From: Chaim Saiman
Sent: May 29, 2007 5:02 PM
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.