is, the more applicable it is. It's helpful when the court actually says what their policy is: certainty should dominate over other policies (e.g., economics). Note also that the court acknowledges that Pierson was a jerk, but says that even under these circumstances, certainty should dominate. That is nicely applicable here: Hichens may be agressive, but not so negative as Pierson.
So how do we handle Pierson if we represent Young? You could maybe just hope nobody notices it. That's a bit of an ethical issue, of course, since lawyers are supposed to represent justice as a whole, not just their clients. That's not really the best choice, though. So we have a range of options:
~~~~~~~~~~~~|~~~~~~~~~~~|~~~~~
____ | |
\____ | |
\__| |
__ |
____/ | |
____/ | |
|___________|
Fish go in the tunnel, and get trapped in the container. Did they take
and carry away the property of another? They took fish, they carried them
away. Were they the property of another? That's the issue.
Why are these guys tried separately? Perhaps one's lawyer did not yet pay his lawyer. Defense lawyers like to get paid in advance: if you lose, you can forget about getting paid. If you win, maybe you can forget about it also.
The lower court says there was no larceny, because the fish were still wild.
Anyway, the state wins. What happens to Shaw? Double-jeopardy says he can't be tried twice for the same offense. The state can appeal its loss (for ideological reasons, or to set precedent for future cases), but the state can't sanction him, at least in some states. Note that this also will look bad for Shaw's partner: he did exactly what Shaw did, but he stands to go to jail.
Maybe this isn't very powerful precedent, because the defense lawyer doesn't really care about the case (because nothing can happen to his client), and so therefore the authority of the adversarial system is undermined.
The treatises cited by the defense are kind of lame, compared with actual precedent. This kind of fails to follow the spirit of the common law: we don't just follow cases, but we'll listen to anyone who has an opinion on the common law. There's no policy argument for the defense-- there's no reason *why* escape has to be impossible.
The defense concedes that bodily seizure is not required, but asserts that the confinement here (which allows fish to escape) was insufficient.
The court says that this confinement was sufficient, even though some fish could have escaped. So why is this "confinement?" The court cites some treatises as well (criminal ones, as opposed to the defendant's civil one). There's no reason given. They simply say the opposite of Pierson: they don't say they disagree with it, they just say that escape does not have to be impossible.
They offer an analogy that looks like a reason, but it's really just a restatement of the conclusion ("it is unnecessarily technical to require... so therefore"). The "therefore" doesn't actually follow.
It's nice to be a judge: you can just announce findings. As a lawyer, you have to provide a reason. Anyway, the bee case (bees come in and out of the hive, but are still owned by the beekeeper) is an analogy. So this is some sort of quasi-reason, and analogy reason.
The court also asserts that not many fish escape, although they also say "there is no evidence as to how many fish escape." So they start off nice and objective, but they end up rather conclusory. Now they say "few, if any fish escape." That's just made up. How do they know that escape is practically impossible, if they don't know how many fish escape?
Anyway, we're contradicting Pierson v. Post. It's a tour de force: just assert your answer. They distinguish Young v. Hichens because the fish there weren't in Hichens's net in the first place. They are misreading this case-- this isn't at all like Young's presentation of the facts-- there was just a small gap there.
Gosh, where was the defendant's lawyer when the court dismissed Young v. Hichens? Asleep at the switch, perhaps; there was an opportunity to make a point with it.
So if we want the State to win, how do we handle Pierson v. Post? How do we make it not say that physical occupation is the key? Well, there, we say that the holding was certainty vs. economics. That dichotomy does not translate out into this case: here certainty and economics are on the same side. We distinguish Pierson, in other words, by finding a factual difference (what will happen to the fishing industry vs. what will happen to fox hunts) and show how the two represent different policy issues.
You could also just claim that Pierson is irrelevant because it's a racial issue at its core, not a wild animal case at all.
What about Young? In that case, Hichens didn't have to directly interfere with Young's net, whereas here Shaw's folks did really have to interfere. Also, Young is basically an incompetent fisherman, who is asking the court to compensate for his failure to operate a net. We want fishermen like Hichens, who know how to shoot a net. The guys who own this pound net know what they're doing-- we might favor Hichens because he knows what he's doing, we don't want to favor Shaw (et al.) because they are just thieves.
Note that this makes the score 2-1 in favor of the second party to catch the wild animals. This is the first case in which the original catcher wins.
So how can the defense use precedent? Same as distinguishing: find factual differences that make things stronger, as opposed to weaker.
For example, this is a criminal case, whereas Pierson and Young were civil. The standard of proof is higher, because we are worried about a state that can incarcerate or kill us. We don't want to live in a society where an ambiguous act (was this, or was this not theft) can get a prison sentence. (So, is there mens rea, if we didn't know whether the fish belonged to someone else?) Certainty is really important here: it's a violation of the 14th amendment ("void for vagueness") to penalize someone for a crime which is imprecisely defined. In Pierson, certainty wasn't the dominant policy, and it won. Here, in a criminal setting, certainty is paramount, so a fortiori, the State can not prevail.
Likewise, the court's setting aside of precedent is much more problematic in a criminal setting (ex post facto concerns). So we need Pierson and Young to control here: people might research the law and determine that just putting fish in holey nets is not enough-- they should not be penalized, having exercised such care.
Also, note that the fisherman here is claiming public water over quite a period of time. Those fish belong to Ohio. That's different from our prior cases as well.
It's not clear how much impact lawyers have on case outcomes, actually: judges do their own thinking and may not be influenced.
Here the lawyer (for Keeble) is skillful. He wins (in other cases, the first- hunter lawyers lose). He doesn't let it be a wild-animal case (because of the losing problem), he takes it to a different area of the law.
The court says this is a case involving a trade/occupation, and interference with trade. Why does the good lawyer cast the case this way, instead of a wild animal case, which this obviously was? Partly because wild animal law is not working in his favor: if we call it a wild animal case, it's pretty clear that Keeble doesn't possess the ducks. So you can dispense with a lot of unfavorable precedent by controlling what issue is before the bench. The precedent is still there, but the court is forced to deal with the argument that got advanced.
So we've sort of gotten rid of some unfavorable precedent, and we're able to drag in some precedent that we like better. This way we can prevail on the grounds of common-law analysis. All this just by calling it by a different name.
Other advantages. One is that you change the policy focus: instead of focus on control of wild animals, we can focus on a policy arena that enables the court to focus through a policy lens that favors our client. So the advantages aren't just precedent-- it's policy as well. The terminology, also, will lend itself to a different interpretation.
Note that this case is "the duck case" (11 East 574) cited in Pierson v. Post. Post's lawyer considered this issue. Also in Young v. Hitchens, the court suggests that had the case been cast a different way, the suit might have prevailed? Back in Pierson, the lawyer says this is an "interference with hunting" case, and the court says no it is a wild animal case. They say that Keeble is a ratione soli case (i.e., decided by ownership of the soil), and Post was hunting on unowned land. But this is an evisceration of Keeble, in the sense that it's not an ownership case-- it is an interference with trade case. Post's lawyer should have made the point that Keeble is NOT a ratione soli case, and should be valid precedent. This is a great example of how malleable precedent is. It wouldn't have occurred to any of us to say that Keeble means the landowner beats the non-owner, but that's what the Pierson court says.
Note that the court even cites a hypothetical (the imaginary competitive school). They transform Hickeringill's actions into something malicious.
And why libel? Because if you say something bad about someone's trade or occupation, you can be sued. We have the policy of protecting business.
Interesting point from Dan: warning ducks in this case is not libel, because the ducks really will get shot!
If we say that interference with trade is actionable, we need to know what it means. Especially "malicious" interference with trade. And so if our goal was precision, we maybe have opened a new can of worms. How bad is bad enough to be malicious? So if certainty in the law is a basic policy (and it is: without certainty, we have to litigate everything), it might be a mistake to analyze Keeble on this basis.
You could also argue that it's not reasonable to go roving all over the place looking for precedent, when there's perfectly good precedent right there in front of you.
So in writing an answer, one wants to use precedent. At this point, there are only 8 cases, so you can use them all. So you identify the policy clash, and cite the precedent that you can in explaining your answer.
Note that there are a couple of new points: Megafish is the only US company technically able to compete with other major fleets (so that introduces a new policy: do we really want to drive the only viable US competitor out of business)? There's also the concern of depleting fishing stocks, so there's an environmental issue as well.
The house is taken over by the Army, and they pay a nominal lease. The plaintiff is a Lance Corporal, with only two names. The defendant is a Major, with four names. The facts are funny: was the thing "on top" or "inside" the crevice? This is actually sort of important, since stuff "on" property is treated differently from stuff "in" property.
For two months, the finder doesn't do anything, but then he goes home on leave and his wife says it might be valuable. So then he gives it to his CO, they take it to the police, advertise for the true owner. When now owner shows up, they give the brooch back to Peel. That's sort of odd: you give something to the police, when they can't find the owner, they give it to someone else.
The plaintiff's lawyer does a nice job of anticipating the defense's argument. Note, though, that neither lawyer does more than go through the precedent. Plaintiff: Armory v. Delamirie favors finders. Bridges v. Hawkesworth favors finders, and was written by the folks who decided Young. And we can ignore South Staffordshire because that's an employment case, not a property case. Defense: sort of the opposite.
Neither lawyer has a reason WHY we should follow one side rather than another.
The court then walks through the precedent, and points out how great Bridges sounds for the plaintiff. But then points out that the strong reading of Bridges by Lord Killowen is erroneous, and then goes on to do the same with Lord Killowen. This is the fourt time we've seen courts more or less wilfully disregard the meaning of previous cases. Precedent is malleable. Again.
So first, the court says we're a common law court and precedent will guide us. Then they say that "the authorities are in an unsatisfactory state." And then they make up their own deal. So is precedent a source of either certainty or precision?
If there is no precedent (which never occurs) or if the precedent is ambiguous (which always occurs), we're left with policy. But then they say "a discussion of the merits doesn't help." So we don't even have a policy reason here. The court is just flipping a coin: they sort of pretend to give a reason, by walking through all this precedent, but in the end, they just announce a winner.
We protect ownership to a high degree. We do this to encourage people to own. It's the basis of the whole economy (private property ownership is key to a free market economy). We'll still protect even a careless owner, who doesn't even know the brooch is missing. So we could say that we'll reward whoever best protects the true owner, which is Hannah in this case. If we don't do this, finders will never say they've found anything (because they're guaranteed to lose it), so this would reduce the chances of the true owner getting their property back.
On the other hand, Peel could say that he will best protect the true owner, because how would the true owner ever track down Hannah? At best, they'd remember where they lost their brooch.
So why ought Hannah to win? Protecting honesty is a good reason, protecting the true owner's ownership is maybe a good one (but you could work that one in either party's favor). Protecting other future true owners is a good idea (i.e., if we don't find for Hannah, then future finders will never fess up that they've found anything).
How about: we want to encourage not only honesty, but also initiative and effort? We want to encourage people to find things, in general, and reward that labor, because nobody is served if things just stay lost. We want people out there finding property!
Also, the "widows and orphans" policy: let's protect people who are toward the bottom end of the economic spectrum. No need to heap more wealth on the people at the top: the poor person will get more out of the brooch than the rich one. These sort of egalitarian policies are almost never mentioned by the court (because they're sort of highly politically slanted), but their effects may be felt, even if they are hidden.
OK, now let's look at Peel. Precision in the law favors the landowner. To favor the finder is just a matter of proving the finder's mental state (i.e., if he knew the thing was there, he wins). Proof of who owns the real property is clear and simple, so we should use that as the deciding factor, rather than allege that he didn't "know" about it, and cope with that ambiguity.
Also, we want to encourage capital investment: if you buy something, you should enjoy all the benefits of what is in it. We want to protect owners against losing unexpected windfalls. The counter- argument is that they're UNEXPECTED-- that's not what the buyer invested in. The counter-counter: when you buy something, you do partly invest in the unknown (like oil under the ground, for example, which would have won).
So we know that this brooch was left there before Peel bought the place. When you buy a house, you get the house, not the things people have in the house. So the prior owner would certainly (and validly) assert that he still owns the personal property there.
Also, there are different flavors of finding: the innocent honest kind, and the thief kind. If we say that the landowner loses here, we're encouraging the thiefy kind, because we're making the fencing of stolen property easier: in Armory v. Delamire if the apprentice chimney sweep stole the gem, we don't want it to be wasy for him to sell it (i.e., if the finder always wins title to the "found" property). So because we want to discourage theft, we should favor the owners of places where property is "found."
Another factor is the possibility that court will favor one side just on the basis of sympathy.
There were 12 bottles in there: he's carrying them, the bags are in his custody. He gets 45 days and $100 fine. He appeals.
Note that the trial judge declines to answer the jury's questions. The policy is that juries do not get to decide the law, only facts. All the same, this is not necessarily true in practice, because the laws are often so ambiguous and the jury instructions so useless. Nobody else lets juries make policy decisions like this: only the US. Here, there are no real questions of fact-- the facts are pretty obvious. They get told that if the porter lifted the thing off the ground, he possessed it.
On appeal, the court says it was important whether or not he knew what was in the luggage.
Once again, the court doesn't give any reasons-- they state a bunch of facts, but they don't explain the policy that dictates their decision.
The majority is construing statutes to reach rational results. There's a concurring opinion that basically says "never mind the technicalities of the statute, we need to do what is right." We should follow the reason behind the statute, not the particulars of the statute in general. In England this would be called "the golden rule of interpretation." We call it the "rule of reasonable interpretation."
The dissent says it would be better to read the statute and do what it says. We call this "the plain meaning rule" (#12 in Llewellyn's list on p. 35). The English call this "the rule of literal interpretation."
The rule of reason and the plain meaning rule are opposites, in the field of statutory interpretation. Plain meaning gets cited a lot more often, although sometimes it's in cases where the court disregards it anyway. Anyway, the dissent says we should follow this rule because everyone does it, and because precedent dictates that we should. Note that "libel" has two distinct meanings: in admiralty law it can mean the taking of a ship in consequence of its bad acts. The regular meaning, of course, is written slander.
Note that the law here doesn't say "whoever owns alcohol," it says "whoever possesses alcohol." Note also that the law doesn't say "knowingly."
Why shouldn't we follow the text? (Strict constructionism, as promoted by Scalia, vs. Holmes and the life of the law being experience not logic). Well, one reason is precedent: most prior cases (not all) follow the letter of the laws. Also, if a statute doesn't mean what it says, then we don't know what it means, and we like precision. We also like certainty, and deviating from precedent and statute undermines it. Also, there's this separation of powers issue: legislatures should be making the law, and courts shouldn't supplant legislated policies with their own.
As a general rule, courts at least pretend to follow the plain meaning of the law. For all the good reasons just cited.
Why not follow the plain meaning 100% of the time? Because the legal system relies on judges to determine the best result: it's a rational system, not a purely formal one. We shouldn't be casual about the rule of reason, but we shouldn't allow absurd decisions.
The legislature will even be thankful that the courts didn't make them look stupid by reaching a decision that didn't make policy sense (perhps). So the decision is basically this: is this case so important that it's worth deviating from the statute?
So here, we want to protect honest well-meaning people from this kind of prosecution. Also, there's no positive criminal policy to punishing here: there's no rehabilitation even possible here, we don't want to deter much or we won't have porters to carry our bags any more, plus there's no retribution to be had-- the crime had no moral content. Also, it's expensive to punish!
The dissent doesn't really dispute this, but says hey, the governor can commute the sentence. But we don't want our criminal law power to reside solely in the executive branch, plus that's a pretty random solution. All the same, requiring knowledge will make conviction much harder.
Is race lurking in the background of this case? (what group makes up the largest portion of porters? how about prisoners?) Also, there's the court's opinion of prohibition? (if this is a doomed policy anyway, how many more resources should we commit to propping it up?)