Anaya Nolan
Case law, also known as common law, is a type of law that is based on precedents set by previous judicial decisions rather than on constitutions, statutes, or regulations. It is a system that is predominantly used in common law countries such as the UK, where it is particularly important as the doctrine of precedent applies. In common law, judges may refer to various types of persuasive authority, such as legal encyclopaedias, the published work of the Law Commission, or even the Highway Code, to decide a case. Given the vast number of cases heard across England and Wales, only a small percentage of cases are reported in law report series, with only about 2% of cases being reported in print or online media. However, with the advent of electronic sources, unreported transcripts of judgments are now available on major legal databases. Additionally, the UK's long history of case law reporting, which dates back to before 1865, has resulted in a substantial body of historical case law that is accessible through modern databases.
| Characteristics | Values |
|---|---|
| Percentage of cases reported within a law report series | 2% |
| Common law country | UK |
| Databases for case law research | HeinOnline, Westlaw Edge UK, LexisLibrary, HeinOnline's Fastcase Premium, Lexis Library |
| Number of cases addressed | Canada Supreme Court Reports: nearly 10,000 cases; Early American Case Law: nearly 2 million pages |
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What You'll Learn
Case law reporting in the UK
The ICLR's Law Reports are arranged by court and are read by the judiciary before publication, including arguments of counsel. They also publish the Weekly Law Reports, which are printed more quickly and may include cases that won't be in the Law Reports. Since 1865, other commercial law reports have been established, such as the All England Reports, which cover all important cases, as well as more specialist reports.
The British and Irish Legal Information Institute (BAILII) provides access to transcripts of UK case law, including the full text of all the ICLR's series of law reports from 1865 onwards. The Judicial Committee of the Privy Council's (JCPC) website also includes judgments from November 2009 onwards. The UK National Archives provides access to cases from 2003 onwards, and HM Courts & Tribunals Service offers the text of decisions from various courts.
Subscription services such as JustisOne provide access to extensive databases of UK case law, including judgments from the Court of Appeal, High Court, House of Lords/Supreme Court, and Privy Council. These services also offer access to reports from other jurisdictions, such as the Times Law Reports and International Law Reports.
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Case law in common law systems
Case law, also used interchangeably with common law, is a law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in England, the High Court and the Court of Appeals are each bound by their own previous decisions.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and law reports. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
In common law systems, courts decide the law applicable to a case by interpreting statutes and applying precedents that record how and why prior cases have been decided. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis, called ratio decidendi, then constitutes a precedent binding on other courts. Further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding.
In common law systems, law professors have traditionally played a much smaller role in developing case law than professors in civil law systems. Because court decisions in civil law traditions are historically brief and not formally amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges.
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Case law and academic writing
Case law, also used interchangeably with common law, is a law based on precedents set by past judicial decisions rather than law based on constitutions, statutes, or regulations. In common law systems, courts decide the law applicable to a case by interpreting statutes and applying precedents that record how and why past cases have been decided. Case law becomes part of the law by setting legal precedents where there is no legislation or interpreting legislation.
Academic writers and law professors have traditionally played a minor role in developing case law in common law systems. Historically, common law courts relied little on legal scholarship, and it was rare for an academic writer to be quoted in a legal decision. However, today academic writers are often cited in legal arguments and decisions as persuasive authority. They are referenced when judges attempt to implement reasoning that has not yet been adopted by other courts or when a judge believes an academic's restatement of the law is more coherent than that of the courts.
Academic writings by prominent judges, such as Coke and Blackstone, have been exceptions to the general rule that academic writers are rarely cited in common law systems. Some widely cited non-binding sources include legal encyclopaedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute.
Case law research can be conducted through various databases and law reports. Databases such as HeinOnline provide access to U.S. state and federal case law and select international case archives, including historical cases from the late 1700s through the 1920s. Law reports, such as the All England Reports, cover all important cases, while others are more subject-specific. However, only a small percentage of cases are reported in law report series due to the high number of cases heard across England and Wales.
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Case law databases
Case law, also known as precedent or common law, is the body of prior judicial decisions that guide judges in deciding issues before them. There are several online databases that provide access to case law.
The Library of Congress, for example, provides access to digitized bound volumes of the U.S. Reports from 1754 to 2012, as well as access to HeinOnline, which includes U.S. Supreme Court case law and Early American case law. The Library of Congress also provides free legal research guides to help researchers locate online case law sources.
In addition, the Law Library Reading Room at the Library of Congress provides public access to Westlaw Patron Access, which includes court decisions indexed using West's Key Number System, and Bloomberg Law Patron Access. Access to Bloomberg Law is limited to one patron at a time in the Law Library Reading Room.
Other databases that provide access to case law include Lexis, Westlaw Edge UK, LexisLibrary, and HeinOnline (available to holders of an Oxford SSO). The British and Irish Legal Information Institute also provides free access to British and Irish judgments, with general coverage starting in the mid-1990s and including earlier key judgments.
It is important to note that while there is an abundance of free case law available online, many of the editorial enhancements and finding aids that legal researchers are accustomed to may not be available through these free sources. For example, these sources may not provide digests or headnotes, which organize cases by points of law. Instead, they may rely primarily on browsing and keyword searching to find relevant cases.
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Case law in civil law systems
Civil law, also known as continental European law, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). It is the most common legal system in the world, practiced in about 150 countries. Civil law is typically followed by countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern European countries, and East Asian countries.
Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. These codes are systematically collected interrelated articles, arranged by subject matter in a pre-specified order. They explain the principles of law, rights, and entitlements and how basic legal mechanisms work. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and that judges must follow. While civil law systems do not place much emphasis on court decisions, they tend to produce a large number of reported legal opinions. However, these opinions are often unofficial or commercial, except for the highest courts.
In contrast to common law systems, civil law judges give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. There is no doctrine of stare decisis in the French civil law tradition, meaning that the precedent of courts is non-binding. This results in civil law codes needing to be constantly changed. While court decisions in civil law traditions are typically brief, much of the exposition of the law is done by academics rather than judges, and this is called doctrine.
Civil law systems can be contrasted with common law systems, which originated in medieval England and are followed by countries that were former British colonies or protectorates, such as the United States. Common law systems rely heavily on judicial precedent and recognize prior court decisions as legally binding. Common law systems are less prescriptive than civil law systems, and they emphasize seeking reorganization rather than liquidation when a business faces financial trouble.
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Frequently asked questions
Only about 2% of cases are reported within a law report series, due to the high number of cases heard across England and Wales.
The Canada Supreme Court Reports include nearly 10,000 cases.
The Early American Case Law collection spans nearly 2 million pages.
Before 1865, barristers reported case law, and these reports were known as the nominate reports. The English Reports is a series containing these reports.
After 1865, commercial law reports were established. The All England Reports cover all important cases.
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