Six Levels of Precedents Part 1

The Unpredictability of Precedents • Precedents help narrow the range of legal choices judges face when they justify a decision Six Levels of Analysis: 1. Reasoning by Example in General: ○ Accepting one choice and rejecting another, because the past provides an example that the accepted choice somehow worked ○ No rules tell the decider how to choose which examples are similar and which are different. ○ Example: § Robert wants to climb a tree but wonders whether its branches will hold. He chooses to attempt to climb the tree because his older sister has just climbed the tree without mishap 2. Examples in Law ○ Decisions in prior cases provide examples for legal reasoning. ○ Judges will look at what other judges have said about the meaning of a statute, a constitutional provision, or a common law rule when applying similar facts. ○ Precedents typically emerge out of appellate law • The Three Step Process of Reasoning by Example: ○ Powerful legal traditions impel judges to resolve cases by using solutions drawn from similiar problems reached by judges in the past ○ Three step process: § Sees a factual similarity between the current case and one or more prior cases § Announces the rule of law on which the earlier case or cases rested § Applies the rule to the current case • How reasoning by example perpetuates current case and one or more prior cases § Announces the rule of law on which the earlier case or cases rested § Applies the rule to the current case • How reasoning by example perpetuates unpredictability in law ○ The judge must determine which facts in the current case are most important to the outcome and link them cases with facts that the judge thinks are similar. § This gives judges the power over their own cases and interpretation of precedents. ○ Fact Freedom: how we refer to the judicial freedom to choose the governing precedent by selectively sifting the facts of prior cases and weighing their relative significance.