(Posted Dec. 26, 1999)


     A frequent question asked by those wishing to learn more about the "law" is "why do we need case law?" This is indeed an important question and the purpose of this memo is to provide a short answer explaining the great importance of publishing and making available the decisions of the courts, "case law," or "decisional authority" (the term I like to use).

     All must admit the need for courts, which undoubtedly have their origins in unrecorded pre-history. Imagine what life must have been like in some ancient village in Greece several thousands of years ago. How would an elderly, frail farmer solve a problem he had with a younger, stronger farmer who stole his cattle?  Could the older farmer use his brute strength to re-capture his lost property from the thief? But what if the problem was not criminal but civil in nature? What if the old farmer sold a cow to a younger farmer who refused to pay? Naturally, problems of this kind were at first heard and resolved by some village chieftain. After all, society as a whole has an interest in resolving disputes among its members and administering justice. And perhaps one of the most notable kings who personally exercised this judicial function was Solomon.

     But as societies grew and became more populous, the king simply could not personally attend to resolution of these internal, social disputes as well as handle the affairs of state. As a result, a leader or king would delegate this important duty of deciding disputes between citizens to another. This individual, a judge, would, in a city-state like Athens or Rome, convene his court in a specific place where controversies either civil or criminal could be brought to him. In empires, the judges would travel to various cities for the purpose of holding court. Of course, the nature of the judges so appointed by a leader reflected the character of the society.

     World history reveals that most every society has developed some form of judiciary: Biblical Israel, ancient Greece, the empire of Rome, medieval Europe, and nations of the Renaissance all had developed judicial systems. Simply put, no organized society can fail to address the problem caused by disputes between citizens and institutions, and the solution has been the establishment of courts. Without such a system, problems between people would be solved only through trial by combat.

     Could we today banish courts from our nation? If we did, our society as we know it would vanish and quickly descend into chaos. If your neighbor stole something from you, what would you do without a court? Would you use physical force to reclaim your property? What if the thief was younger and stronger than you? What would you do if you were injured in an automobile accident? Would you, in an effort to recover your damages, use force to take away all of the property from the party who injured you? Could you do that if the tort-feasor was more powerful than you? Without judges and courts, the strong and powerful would govern and rule the defenseless weak. Without courts, crime and incivility would prevail, causing a great social decline. Without courts, we would return to the condition of pre-historical societies. Those who rail against the institution of the judiciary should pause and thoughtfully reflect upon the reason why this system exists and what our society would be like without courts and judges.

     Courts and judges exist not only to solve the problem of disputes between members of society, but also to dispense justice. Those accused of crimes should have their cases decided justly; those who are really guilty should be punished while the innocent should be freed. Those who have suffered civil wrongs ("torts") should have their cases decided fairly and impartially so that the truly injured may be restored and made whole. But the dispensing of justice as represented by "the blind lady of justice" is difficult. The scales of justice can be rigged merely by paying a secretive bribe to a corrupt judge. The scales of justice can be slanted if the judge has some personal animosity against a party in his court. The scales of justice can be tipped if the judge is a member of some party or faction and a litigant is a member of an opposing party. Injustice often occurs as the result of secretive, hidden events and forces, and it is exposed by revelation of those secrets. Injustice is prevented by making the operations of the courts widely known.

     Before the widespread use of writing, decisions in court cases were made orally. A trial in a Roman court 2100 years ago was orally conducted and an oral decision was rendered. But this often resulted in a form of injustice. A breach of contract case could be tried on one day with verdict rendered in favor of a particular party. An identical case tried the next day or week could, however, have an entirely different outcome. How could this problem of inconsistent justice be solved? The solution became the making of written records of cases (at least those of importance). While it would be difficult to determine today when this custom developed, it most likely happened in the late Middle Ages. With written records of the course and conduct of cases, it was harder to conceal injustice. With written records of cases, it became easier for those interested in improving the administration of justice to study those written records and develop better principles of justice and make them consistent. Finally, written records became historical memorials which could be studied and used by subsequent generations.

     A quantum leap forward in the administration of justice occurred with the invention of the printing press. Whereas before this invention the administration of justice by judges greatly depended upon oral teaching and training, printing allowed statutes and other legal books to be widely distributed for the purpose of educating judges and others involved in the judicial system about legal principles. As a consequence, notable works like Blackstone's Commentaries on the Laws of England became standards for the teaching of law, making legal principles more widely known and consistent. The problem with general texts, however, is their generality. Even though books of statutes and other legal texts were available, to learn about the application of the law to specific fact situations required a study of actual cases which could not be done if cases were not published and generally made available.

     While works like Blackstone's mention cases from the 1300s, those very old cases simply are not generally available. Some of the oldest published cases appear in Howell's State Trials, a serial collection of important cases the earliest of which were decided in the 1600s. There undoubtedly were earlier published cases, but they have not survived in sufficient numbers. But since the 1600s, the frequency and number of published appellate decisions of cases has steadily grown.

     When colonial courts here in America were well established, decisions of appellate courts were typically published by "reporters" for those courts. Colonial legislative bodies would often appropriate funds to publish those decisions and the duty of insuring such publication in books fell upon those court reporters. Sometimes those "official" reporters would publish court decisions privately under their own names and thus make them available to whoever wanted to buy them. This system of publishing appellate court decisions was in use when the Revolution occurred.

     After the Revolution, the new States continued publishing decisions of the appellate courts as done before the war. But in time, private publishing firms started to compete against these officially published reports of appellate decisions. About 1880, one such company, West Publishing Company, developed the "reporter system," which divided this nation up into regions. West then published all the State appellate court decisions from a specific region in a regional reporter. For example, its Southern Reporter ("So.") contained the appellate decisions of States in the southeastern part of this nation. West also published the Northeastern ("N.E."), Northwestern ("N.W."), Atlantic ("A."), Southwestern ("S.W.") and Pacific ("P.") Reporters. For a time, West's unofficial reports competed against official reports of appellate decisions. But then in the 1960s, many of the States detected that purchases of official reports were declining in the face of this competition from West. Today, many States have abandoned separately printing their own official reports of appellate decisions, leaving the field entirely to West.

     But this system of reporting decisions in cases involves more than just appellate decisions as today there are lots of "specialized" publications. For a number of years, American Federal Tax Reporter has published tax cases (of course with competition from CCH). Commerce Clearing House publishes all sorts of decisions from administrative agencies; if you want the decisions of the FCC, just look in CCH's applicable reporter. In about 1980, West started publishing its Bankruptcy Reporter which has grown tremendously in the years since then. There has been in the latter half of the 20th century a veritable explosion in the number and amount of new publications of the decisions of the courts as well as administrative agencies. But, the Net offers to expand the availability of this information greatly.

     But this extremely short history of courts and the publication of their decisions only provides the background for answering the original question of why we have case law. There are several reasons why "case law" is so important:

dot   To provide the meaning of constitutional and statutory language.

     The U.S. Constitution authorizes Congress to "regulate commerce with foreign nations, and among the several states, and with Indian tribes," a power commonly called its "interstate commerce" powers. This is the language as drafted by the original framers of the Constitution and which was approved by the ratifying States. As typical, such language is very general, leaving the contours of this power unknown. Exactly what was meant by these words? What precisely is this power and how far does it reach?

     When Congress started enacting laws pursuant to this power and enforcing them,  many challenged those laws as unconstitutional. Over a span of a hundred years, these parties fleshed out the breadth of this power and now the published appellate cases are readily available to everyone for reading. If you wish to understand what is within this power, there are cases providing that information. If you want to determine what activities are not within this power, there are also such cases; see United States v. Yellow Cab Co., 332 U.S. 218 (1947). Published cases thus define the meaning of words in a constitution.

     What about statutes? It would appear certain that virtually every state DUI law condemns and makes penal driving while intoxicated. Precisely what does intoxicated mean? What are the facts that constitute driving while drunk? Is merely sleeping drunk in a car the commission of this offense? Only by reading the published cases can one find the various fact circumstances which constitute this offense; see State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (Utah 1971)(asleep off road); Underwood v. State, 132 So. 606 (Ala. 1931)(car must be in motion); State v. Taft, 102 S.E.2d 152 (W.Va. 1958)(car moving not due to driver's actions); People v. Johnson, 356 N.E.2d 1373 (Ill.App. 1976)(driver asleep); and State v. Zavola, 136 Ariz. 356, 666 P.2d 456 (1982)(driver in parked truck unconscious).

     Because both constitutions and statutes are typically written in general terms, there will always be questions regarding their application to varying fact situations. Publication of the decisions of the courts informs everyone (whether they read the cases or not) what these general words and terms precisely mean and how a law is applied to specific circumstances.

dot   To provide certainty via the "stare decisis" principle.

     Most of the world abides by the general principle that a decision once made is not subject to change except for good reasons. When a young person decides to go to school, the school so chosen is a fairly permanent choice. When people decide to get married, that decision is very binding and changed not for slight causes. Businesses operate in the same manner. If a company decides to manufacture a certain product and commits the resources to doing so, abiding by the decision made is extremely important. Government agencies are the same way. Once NASA chose to move ahead with missions to Mars, it built and sent into space its probes; those failures will obviously not reverse decisions made to continue the program.

     Courts are the same way. When a decision is made to litigate a problem or issue in court, parties get prepared the best they can. Lots of time and work is expended in litigating problems in court and judges spend lots of time to resolve these controversies.  When cases are appealed, the appellate judges are presented with well researched briefs containing the cites to statutes, cases and when appropriate, relevant history. Decisions in appeals are not lightly made. A decision in a case on appeal explains the facts involved as well as the application of the relevant law to those facts. The result typically is an opinion of some 8 or 10 pages, which thus condenses hundreds of hours of labor by many parties.

     Should all of this effort be cast aside and forgotten? Should parties and courts constantly repeat the same work every time the same precise question arises? The courts have developed a rule known as "stare decisis," meaning that once something is decided in an appeal, it becomes binding precedence. Black's law dictionary defines "stare decisis" as the doctrine "that, when [a] court has once laid down a principle as applicable to a certain state of facts, it will adhere to that principle, and apply it in all future cases, where the facts are substantially the same."

     The principle of stare decisis is known to the legal community and should be understood by citizens. Once an issue has been resolved in whatever way by an appellate court, that decision binds and controls the decisions of lower courts on the same point of law. For example, once the Supreme Court through a series of cases defined what was within congressional interstate commerce powers and what was without, those decisions were binding on the lower federal courts. If a party had a problem already addressed and decided by an appellate court, he did not need to go to court for an answer to that problem. That party could rely upon what the Supreme Court declared in a prior case and govern his conduct accordingly. This is the purpose of the principle of stare decisis.

     Many are not aware of just how strong stare decisis is. Many of the legal principles in various fields of law which exist today were established hundreds of years ago. Much of the body of criminal law we have today has its origins within the common law; rules regarding contracts, torts, real property and many others were established long ago and still followed today because of the principle of stare decisis. But in order for this principle to work, it is necessary for the decisions of the courts to be published.

dot   Cases are a part of history.

     In about 1751, Roger Sherman litigated the question of whether gold and silver coin were money in the colonies. This case, Sherman v. Battle, is not available except through an old file in the Connecticut State Library in Hartford. We can know something about this case because Sherman wrote a book about it in 1752 titled A Caveat Against Injustice, or An Inquiry Into the Evil Consequences of a Fluctuating Medium of Exchange. Sherman ultimately was a delegate to the 1787 Philadelphia Constitutional Convention and he was the man who placed the specie provisions of Art. 1, 10, cl. 1 in the Constitution.

     Students of the money issue can read books like Sherman's and those of many other authors. They likewise can read statutes adopted by Congress and state legislatures. They can read history books and economics texts which explore this topic, but when all of this study is done, something is missing.

     Those who have studied the legal aspects of the money issue know precisely how important the various legal challenges have been to this issue. Cases like Craig v. Missouri, Knox v. Lee, Guillliard v. Greenman, and the trilogy of Norman, Nortz and Perry represent some of the major features of the legal landscape regarding this issue. One may read these cases decided before most of us lived and take a step back into time. Most of what we know today about historical events are recounted for us by current historians who attempt to tell us what happened in the past. But not so with published cases. One may read these cases mentioned above and learn what a judge actually wrote and decided in a case back in 1830. This is far different from reading what a present day historian summarizes or what was reported in the newspapers. Actual, first hand history sits upon the book shelves of the law libraries of this country, just waiting to be read and studied by those willing to do so.

     But not only will a student find history in published cases, he will also find some very profound statements and observations by judges. Here is just a sampling of some of the wisdom which can be found by reading cases:

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866):

"Those great and good men [who drafted the Constitution] foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law.  * * * The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."
Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648-49 (1927):
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom."
Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 654 (1928)(Justice Brandeis dissenting):
"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -to declare that the government may commit crimes in order to secure the conviction of a private criminal- would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."
West Virginia Board v. Education v. Barnette, 319 U.S. 624, 641-62, 63 S.Ct. 1178 (1943):
"We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Jordan v. DeGeorge, 341 U.S. 223, 241, 71 S.Ct. 703, 713 (1951)(in a footnote in the dissent):
"John Stuart Mill, referring to the morality of assassination of political usurpers, passed by examination of the subject of Tyrannicide, as follows:

'I shall content myself with saying that the subject has been at all times one of the open questions of morals; that the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not in the nature of assassination, but of civil war.'

 Mill, On Liberty and Considerations on Representative Government, p. 14, n. 1."

Beilan v. Board of Education, 357 U.S. 399, 414-15, 78 S.Ct. 1317 (1958) (Justice Douglas dissenting):
"There are areas where the government may not probe. Private citizens, private clubs, private groups may make such deductions and reach such conclusions as they may choose from the failure of a citizen to disclose his beliefs, his philosophy, his associates. But government has no business penalizing a citizen merely for his beliefs or associations. It is government action that we have here. It is government action that the Fourteenth and Fifth Amendments protect against."

" * * * the basic principle that government can concern itself only with the actions of men, not with their opinions or beliefs. As Thomas Jefferson said in 1779: ' * * * the opinions of men are not the object of civil government, nor under its jurisdiction; * * * it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' 2 Papers of Thomas Jefferson (Boyd. ed. 1950) 546. * * * When we make the belief of the citizen the basis of government action, we move toward the concept of total security. Yet total security is possible only in a totalitarian regime -- the kind of system we profess to combat."

Laird v. Tatum, 408 U.S. 1, 28, 92 S.Ct. 2318, 2333 (1972) (Dissent by Justice Douglas):
"This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image * * *"
     Those who do not read cases are missing an important part of the history of this nation.


     There are very specific reasons why we have "case law:" (1) published cases provide flesh to general constitutional and statutory provisions, providing the meaning of terms within them and demonstrating their application to specific fact situations; (2) via the principle of stare decisis, there is no need to constantly and repeatedly litigate the same issue over and over again and doing so is prohibited; and (3) cases provide unique glimpses into history. Case law, "decisional authority," is just as important as constitutional and statutory provisions.

     But some ignore the importance of case law. Frequently, people who lack an understanding of this importance make comments like "So why would we give any credance [sic] to the lying, lawyer 'case law?'  It's all based on deceit and trickery!  You build your house on smoke and mirrors and guess whose company you've joined!" Statements like this surely reflect a frustration with the legal system, but most often the reason such statements are made is premised upon ignorance.

     If decisional authority is so evil, then let's banish it immediately tomorrow. If this were done, then there could no longer be any reliance upon those landmark decisions of the past protecting the liberties of the people. Those cases protecting free speech, freedom of the press, and a multitude of other constitutional provisions would no longer have any effect. Judges would be free to make whatever decisions they desired, good, bad or indifferent. Appellate judges could likewise with impunity decide an appeal any way they wanted, good, bad or indifferent. And with no cases being published, nobody would know whether justice was meted out in any given case. Banishing case law would only return us to the days when decisions of courts were unknown, unavailable or concealed, and it should be obvious to all that concealment protects injustice. Those who advocate dispensing with case law are unwitting dupes and they fail to realize that taking such an action would only increase tyranny, not decrease it.

     Those who wish to do away with decisional authority are essentially lazy. Most feign some interest in the "law," but a common characteristic of these advocates is that they seldom ever read any statutory law. They denigrate case law because they obviously have no skills to read and learn. They are like the "Levelers" of the French Revolution who wished that everyone would be "leveled" to the same standard of living, and the "Levelers" were the forerunners of the Communists. The "anti-case law" crowd would like to banish case law so that they will never be required to read it; of course with case law banished, nobody else could read it either and they would be on the same level as these modern "Levelers."

     Publishing cases and making them known to the citizenry is essential for us to know what is occurring inside American courts. Depriving the people of this knowledge would only foster and promote tyranny. If people are concerned about what is happening in the courts, the problem does not arise from the existence of case law. The problem arises from the absence of activity in building "freedom case law." But the building of favorable case law will not be achieved by those misguided fools who war against an imaginary foe, case law.

     The "anti-case law" advocates simply want to do away with a part of the law so that study of the law is made easier because less reading is required. They want the "easy road" and despise hard tasks. Frederick Douglass described these "anti-case law" people as follows:

"Those who profess to favor freedom, and yet depreciate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle! Power concedes nothing without a demand. It never did, and it never will. Find out just what people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress."