Kara Sears
Common law, also known as case law, is a collection of court decisions developed over hundreds of years by superior courts in Australia, England, and other countries. It is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, common law relies on detailed records of similar situations and statutes, as well as judicial decisions and treatises, to guide judges in their decision-making process. These records are maintained through court documents and historically documented in collections of case law known as yearbooks, law reports, and case law reporters. With the advent of the digital age, these records are now also available through online databases such as Westlaw and Lexis Advance, making it easier for researchers to locate and study past cases.
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What You'll Learn
Court records and case law
Common law, also known as case law, is a collection of court decisions developed over hundreds of years by superior courts and the courts of other countries. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. The doctrine of precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports.
In the Middle Ages, the main sources for the history of common law were the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. They were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn.
In the present day, law reporting has been regularised. Official and unofficial law reporters attend court and take shorthand notes. In other courts, decisions of judges are delivered orally and recorded verbatim by the court stenographer. The cases within reporters are arranged chronologically. In the digital age, legal publishers have created databases like Westlaw and Lexis Advance to allow researchers to locate cases quickly and efficiently. These databases compile, organise, and classify judicial opinions, and include added features and annotations that allow for in-depth research.
Case law, which is recorded in Law Reports series, provides the bulk of law in the United Kingdom and acts as a source of law through the mechanism of the doctrine of precedent. According to the doctrine of precedent, a court is bound by the decisions of a court above it and, usually, by a court of equivalent standing. Superior courts have the power to overrule decisions of lower courts and, in certain cases, to overrule their own decisions. The modern doctrine of the binding force of judicial precedent only fully emerged when there was good law reporting and a settled judicial hierarchy.
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Law reports and yearbooks
Law reports are a vital component of the common law system. They are published series that record case law, which forms the bulk of the law in certain jurisdictions, such as the United Kingdom. These reports are created through the process of law reporting, which has been regularized since the late 19th century. Official and unofficial law reporters attend court proceedings and record the decisions of judges, either verbatim or through shorthand notes. The reports are then published, with older reports being compiled into volumes known as "nominate reports." The establishment of organizations like the Incorporated Council of Law Reporting (ICLR) ensures the authoritative nature of these reports.
The doctrine of precedent, a fundamental concept in common law, is closely associated with law reports. According to this doctrine, courts are generally bound by the decisions of higher courts and courts of equivalent standing. Law reports play a crucial role in maintaining and disseminating these precedents, ensuring that past decisions guide the interpretation and application of the law in future cases. This promotes stability and consistency in the legal system.
Yearbooks are another critical medium for collecting and recording common law cases. Historically, the plea rolls, which served as official court records during the Middle Ages, and the Year Books were the primary sources for common law precedents during that period. The plea rolls, written in Latin, were bundled by law terms: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. These records are now preserved in the UK National Archives and are accessible online through the Anglo-American Legal Tradition site.
In modern times, law reports and yearbooks continue to serve as valuable resources for legal professionals, scholars, and researchers. They provide a comprehensive record of judicial decisions, allowing for the analysis and interpretation of case law over time. Additionally, with the advent of the digital age, legal publishers have created databases such as Westlaw and Lexis Advance, which offer efficient tools for locating and researching case law. These databases serve similar functions as printed reporters but often include additional features and annotations to facilitate in-depth legal research.
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Official and unofficial reporters
Official reporters are court stenographers who record judges' decisions delivered orally. They provide verbatim transcripts of court proceedings, ensuring an accurate and official record of the case. These transcripts are then compiled into law reports or case law reporters, which are published in volumes or databases. Law reports serve as a source of law and provide guidance for future cases. They are arranged chronologically and are often published by private-sector publishers who add indexing, references to key principles, and editorial analysis. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States.
Unofficial reporters, on the other hand, include barristers or lawyers who attend hearings and write up and publish reports of cases, known as 'nominate reports'. These reports are not considered official but contribute to the proliferation of information about a case. The uncertainty about what constituted the authoritative report of a judgment led to the establishment of the Incorporated Council of Law Reporting (ICLR), which publishes the Official Law Reports. This ensures that there is a clear and consistent source of law reporting.
In addition to official and unofficial reporters, the collection and recording of common law cases also involve the publication of scattered statutes and legislative decisions. These are often compiled and integrated into collections of case law known as yearbooks, which serve as historical references for precedents. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books, with the plea rolls being the official court records written in Latin.
The modern doctrine of the binding force of judicial precedent relies on good law reporting and a settled judicial hierarchy. This means that consistent and accurate reporting by official and unofficial reporters is essential to maintaining the stability and consistency of the common law system.
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Precedents and stare decisis
Common law is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through court records and are historically documented in collections of case law known as yearbooks and reports. The form of reasoning used in common law is known as casuistry or case-based reasoning. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
The doctrine of stare decisis, which means "to stand by things decided" in Latin, is a foundational concept in the American legal system. It holds that courts and judges should honour "precedent"—the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable and less seemingly random. Stare decisis may be simple at its core, but there are nuances and limits to the way it is applied. For example, vertical stare decisis—the idea that the decisions of higher courts take precedence over the decisions of lower courts—is deeply entrenched in the American legal system. This idea is part of what makes the Supreme Court "supreme". By contrast, horizontal stare decisis holds that prior decisions made by courts at a particular appellate level (such as a federal court of appeals) should provide some precedent for cases heard by courts of the same appellate level.
The stare decisis concept lessens the need for subsequent litigation and further saves the time and energy of the judiciary by preventing it from having to continually decide the same legal question or issue if it has already been decided in another case. It is frequently observed that there is a high potential for bias and arbitrary decision-making when it comes to legal matters. The doctrine of stare decisis forbids judges from acting arbitrarily or with bias by requiring them to follow existing precedents, thus preventing such unwelcome and vicious factors from interfering with fair and reasonable adjudication.
Some constitutional scholars propose the idea that certain legal opinions amount to "super precedents" that are so fundamental to American justice that they are virtually permanent decisions and thus impervious to overruling. The list of so-called super precedents is debated nearly every time a US Supreme Court justice goes through a Senate confirmation hearing.
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Case law research
In common law jurisdictions, such as the United States, the United Kingdom, Australia, Canada, and others, the decisions of higher courts set precedents that guide lower courts in interpreting and enforcing the law. These precedents are maintained through court records and historical documentation in the form of law reports, also known as yearbooks. The doctrine of precedent, or stare decisis, is a fundamental principle in common law, where prior decisions of higher courts are binding on lower courts, promoting stability and consistency in the legal system.
The process of case law research is essential for legal professionals to understand how precedents apply to new cases and how judges interpret and apply the law. It involves analysing past cases with similar facts or legal questions to guide the decision-making process in the current case. This ensures that similar cases are treated with the same principles and that the law is applied consistently and fairly.
While case law research provides guidance, it is important to note that lower courts can deviate from precedents if they are outdated or if the current case significantly differs. Additionally, societal changes and evolving interpretations can lead to the overturning of past precedents, as seen in historical examples of marginalised groups advocating for their rights.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by superior courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In the past, barristers would attend hearings, record cases, and publish reports of cases, often under their own name. These reports are generally referred to as 'nominate reports'. Today, official and unofficial law reporters attend court and take shorthand notes. Cases are also recorded verbatim by court stenographers.
Particularly interesting or significant court judgments are reported case by case and collected into a variety of books known as law reports. Cases are arranged chronologically within these reporters.
Law reports are a series of books that collect and compile significant court judgments. They are also known as yearbooks and provide the bulk of law in the United Kingdom.
The doctrine of precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. According to the doctrine, a court is usually bound by the decisions of a court above it.
