In the realm of legal advocacy, the use of precedents is
both an art and a science. Precedents, which are past judicial decisions used
as a guide for future cases, form the bedrock of common law systems. They provide
a framework within which judges and lawyers operate, ensuring consistency,
predictability, and fairness in the application of the law. This article delves
into the intricate art of using precedents in legal advocacy, exploring its
history, significance, and application through real-world examples and case
studies.
The importance of precedents cannot be overstated. According
to a study by the American Bar Association, nearly 90% of appellate court
decisions cite precedents, highlighting their critical role in judicial
reasoning. Furthermore, the principle of stare decisis, which means "to
stand by things decided," underscores the legal system's reliance on
precedents to maintain stability and coherence in the law.
However, the art of using precedents goes beyond merely
citing previous cases. It involves a nuanced understanding of legal principles,
the ability to analogize and distinguish cases, and the skill to persuasively
argue how a precedent should apply to a current case. This article aims to provide
a comprehensive guide to mastering the use of precedents in legal advocacy,
covering key strategies, best practices, and illustrative examples.
Understanding Precedents
Historical Context
The concept of precedents has deep historical roots, dating
back to the early English common law system. The development of common law
involved judges creating legal principles through their decisions, which
subsequent courts would follow. This practice ensured that similar cases were
treated similarly, promoting fairness and consistency.
The use of precedents became formalized with the
establishment of the doctrine of stare decisis. This doctrine mandates that
courts should follow the decisions of higher courts within the same
jurisdiction, providing a hierarchical structure to the application of
precedents.
Types of Precedents
Precedents can be broadly classified into two categories:
binding and persuasive.
1. Binding Precedents: These are decisions from higher courts
that lower courts must follow. For example, decisions of the Supreme Court are
binding on all lower courts in the same jurisdiction.
2. Persuasive Precedents: These are decisions from courts of
equal or lower status, or from courts in other jurisdictions, which are not
binding but can be considered influential. Lawyers often use persuasive
precedents to bolster their arguments when no binding precedent is available.
The Role of Precedents in Legal Advocacy
Ensuring Consistency and Predictability
One of the primary roles of precedents is to ensure
consistency and predictability in the law. By adhering to established
precedents, courts provide a stable legal environment where individuals and
businesses can make informed decisions based on existing legal principles.
For instance, in the landmark case of Marbury v. Madison
(1803), the U.S. Supreme Court established the principle of judicial review,
which allows courts to declare laws unconstitutional. This precedent has been
consistently followed, ensuring a predictable application of judicial review
across subsequent cases.
Enhancing Credibility and Persuasiveness
Using precedents effectively enhances the credibility and
persuasiveness of legal arguments. When lawyers cite precedents, they
demonstrate that their arguments are grounded in established legal principles,
making them more convincing to judges.
In the case of Brown v. Board of Education (1954), the U.S.
Supreme Court relied on precedents related to equal protection under the law to
rule that racial segregation in public schools was unconstitutional. The
strategic use of precedents in this case not only reinforced the Court's
decision but also set a powerful precedent for future civil rights cases.
Facilitating Legal Development
Precedents play a crucial role in the development of the
law. As societal values and norms evolve, courts use precedents to adapt legal
principles to changing circumstances. This dynamic aspect of precedents allows
the law to remain relevant and responsive to contemporary issues.
For example, in the case of Obergefell v. Hodges (2015), the
U.S. Supreme Court recognized same-sex marriage as a constitutional right. The
Court's decision built upon precedents related to individual liberties and
equal protection, reflecting the evolving understanding of marriage and
equality.
Strategies for Using Precedents in Legal Advocacy
Identifying Relevant Precedents
The first step in using precedents effectively is
identifying relevant cases that support your argument. This requires thorough
legal research and a deep understanding of the legal issues involved. Legal
databases such as Westlaw, LexisNexis, and Bloomberg Law provide comprehensive
access to case law and are invaluable tools for identifying relevant
precedents.
Analyzing Precedents
Once relevant precedents are identified, the next step is
analyzing them to understand their applicability to the current case. This
involves examining the facts, legal issues, and reasoning in the precedent case
and comparing them to the present case. Key factors to consider include:
1. Similarity of Facts: The closer the facts of the precedent
case are to the current case, the stronger the precedent.
2. Legal Issues: The precedent should address the same or
similar legal issues as the current case.
3. Judicial Reasoning: Understanding the reasoning behind the
precedent helps determine how it applies to the current case.
Analogizing and Distinguishing Precedents
A crucial skill in using precedents is the ability to
analogize and distinguish cases. Analogizing involves showing how the precedent
case is similar to the current case, thereby arguing that the same legal
principles should apply. Distinguishing involves highlighting differences
between the precedent case and the current case to argue that the precedent
should not apply.
For example, in the case of Roe v. Wade (1973), the U.S.
Supreme Court analogized previous cases related to privacy rights to establish
a woman's right to choose an abortion. Conversely, in the case of Plessy v.
Ferguson (1896), the Court distinguished previous cases related to equal
protection to justify racial segregation (a decision later overturned by Brown
v. Board of Education).
Crafting Persuasive Arguments
Using precedents effectively requires crafting persuasive
arguments that demonstrate how the precedent supports your position. This
involves clearly explaining the relevance of the precedent, how it applies to
the current case, and why the court should follow it. Persuasive arguments
should be logical, well-structured, and supported by strong legal reasoning.
Case Studies in Using Precedents
Case Study 1: Brown v. Board of Education (1954)
In Brown v. Board of Education, the U.S. Supreme Court faced
the issue of racial segregation in public schools. The plaintiffs argued that
segregation violated the Equal Protection Clause of the Fourteenth Amendment.
The Court relied on precedents related to equal protection and due process to
support its decision. By analogizing to cases like Sweatt v. Painter (1950) and
McLaurin v. Oklahoma State Regents (1950), the Court concluded that
"separate but equal" facilities were inherently unequal, leading to
the landmark decision that desegregated public schools.
Case Study 2: Roe v. Wade (1973)
In Roe v. Wade, the U.S. Supreme Court addressed the issue
of a woman's right to choose an abortion. The Court relied on precedents
related to privacy rights, such as Griswold v. Connecticut (1965) and Eisenstadt
v. Baird (1972), to establish that the right to privacy encompassed a woman's
decision to terminate a pregnancy. By analogizing these precedents to the issue
at hand, the Court recognized a constitutional right to abortion, setting a
significant precedent for reproductive rights.
Case Study 3: Obergefell v. Hodges (2015)
In Obergefell v. Hodges, the U.S. Supreme Court ruled that
same-sex marriage was a constitutional right. The Court relied on precedents
related to individual liberties and equal protection, such as Loving v.
Virginia (1967) and Lawrence v. Texas (2003), to support its decision. By
analogizing these precedents to the issue of marriage equality, the Court
concluded that denying same-sex couples the right to marry violated the Constitution,
establishing a landmark precedent for LGBTQ+ rights.
Case Study 4: Marbury v. Madison (1803)
In Marbury v. Madison, the U.S. Supreme Court established
the principle of judicial review, which allows courts to declare laws
unconstitutional. The Court relied on precedents related to the separation of
powers and the role of the judiciary to support its decision. By analogizing to
cases like Hylton v. United States (1796), the Court concluded that it had the
authority to review the constitutionality of legislative acts, setting a
foundational precedent for the American legal system.
Case Study 5: Citizens United v. Federal Election Commission (2010)
In Citizens United v. FEC, the U.S. Supreme Court addressed
the issue of corporate spending in elections. The Court relied on precedents
related to free speech, such as Buckley v. Valeo (1976) and First National Bank
of Boston v. Bellotti (1978), to support its decision. By analogizing these
precedents to the issue of corporate political spending, the Court concluded
that restrictions on corporate spending violated the First Amendment, setting a
controversial precedent for campaign finance law.
Conclusion
The art of using precedents in legal advocacy is a
fundamental aspect of the common law system. By ensuring consistency, enhancing
credibility, and facilitating legal development, precedents play a critical
role in judicial decision-making. The effective use of precedents requires a
deep understanding of legal principles, thorough research, and the ability to
craft persuasive arguments.
Through historical context, strategies for identifying and
analyzing precedents, and illustrative case studies, this article has provided
a comprehensive guide to mastering the use of precedents in legal advocacy. The
examples of Brown v. Board of Education, Roe v. Wade, Obergefell v. Hodges, Marbury
v. Madison, and Citizens United v. FEC demonstrate the profound impact of
precedents on the legal landscape.
As legal practitioners, mastering the art of using
precedents is essential for effective advocacy and the advancement of justice.
By understanding and skillfully applying precedents, lawyers can navigate complex
legal issues, shape the development of the law, and contribute to a fair and
predictable legal system. Ultimately, the art of using precedents is a
testament to the dynamic and evolving nature of the law, reflecting society's
values and ensuring justice for all.