Matt M's Paper on Discretion

Matt Maier
Professor Ammon Allred
LST- 2010-001
February 2, 2010
These Facts or Those Facts
Llewellyn in his writing from, “The Bramble Bush,” is trying to explain how courts use precedent in two distinctly different ways in order to obtain an outcome favorable to the court. Precedent is used by the courts, both judges and lawyers to legitimize their beliefs and rulings established in the case they are presently working. Precedent is the idea that if someone else has already recognized a fact that it would be useless to go over all the information used to find the fact again if they can just use the fact or ruling previously established.
If a court has found in the past that it will prosecute someone for a given crime even if that crime is small, precedent may become established and therefore free any future court from having to decide whether or not to try future lawbreakers for a similar petty crime. Because precedent has been established, the trying of an individual for such a crime becomes routine. While precedent may save time and allow the actors in a trial to move on to other aspects of the case or a whole new case in general, it neglects the case at hand and may allow pertinent information to be overlooked. Not all the characteristic of similar cases are analogous enough to allow precedent to supersede the facts of each individual case.
Llewellyn makes clear that there are two different views of precedent which can be applied to a case. The first is the loose view which is used when a court decides that its decision is correct and it rest all or some of its verdict on the precedent of a previous case. The facts of the case in which the precedent have been established are often completely ignored. When the court has found the precedent it wishes to use, digging deeper into the case where the precedent came from may produce unfavorable results and therefore this temptation is ignored.
The second view of precedent which is used by the courts is the strict view. The strict view allows judges and lawyers to pick and choose whether a precedent previously established is correct. It permits judges and lawyers to look deeper into the facts which have established the precedent and remove parts or all of the previously established precedent. These two views contradict each other quite obviously. While the use of loose precedent allows court officials to establish a fact on precedent without researching the information by which the precedent was made, strict precedent permits the same court officials to dissect a case to see whether any of the facts found are in retrospect not useful in obtaining such a precedent, and therefore making it false.
On page 17 of the text book “Before the Law”, there is the case, State vs. Oliver 70 N.C.60 (1874), in which a husband returns home from drinking and for no apparent reason decides to whip his wife with two switches about four feet long. Many people were present and stated that the man had acted in an unnecessary manner. His wife received much bruising which lasted about two weeks. The courts decided that the man had no reasoning for beating his wife and subsequently fined him $10. The man appealed his case but the judgment stood.
The court in State vs. Oliver 70 N.C.60 (1874) used the strict view of precedent to establish that although North Carolina in the past had ignored the victims in such cases, that it was ready to judge them quite differently. The court used strict precedent to strip away its previous findings and established a new precedent. In several previous cases Joyner vs. Joyner 53 N.C. 322 (1862), State vs. Black 60 N.C. 262 (1864), State vs. Rhodes 61 N.C. 453 (1868), the courts had decided using the loose view precedent that unless permanent harm had been done it would be a greater crime to expose the inner workings of the relationships in question than to punish a husband for beating his wife. Thankfully, the courts eventually decided that their loose view of precedent in such cases was unacceptable. Whether or not courts decide to use precedent, the individual facts in such cases where precedent is used should weigh more heavily in the minds of those deciding the facts of the case than the facts of cases that previous courts have heard.

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