I’ve been working on courses for people who want to become paralegals. I knew at the start that my direct experience with lawyers and the law was limited, but I didn’t realize how much so.
That’s true, so far as it goes. All these things are statutory law. So too are the regulations from certain bodies like the Food and Drug Administration. Those are administrative law.
What I hadn’t thought much about was another ocean of law — case law.
I did realize that statutes are not always that well written. Even when they are, two parties can reasonably come to two different conclusions about what the law means. To resolve the disagreement, they go to court, where the judge renders a decision.
If the case is appealed, the appellate court does not re-hear the case. Instead, the court looks how the law was applied and, very often, how other courts have interpreted the law.
Case law is a bedrock of the Anglo-Saxon system: the notion that courts should do what courts have done. When an appellate court issues a decision, that decision can become mandatory authority for other courts within the appellate court’s jurisdiction, and persuastive authority for others.
That latter means, “We don’t have to listen to the Seventh Circuit, but they seem to know what they’re talking about.”
So, for example, the idea of a constitutional right to an attorney emerged from case law (Gideon v. Wainwright,
All of this to remind myself that things are usually more complex than you think. You’ll see lots of huffing in Congress and in the media about “unelected, activist judges” who should just “interpret the law, not create it.”
(And generally, that’s a sign the speaker disagrees with a recent opinion.)
What that bromide skips over is the fact that in interpreting the law, the court ipso facto is handing down case law that other courts — and other plaintiffs, and other respondents — can and will consider in the light of their own situation.