Gavin Howe
Case law, also known as common law, is a type of law that is based on precedents set by previous judicial decisions, rather than being based on constitutions, statutes, or regulations. It is used in several areas of law, such as torts and contracts, where statutory law does not govern most relevant issues. Case law is particularly important in common law systems, such as in England, where courts are bound by their own previous decisions in similar cases. This principle, known as stare decisis, dictates that lower courts should make decisions consistent with the previous decisions of higher courts. In some jurisdictions, case law can be applied to criminal proceedings or family law. Additionally, case law can be used to interpret statutes and clarify ambiguities or interpret clauses. When two cases are about the same thing, the precedent set by the earlier case will likely be followed, unless there is a distinguishing factor that leads to a different outcome.
| Characteristics | Values |
|---|---|
| Definition | Case law is a law that is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. |
| Other names | Common law, judge-made law |
| Examples | R v Jogee, Bush v. Gore |
| Sources of case law | Judicial decisions, statutes, annotated codes |
| Case citations | Include case name, law report or online legal authority, and year. |
| Case name format | Party name 1 v Party name 2 |
| Case name capitalisation | Capitalise party names, use lower case 'v' |
| Case name in text | Italicise case names mentioned briefly in general content |
| Case name in lists | Use roman type for cases in reference lists and other long lists |
| Case law reporters | Official, unofficial |
| Official reporters | Designated by statute or court order, contain text of opinion |
| Unofficial reporters | Contain text of opinion, headnotes, topics, key numbers, and other research aids |
| Case law digest system | Topics (broad legal issues) and Key Numbers (specific legal issues within broader issues) |
| Case law by country | Common in Nordic countries, England, Scotland, Quebec, Louisiana, and the U.S. |
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What You'll Learn
Case citations
In common law countries with an adversarial system of justice, the names of the opposing parties in a case title are separated by the abbreviation "v", which stands for the Latin word "versus", meaning "against". When case titles are read out loud, the "v" can be pronounced as "and", "against", "versus", or "vee", depending on the context. Most Commonwealth countries follow the English legal style, where civil cases are pronounced with "and". For example, "Smith v Jones" would be pronounced "Smith and Jones".
In the United States, official reports of Supreme Court cases are published by the U.S. Government in the United States Reports, abbreviated as "US". There are two parallel citations for Supreme Court cases: those published by West in the Supreme Court Reporter, abbreviated as "S.Ct.", and those published by LexisNexis in the United States Supreme Court Reports, Lawyers' Edition, abbreviated as "L.Ed." or "L.Ed. 2d". Court of Appeals cases, published only in West's Federal Reporter, are abbreviated as "F.", "F. 2d.", or "F. 3d.". Federal District Court cases are published only in West's Federal Supplement, abbreviated as "F. Supp." or "F. Supp. 2d".
In California, State Supreme Court cases are published officially in the California Reports, series 1-4, while Court of Appeals cases are officially published in the California Appellate Reports, series 1-4. Unofficial reports are published by West in the West's California Reporter, series 1, 2 & 3.
In addition to official reporters, cases can be published in unofficial reporters, which include headnotes, topics, key numbers, and other aids to assist researchers. A single case may have two or more citations, known as parallel citations. For example, the case of "Bush v. Gore" was cited in the official reporter United States Reports, as well as in two unofficial reporters, Supreme Court Reporter and Lawyer's Edition.
A third type of citation is the European Case Law Identifier, a "neutral" citation system introduced by the Council of the European Union in 2011, in which Germany participates. The most important cases of the Federal Constitutional Court are published by the court in its official collection, abbreviated as BVerfGE, while BVerfG stands for Bundesverfassungsgericht, the German court name, and E stands for Entscheidung (decision).
Legal encyclopedias are another way to find case citations on topics. Generally, a legal encyclopedia is arranged alphabetically by topic, which are further divided into more detailed subtopics. Legal encyclopedias provide broad coverage of American state and federal law, including excerpts from judicial decisions and statutes. The two most popular legal encyclopedias for researching federal law are American Jurisprudence (AmJur) and Corpus Juris Secundum (CJS).
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Common law
The principle of stare decisis – a Latin phrase that can be translated as 'to stand by things decided' – is key to common law. Stare decisis dictates that a court should follow precedent and decide a case in a way that is consistent with previous decisions made by courts on similar matters.
The idea is that judges should decide similar cases in a similar way, regardless of their personal opinions, to provide consistency and predictability in the law. This is particularly important when two cases are substantially similar in terms of their facts, the issues they raise, and the applicable law.
However, the stare decisis principle is not always strictly followed. Judges may distinguish precedent – that is, they may find that a previous case is different in some way, and therefore they do not need to follow it. This could be because of differences in the facts of the two cases, or because of changes in society or the law since the previous decision was made.
In some situations, a higher court may overrule a previous decision – for instance, if it is seen to have been wrongly decided, or if it conflicts with other decisions on similar matters. This can only be done by a court that is higher in the hierarchy than the one that made the original decision, or by the same court with a different membership. Lower courts never overrule higher courts, but they can express disagreement and suggest that a higher court overrule itself.
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Civil law
In civil law, cases involve conflicts between people or institutions, such as businesses. Civil courts handle a wide range of disputes, including those between landlords and tenants. Cases are typically initiated when one party files a "Complaint", to which the other party may respond with an "Answer" or "Motion". This marks the beginning of the pre-trial stage, where both sides exchange information and learn about each other's cases. This stage is known as "Discovery", where litigants must provide information about the case, including witness identities and relevant documents. The purpose of this stage is to prepare for the trial by assembling evidence and preparing witnesses.
During a civil trial, the decision-maker, either a judge or a jury, examines the facts of the case to determine the appropriate law to apply. The court or jury then decides on the legal consequences of the parties' actions, based on a "preponderance of evidence" standard of proof. This means that the winning side presented evidence that was more likely to be true than not. It is important to note that decisions are based on the persuasiveness, rather than the quantity, of the evidence.
To avoid the costs and delays associated with a trial, judges often encourage litigants to resolve their disputes through mediation, arbitration, or other alternative dispute resolution methods. As a result, many cases are settled outside of court. Settlements usually involve monetary agreements, which may be enforced by a court order.
It is worth noting that civil cases do not follow a uniform set of procedures. Certain types of cases, such as summary eviction cases, have unique procedures outlined in the court's rules or governing statutes. Therefore, it is advisable to refer to the specific rules and statutes relevant to the case at hand.
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Criminal law
The principle of double jeopardy is a procedural defence in criminal law that protects an accused person from being tried again on the same (or similar) charges following an acquittal or conviction. This principle has been recognised for over 800 years in English law and is also protected by the International Covenant on Civil and Political Rights, which states that "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted".
In the UK, the Criminal Justice Act 2003 partially abolished the double jeopardy rule in England, Wales, and Northern Ireland. Under this Act, serious offences may be retried following an acquittal if new and compelling evidence is found and if the retrial is deemed to be in the public's interest. Serious offences are defined as those that carry a maximum sentence of life imprisonment and have particularly serious consequences for victims or society as a whole, such as murder, manslaughter, and rape.
If new evidence is discovered, the police may reinvestigate the case and apply to the Court of Appeal for the acquittal to be quashed. The Court of Appeal will only grant this if it is satisfied that the new evidence is highly probative of the case against the acquitted person. The Court of Appeal may also refuse to quash an acquittal if it is not considered in the interests of justice to proceed with a retrial.
It is important to note that the double jeopardy protection only applies to an identical prosecution for the same offence. A different offence may be charged on identical evidence at a second trial. Additionally, the principle does not apply to prosecutions by two different sovereigns unless the relevant extradition treaty expresses a prohibition.
In Scotland, the law on double jeopardy has not been changed, and a new trial can be initiated if the acquitted person makes a credible admission of guilt. In other countries, such as Germany, India, and Japan, their respective constitutions or basic laws provide varying degrees of protection against double jeopardy.
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Precedent
In the legal context, precedent and analogy are two central and complementary forms of legal argument. Precedent, 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. Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law" or precedent.
The doctrine of stare decisis, a Latin phrase meaning "let the decision stand", is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. 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 the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents that record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. A notable example of when the court has overturned its precedent is the case of R v Jogee, where the Supreme Court of the United Kingdom ruled that it and the other courts of England and Wales had misapplied the law for nearly 30 years.
The necessary analysis, called ratio decidendi, 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 some jurisdictions, case law can be applied to ongoing adjudication, for example, in criminal proceedings or family law.
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Frequently asked questions
Case law is a law based on precedents, or the judicial decisions from previous cases, rather than laws based on constitutions, statutes, or regulations.
Common law is case law that creates law. In common law systems, courts follow the doctrine of stare decisis, meaning that most courts are bound by their own previous decisions in similar cases. Civil law, on the other hand, generally refers to codes enacted by legislative bodies and regulatory law established by executive agencies based on statutes.
Case citations should include the law report or online legal authority that hosts the relevant judgement or decision. Specify the people or organisations involved, capitalising their names and using a lowercase 'v' between them, followed by the year, a comma, and then the judgement or court. For example: *Smith v Jones*, 2023, NSWSC 34567.
A civil case begins when one party files a "Complaint". The other party may respond with an "Answer" or "Motion". Both sides then exchange information and learn about the strengths and weaknesses of the other side's case. After this, the parties prepare for trial, gathering evidence and organising witnesses. The case is then heard by a judge or jury, who examines the facts of the case and applies the law accordingly. Finally, the judgement is entered, and the parties may appeal if they wish.
Case law can be applied to criminal proceedings to provide guidance on how to handle similar issues that have arisen in previous cases. In criminal cases, the government prosecutes individuals who are accused of violating public codes of behaviour as outlined in state laws.
