Date: Wed, 30 May 2007 14:48

From: John Blackie

Subject: Contrasting the practice of precedent US v Commonwealth

Looking at this from the Scottish perspective it may, indeed, be that working with a principle framework does play a part in using older cases. At least in certain areas, in particular Property Law. but also for example aspects of unjustified enrichment and of contract, Scottish judges will sometimes still use the authoritative juristic writing of the 17th to the early 19th century ("the institutional writers") to give a framework of principle, and also refer to cases back to the eighteenth century (and very occasionally earlier) as well. Statistically it is clear - it is quite small jurisdiction - that more older material is cited in Scotland than in any other apart from South Africa (which is also a mixed legal system). There are though other factors at work, I believe. One relates to the size of the system. A small system that is not codified uses earlier material because of a lack of later material - a consequence of the relatively small case law. Another may be that an awareness of the distinctiveness of the system plays a part. With that comes an inclination to consider the system as long established. The last of these factors may play a part in England and Australia, Canada and New Zealand. The last of these is a small system, but unlike Scotland it sees itself in all areas as part of ongoing English/Commonwealth development. (Scotland places itself in that way only in some areas - e.g. the question of duty of care in negligence.) So it is not quite right in this context to talk of the "UK".

An interesting comparison are the two modern leading cases in the Scots law of unjustified enrichment and the English law of restitution both holding that a payment made under error of law could be recovered.

The Scottish unjustified enrichment case, Morgan Guaranty Trust Company of New York v Lothian Regional Council 1995 SC 225, relied significantly on the eighteenth century case, Stirling v Earl of Lauderdale 1733 Mor 2930. This case had been disregarded in Glasgow Corporation v Lord Advocate 1959 SC 203 on the ground that the judgement as reported was too short. (This is the case that Ross Macdonald at Dundee University referred to a few weeks in an ODG/RDG discussion of the shortest judgement with the biggest impact; he was too modest: it is in fact his obtaining of the background papers to the case which prompted the court in Morgan Guaranty to take it seriously.)

The English case, Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, could not go about things in that way - all earlier English material indicated that payments made under error of law were not recoverable. It proceeded to abrogate the rule, in contrast to the Scots court rediscovering what the rule had originally been.

Where a system does use material from fairly far back in time there is a question about how far longevity strengthens or weakens it. Different judges in different context can be seen as taking different approaches to that to achieve the purpose they wish. (For Scotland there is an essay by me seeking to explore that: John Blackie, 'Old and Foreign: History, Historiography and Comparative Law' in Lindsay Farmer and Scott Veitch (eds) The State of Scots Law (Butterworth, 2002) 75 - 96).

________________________________
From: Chaim Saiman
Sent: Tue 29/05/2007 22:02
Subject: ODG: Contrasting the practice of precedent US v Commonwealth

Dear ODG readers:

I was hoping for some assistance/insight into the following issue:

I am interested in the exploring the different practices of precedent in US and Commonwealth law. Most specifically, I am focusing on the age of the precedents used. In the typical private law case, US courts rarely reach back for a case that is more that 40 or so years old. (They rarely pierce the WWII vale.) By contrast, Commonwealth courts routinely and unselfconsciously cite cases that are 100, 200 and sometimes even 300 years old. They display little, if any, of the hesitation found in US courts that do the same.

I think that what underlies the US practice is the view that facts decide cases. Thus, courts look for similar transactional patterns in similar industries, as well as overall market and social conditions. For this reason, as you move too far away in time, the precedent is less compelling since the era of the case and the aura of its law is simply too removed from the question at bar.

UK courts do not display this tendency. They seem to take complex commercial cases and reduce it to some core analytic structure (what I am calling the "transactional DNA") to express what legal issues this case is about. Courts tend to do so in a highly schematized fashion (A sells to B who contracts with C etc. -- incidentally, one rarely finds such writing in US law anymore). Once the court has boiled the case down to its elemental components, it searches for cases displaying similar analytical relationships. When comparing "DNA" the facts are far less important that the analytic match. Thus it does not matter much if a court compares a simple 18th-century transaction for the purchase of barley or wool with a complex international derivative transaction of the 21st-century (e.g., Westdeutche). The core legal issue is the same and can be analyzed in each case through analytic reduction and abstraction. In Commonwealth jurisprudence legal rules easily travel across time and space.

I am looking for parings of cases (preferably contract/restitution/tort cases) that display these differences well, or even UK/Commonwealth that reason in this fashion. Thus far I have found AG v. Blake, Foskett v. McKeown, Williams v. Roffey, and In re Goldcorp useful in this regard. Comparing these cases to similar US cases brings out the above mentioned points well.

Secondly, I was wondering whether anyone is familiar with any academic writing discussing either the comparative age of the precedents or the broader methodological issue described. The majority of the writing on this topic seems to center around whether courts have the power to depart from precedents, but I have not found much writing addressing the issues described above.

Feel free to respond off list if you deem it more appropriate

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